My Lords, on behalf of my noble friend Lady Jones and myself I oppose the proposition that Clause 76 should stand part of the Bill. I will also speak to Amendment 240S in our names, which is an amendment to government Amendment 240R.
As the noble Baroness, Lady Tyler, said, Clause 76 would repeal the duty of local authorities, under Section 11 of the Childcare Act, to undertake and publish regular assessments of the sufficiency of childcare in their area. In so doing—I entirely agree with the noble Baroness —it would effectively neutralise the general duty, under Section 6, to ensure sufficient childcare for working parents.
The Government carried out a very inadequate consultation on this proposal, and produced findings which can be described, at best, as one-sided. Contrary to the Government’s claim, the consultation did not show support for removing the Section 11 duty, but rather for the need for revised guidance and a real effort by the Government to help all local authorities implement that duty as well as the best authorities are already doing. I agree that some action is necessary: where practice is variable; where there are shortages of childcare, as in many areas; and in relation to specific needs, for example parents who work unsocial hours or have disabled children,
This nurturing of the role of local authorities in driving up supply and continuous improvement in childcare is important. While some local authorities are doing it very well, they use different definitions and different methodologies, and many have poor action plans. As the noble Baroness said, this could and should be addressed, not by repealing the duty to assess sufficiency, but by providing guidance, developing a consistent measure of childcare demand, and a framework model for the action plans that need to come through—something the five-year review of the Childcare Act in 2009 showed was necessary. The Government may say they have revised the guidance, but they have not changed it in a way that addresses any of those issues. They have reduced 70 pages of
guidance—and there is an argument that that is far too long, and practice shows it is the case—to less than two pages of sketchy, top-level, vague requirements, sending a clear message to local authorities that this duty does not matter to the Government any more.
I think it is worth reminding ourselves of why the Childcare Act 2006 substantially strengthened the duties of local authorities to ensure sufficiency of childcare: first, to stimulate the local market to increase the supply of good-quality childcare; secondly, to enable working parents and those aspiring to work to access childcare; and, thirdly, through that to support economic growth in those areas—something that is very much to the fore now. Indeed, there is a very strong business case for seeing childcare not only as important for child development and parental choice but as an increasingly essential part of the infrastructure to support people getting into work, which was never more important than now, when many families are suffering the brunt of the recession.
The Family and Childcare Trust has undertaken detailed analysis of local authority performance under the sufficiency duty. It shows that some have done well, suggesting that the problem is not fundamentally one of legislation but of good practice and the level of capability of individual authorities. Repealing that duty under Clause 76 will drive a coach and horses through the sufficiency duty itself, as the position in Scotland has demonstrated. There, there is no duty—just statutory guidance, similar to what the Government now propose for England. A third of Scottish authorities do not collect adequate data, and Scotland has only half the proportion of private and voluntary providers because local authorities do not do the work to stimulate the market and promote new childcare providers in the way that the best English local authorities have done. A much better alternative would be to replace the three-year assessment with an annual assessment, to simplify the guidance and to include frameworks for consistent supply and demand measures, to require local authorities to produce an action plan and to monitor local authority performance against those plans.
Finally on Clause 76, perhaps the Minister will explain why the Government are effectively neutralising the sufficiency duty in childcare while at the same time bringing in a new sufficiency duty in the Care Bill in respect of local authorities’ duties to ensure that there is sufficient adult care in their area. That seems a contradiction; I wonder why it exists.
Government Amendment 240R is extremely important in its potential ramifications. It introduces, at a very late stage in the passage of the Bill, significant changes to the way local authorities have to secure publicly funded, free early-years provision for three and four year-olds, and potentially has serious implications for the quality of the provision purchased, especially for the most disadvantaged children, including those two year-olds who now qualify. The Government consulted on these proposals, and the overwhelming view of local authorities was that they would have a negative impact on childcare. The proposed regulations will mean that a local authority can no longer apply its own quality assessment when deciding which providers it will commission the free places from. Local authorities
will instead have to accept the most recent Ofsted judgment. Furthermore, the local authority will no longer be able to attach any conditions about quality or anything else to any provider that is rated good or outstanding.
On the face of it, I understand that in the interests of reducing duplication, requiring the local authority to accept the Ofsted judgment and not to do its own makes some sense, but I have some very specific concerns. First, the latest Ofsted inspection may be very out of date. It can be up to four years old. There may have been significant changes of leadership which have affected what is happening in a particular nursery. In short, the latest Ofsted judgment may not be a reliable indicator of current quality. If it was given a rating of good or outstanding, even four years ago, the local authority will not be able to look at the quality of that provider.
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Secondly, Members will know that there are four Ofsted judgments: “outstanding”, “good”, “needing improvement” and “inadequate”. The local authority will not, under these new regulations, be able to refuse to contract with a provider that is rated “needing improvement”, no matter how serious the concerns that Ofsted expressed. The minute that the Government have issued makes it clear that if parents want a place with a provider in that category of “needing improvement”, and the provider can offer a place, then:
“The provider can demand to be funded to deliver places for 3 and 4 year olds. The provider can also be funded for 2 year olds if there are not enough “good” and “outstanding” places locally”.
We should remember that these are very disadvantaged two year-olds; they are the only ones who can qualify.
Finally, the statement of policy intention envisages that the local authorities would “not normally” contract with a provider rated “inadequate”. However, neither the government amendment nor the indicative regulations prohibit contracting with an “inadequate” provider. This means that if a parent wants a place with a provider that is rated inadequate and the provider can supply it, the local authority could secure that place, which would mean children being placed in “inadequate” settings or in settings needing very considerable improvement because those providers will be able to demand funding. We see the prospect of public money paying for inadequate or poor care.
Therefore, our Amendment 240S would require that a provider has a rating of “good” or “outstanding” in order to contract with a local authority to provide free places. There is room for a debate on where that threshold ought to be, but there can be no acceptable reasons to force local authorities to contract with poor or inadequate providers. We know that there is a chronic shortage of high-quality provision in disadvantaged areas, and therefore that disadvantaged children will suffer most from these changes. Taken together, Clause 76 and government Amendment 240R will seriously undermine the availability and quality of childcare, and local government’s role in its continuous improvement. Taking Clause 76 out of the Bill and approving our Amendment 240S, along with new guidance, would enable local authorities to continue to stimulate the market and protect and drive up quality.