Nursery Management: Policy - Q&A: Your guide to the Children and Families Bill

The Children and Families Bill is entering its final stages in Parliament and is likely to receive Royal Assent this winter. The bill deals with a wide range of issues, including reforms to the adoption and fostering and the family justice systems; support for children with special educational needs (SEN); strengthening the role of the children's commissioner for England; improving statutory rights to flexible working, leave and pay for parents; and childcare regulation.

It includes a handful of proposals with practical implications of which nursery managers need to be aware.

How will the bill affect childminders?

The legislation establishes the legislative changes needed for the Government to introduce childminder agencies. This means enabling agencies to register with Ofsted and also to register individual childminders with themselves.

Readers will no doubt be aware that the agency proposals have been controversial with the national childminders organisation, the Professional Association for Childcare and Early Years, opposing the model (the Family and Childcare Trust also opposes the proposal in its current form).

Concerns centre on the inherent conflict of interest for agencies with a commercial interest also inspecting childminders; the potential for regulatory and quality improvement costs that are currently met by Ofsted and local authorities to be passed on to parents; and the viability of the agency business model.

The Government intends to begin a trial of agencies later this year, followed by an independent evaluation in early 2014 and subsequently a consultation looking at the final agency framework.

Will it change the role of local authorities?

The bill removes the Childcare Act 2006 section 11 duty for local authorities to produce childcare sufficiency assessments. The Childcare Act placed a duty on local authorities to provide sufficient childcare for working parents so far as 'reasonably practical'. There is no specific funding attached to the duty, so meeting this goal is a question of how local authorities use funding to plug specific local gaps.

With this in mind, the former Government introduced the section 11 duty to assess, to ensure an emphasis on closing gaps in provision that affect some working parents in particular, such as those with disabled children or those who live in the most disadvantaged areas.

In practice, sufficiency assessments have had a mixed impact due to funding constraints, complicated guidance and the Government's failure to support consistent measures and reporting.

Nevertheless, England's relatively strong performance in providing places compared to Scotland, which lacks a sufficiency duty, points to some long-term measure of success (although there are other factors such as funding at play here too). By removing the statutory section 11 duty, the Government has effectively signalled that progress against the sufficiency duty itself will be a matter of local discretion.

How will the new re-inspections work?

The Government has used the bill to legislate for its plan to allow childcare providers to pay for a quick Ofsted re-inspection. There are a number of important questions around this plan that are yet to be resolved, such as how much re-inspection would cost, under what circumstances a re-inspection could be requested and how Ofsted will prioritise its inspection resources. This is something for providers to keep an eye on.

How will the bill shape community services for children with SEN?

Nurseries and children's centres that work with children with disabilities and SEN will be interested in part three of the bill, which reforms the statutory framework shaping local services.

There are two major changes: first, there is a new requirement for local authorities to prepare and keep under review a plan for local service provision, and to publish clear information for the public on the services available. This new framework is designed to support local authorities to improve services and ensure local government is accountable, particularly to the parents and children accessing support.

The second significant change is the introduction of a single assessment process and the replacement of SEN statements by Education Healthcare Plans. These plans are being presented as a way to join up different services and provide parents and children with more control over support - for example, through the right to a personal budget and choice of school. The relevant healthcare commissioner will for the first time be required to deliver healthcare services specified in plans.

In principle, these developments are positive for nurseries that work with the families affected, whether in the private, voluntary or public sector. A clearer framework for reviewing services and commissioning should mean more gaps in provision are identified and addressed, and that it is easier for providers to influence how local funds are used. However, current tight financial constraints do mean that progress from this measure is likely to come over time.

The National Children's Bureau and the Pre-School Learning Alliance, among others, have also highlighted that under current plans it will not be possible to 'name' non-maintained early years providers in Education Healthcare Plans. This will limit the impact of the new plans for the youngest children and their families, as the majority of early years SEN services are delivered in the private and voluntary sector.

What does it mean for flexible working and shared parental leave?

The bill extends the UK-wide right to request flexible working - which is currently available only to those with young children and carers - to all employees.

This is not an unqualified right; it allows employees to request flexible working without fear of detriment and imposes a duty on employers to consider the request reasonably. Employers may still decline a request if they consider it is not reasonable - for example, if the cost to the business of the arrangement outweighs its benefits.

The legislation will also allow parents to share parental leave. This means that where mothers (or adopters) do not use the full quota of their statutory leave, they will be able to pass the remaining allowance and statutory pay to their partner. The right is based on shared care and economic responsibility for a child, so families of all types will be eligible.

There are some strings attached: parents must each individually meet the existing length of service and minimum earnings qualifying criteria for statutory parental leave. If parents cannot agree on an arrangement, parental leave defaults to the single block available under current arrangements.

Separately, the bill also aligns rights for adopting and surrogate parents with biological parents, and creates a right for partners to have time off work to attend two ante-natal appointments.

Individually, each of these steps will have a limited impact. For example, the Government estimates that each year an additional 64,000 people (out of more than 11 million eligible employees) will make a successful flexible-working request they would not have otherwise made as a result of the bill.

However, cumulatively these changes both respond to, and reflect, changing public expectations of flexibility in working hours, and the balance between work and family life.

More to come

Some of the changes proposed in the More Great Childcare paper were recently confirmed, such as revising the law so that local authorities have to make free offer funding available to good and outstanding providers. However, the Government says these changes will be legislated for at the earliest opportunity rather than through the Children and Families Bill.

The Coalition has also set out additional proposals to streamline early years regulation, most notably by merging the multiple existing Ofsted childcare registers into one scheme. The Government is now consulting on these plans and, if taken forward, these changes would also be part of a future bill.

More information

Children and Families Bill, http://services.parliament.uk/bills/ 2012-13/childrenandfamilies.html