Thank you to all our ChildForum members for making time to review and supply much feedback on the Ministry of Education's proposals to change some of the regulations and licensing criteria.
We have pulled together everything you said and developed the following summary. This has been presented to the Ministry as our joint reply.
Proposal 1: To cancel a service’s licence based on its provisional licence history
The MoE asks you: "Do you agree that the MoE should be able to cancel a licence when there is evidence that a service provider is not consistently complying with the regulations?"
Our reply: Strongly agree. But the wording of the amendment needs to be improved.
- The wording needs to be strengthened from allowing this to be an option to requiring that the MoE “… must cancel a licence when there is evidence…”. This is important if there is to be consistency between and across MoE regional offices and to ensure that one service provider is not favoured over another.
- All non-compliances must be included in the decision, whether non-compliance resulted in an actual licence downgrade or not.
The MoE asks you: "Do you agree that the regulations should be more explicit in what the MoE can consider when cancelling a licence because of the service provider’s provisional licence history?"
Our reply: Strongly agree
The MoE asks you: "Please give examples of what would be appropriate for the Secretary to consider when cancelling a licence"
Our reply: Services on a provisional licence that incur further breaches and avoid receiving a second licence downgrade because of already being on a provisional licence; the service’s rate of serious accidents and injuries, written directives provided to the service that support the service to avoid being placed on a provisional licence, and non-compliances identified following serious incidents and children leaving unnoticed that do not result in a licence downgrade.
We recommended the Regulation instead be amended as follows
Amend Regulation 32 instead as follows
(1) In regulation 32(1)(d)(iii), replace “.” with “; or”.
(2) After regulation 32(1)(d), insert:
(e) the service provider for a licensed early childhood service—
(i) has within the previous 6 years had one or more of the following: twice had a probationary or full licence reclassified as provisional licence or suspended; incurred further breaches while on a provisional licence, two written directives, non-compliances noted following two separate serious incidents involving a child and or complaints of a serious nature.
(iii) is currently not compliant with 1 or more of the following:
(A) the qualifications, ratios, and service-size standard: general set out in regulation 44:
(B) the health and safety practices standard: general set out in regulation 46
Or 2 or more of the following
(C) the curriculum standard: general set out in regulation 43:
(D) the premises and facilities standard: general set out in regulation 45:
(E) the governance, management, and administration standard: general set out in regulation 47; or
(iii) is not likely to comply with those standards in the future. Delete as this introduces a higher level of subjectivity
(F) has had one or more of the following occur to half or more of any other services under its control within the previous 6 years: twice had a probationary or full licence reclassified as provisional licence or suspended; two written directives, non-compliances noted following two separate serious incidents involving a child and or complaints of a serious nature.
- The terms "non-compliance and "not complying in the future" need greater definition and procedures in place to make it clear. Decisions need to be fact based.
- Consider a tiered system of non-compliance, i.e., not complying with an administrative task versus not complying with ratios are in two different classes of severity.
- An appeal process should a licence be cancelled needs to be available and made clear to service providers to minimise the likelihood of unfair decision.
- A service that has been placed on provisional in the past has served the punishment. Any new law would need to start from the day of the regulation changes and not include if a service has been on a provisional licence prior to the regulation change.
- In the first place:
- Non-compliance needs to be followed up better. Too often what is written as policy and changes made to appear to meet compliance is only a Band-Aid for the day of recheck.
- The MoE should stop issuing new licenses to ECE service providers with multiple licenses that have a history of multiple non-compliance breaches.
Proposal 2: To have a choice to reclassify the service’s licence as provisional in the event of an incident involving a child that the MoE considers warrant investigation - either the service provider and/or a third party would undertake the investigation
The MoE asks you: "Do you agree that, following an incident involving a child, the Secretary should have the ability to reclassify a licence as provisional while an investigation takes place?"
Our reply: No not to a provisional licence. But it must reclassify a licence as being under-investigation either by creating a new category of licence or it may be simpler to amend Regulation 11 to incorporate a service under-investigation into the probationary licence category.
A provisional licence implies, that there are non-compliances. Should the draft amendment under this proposal stand then it would mean that a service that has received a provisional licence but with no non-compliance could have its licence cancelled due to its provisional licence history.
We recommend instead the following amendments
Revoke Regulation 12. Probationary licence not to follow transitional licence or full licence
Revoke Regulation 15 (1)(c) a complaint has been lodged against the service provider alleging non-compliance with these regulations, and the Secretary considers that the complaint warrants investigation
Amend Regulation 11
On completion of the investigation the Secretary will return the full licence to the service, or reclassify the probationary licence to provisional or suspended or cancel the licence should non-compliance be identified.
- It needs to be made clear what is meant by an ""incident involving a child, that requires investigation"". The term ""serious"" needs to be added otherwise we will be investigating every ACC or incident whether minor or serious.
- There needs to be created a special category of licence for this.
- This would carry with it a presumption of guilt, whether a breach is confirmed or not, this would be contrary to natural law principles. Would it not be better to complete the investigation and arrive at an outcome before a presumption of guilt?
- Investigation itself should not be the rationale of any decision on the status of licence. However, the investigation should never be internal once the complaint becomes external.
- The MoE must do the investigations when this is linked to licensing.
- ECE services should not be placed in a position of trust to look at themselves with critical consideration.
- A good ECE service will be open to such an investigation if they want to improve and ensure serious incidents involving a child are not repeated.
Proposal 3: To make legal the MoE's practice of issuing written directives to services that breach regulations for health and safety matters without placing a service on a provisional or suspended licence. And, to offer services up to 5 days to fix breaches in return for not receiving a licence downgrade
The MoE asks you: "Do you agree that this approach to issuing written directions strikes the right balance between requiring a service to immediately address health and safety matters while allowing them to safely remain open?".
Our reply: No. Proposal 3 is not necessary. It is wrong to make a change to disguise the real level of non-compliance in the ECE sector by limiting the number of services recorded as having licence downgrades. Licence breaches would remain secret since the written directive would not be required to be displayed for parent and visitor information. Proposal 3 would formalise the discretionary power of the MoE to allow services with a major breach or breaches in health and safety to continue to operate without any licensing sanction. It is also wrong to do this for the purpose of limiting the financial impact on the business of the service provider and therefore does not strike the right balance between ensuring compliance and child safety and health.
Proposal 3 is not necessary because currently under Regulation 16 (1)(b) a provisional licence must specify for each condition the date by which the condition must be complied with. The Ministry already has the power to specify the number of days within which a service must fix licence breaches.
The Ministry of Education needs to show it takes seriously its responsibility to ensure ECE service compliance with regulations and licensing criteria. Therefore, every service that breaches the minimum requirements, (and health and safety is too important to let some services get away with not having a licensing sanction), must be placed on a provisional licence providing there is no danger to any child of attending while the breaches are being fixed, or if there is danger to children then it must be placed on a suspended licence until the problems are fixed.
- The written directive should be treated in the same way how ERO report is treated - publicizing and being accessible to all stakeholders especially parents and prospective parents.
- The families of the service that receives MOE directives have every right to view those directives and these written directives should be on display for all parents and visitors who enter the centre. A service that has strong relationships with their children and parents would not have a serious problem with their families. I think one will find our families very supportive of our service because it's about relationships and they will know their ECE Service will work to do their very best to fix the breaches for the safety and wellbeing of our children.
- More MOE support for "not for profit centres". MoE may need to expand it's role needs to include a field component by regularly visiting centres and providing support by being visible and accessible to management, boards and teachers. I think historically MOE may have done this i.e. regular visits to centres.
- All ECE Services should have annual licensing criteria checks. These need to be random and thoroughly undertaken. All and each regulation must be proven to be met. All staff should be interviewed and given a chance to put in a written online report of their perception of how the service met the regulation criteria in the past year. There should also be an easy online version of reporting for parents and whānau
Proposal 4: To require existing service providers to apply for a licence amendment when there is to be a change of service provider before this happens (and not after)
The MoE asks you: "Do you agree that Clause 13(1) would better reflect that service providers have to apply for an amendment before there is a change in the identity of the service provider?"
Our reply: Yes. Also, the MoE needs to ask if this amendment is supported. Our reply would be 'yes' since this would reduce the likelihood of the service being closed should the MoE not approve the new provider after the service has changed hands.
- Partly this makes sense, but how this works in practice with the sale and purchase of a centres is another matter.
- This will make it easier for already licensed providers to take on new licences.
- All new/changes of service provider should be on a probationary (not a full) license for the first 3 months at least.
- The change of service provider is a separate license holder and meeting the criteria for a new license before the current license expires helps the transition of the new license holder and the families to be much smoother. It also means there are no interruptions for children who are already at this service and staff who may continue employment with the new provider.
Proposal 5: To remove the 21-day notice period of licence suspension to a service when it is no longer under the control of its licensed service provider. Suspension may be immediate
The MoE asks you: "Do you agree that we should remove the 21-day minimum notice period for suspensions for change in control of a service provider without a licence amendment?"
Our reply: Yes. But it should take effect from the day after the notice of licence suspension and not on the day of licence suspension. An exception needs to be added to allow for the notice period to be extended only on the unexpected death of the service provider and providing that there is a service manager who agrees to stay on, ensuring that staff are paid and children can transition to a new service. Other requests for exceptions must be refused (e.g., if a management consultant or other person has stepped in as an unofficial licensee while the licensee / manager is under investigation or has been barred from being in their service).
An additional comment
- It is more important to regulate on what criteria should be met to change service provider rather than passively respond to the many situations of a changed provider.
Proposal 6: To remove the minimum 21-day notice period to a service before suspending its licence if it has not returned an invalid licence
The MoE asks you: "Do you agree that we should remove the 21-day minimum notice period for suspensions for not returning a full or probationary licence when it is invalid?"
Our reply: Yes. But it should take effect from the day after a reminder has been issued to the service to return its invalid licence.
The amendment as proposed does not provide an adequate solution to the Ministry of Education’s concern that the service displays its provisional licence for parents to know that their service has been placed on a provisional licence and what the problems are. The replacement of one licence with another licence on a wall at the service may not be noticed by parents and visitors. It can be a surprise to families when a service loses its licence because they had no knowledge of licence reclassification and the dates by which conditions on the provisional licence must be met.
We recommend that the licensing criteria also be amended to support the proposed regulation change
|GMA1 must be amended to include a method by which the service provider must communicate the change of licence to the family of each enrolled child. This would ensure that no family is surprised should the service’s licence be suspended or cancelled due to compliance failure.|
Proposal 7: To use "any other information" when deciding whether to give a new licence to a provider. Currently the MoE can only base its decision on the fitness of a service provider based on the information that is provided by the applicant
The MoE asks you: "Do you agree with how the proposed regulations have been drafted?" (The Ministry wishes to "use any other information" it considers relevant. Does it worry you that the exact kind of other information the MoE may use is not spelled out or detailed in the proposed regulatory change? How well will the MoE check out the veracity of information it may be given by members of the public, business competitors, its own staff, etc?)
Our reply: Disagree
Regulation 11 needs to have an additional clause which states the provider may request a copy of the information that the Ministry has drawn from the public and its own files in deciding whether to grant a new licence. This additional clause may help to ensure that the Ministry properly checks the veracity of other information before using it as part of assessing a provider’s application for a probationary licence.
- It needs to be clear what information they can gather and why, and then the actual information needs to be declared otherwise this will offend the Privacy Act very quickly.
- The service provider must also have a say in whether that added information is relevant or not when it comes to appeal.
- There needs to be more specific information around the source of information so application of this is consistent and transparent. Not all sources may be accurate and unbiased.
- It should be clear as to what information can and may be used. This needs to be black and white and it needs to be regularly used as a measure of compliance.
Proposal 8: To amend the licensing criteria for minimum room temperature from 16 to 18 degrees Celsius
The MoE asks you: "Do you agree that the minimum indoor temperature in the licensing criteria should increase to 18 degrees Celsius?"
Our reply: Strongly agree.
It would be remiss of the Ministry to not also include a statement of maximum room temperature. Control for excessively high temperatures is as important as control for cold temperatures.
Question: How will the Ministry ensure that indoor temperatures are kept at a safe and comfortable level for children? Article link: Cold early childhood centre
Proposal 9: To require the fee for a new licence to be paid on application and not refundable should the application be refused
The MoE asks you: "Do you agree that having the fee payable upon application better meets the purpose of the application fee?" (Note that the non-refundable fee is currently $2,756.25 gst incl.).
Our reply: Yes. But it does not support equity for community groups applying for their first licence, who do not have experience in this and whose finance comes from fund-raising.
An exception should be added in the proposed amendment to allow community groups that have passed Step 1 of the proposed management network approach under the Government's Learning Action Plan to not be charged a second application fee should their first application fail.
- Fee up front is my expectation. The same as applying for a building consent. What I have issue with is nowhere can I find a process to challenge if your first license fails and you disagree.
- Yes, the full payment should be made at the time of the application; but if the application is declined at least half of the licensing fee should be refundable. I do not agree with this non-refundable fee.
- I think someone from MOE should support community group applicants through the process to ensure they have everything done that needs to be done before they have to pay the fee.
Proposal 10. To consolidate the Person Responsible (PR) requirement by inserting into the regulations that the PR must hold a practising certificate to clarify any misunderstandings of the PR requirement
The MoE asks you: "Do you agree that the proposed changes to Schedule 1 are clear and easy to follow?"
Our reply: Strongly disagree.
The problems with Proposal 10 are many but the main ones are:
- It will introduce a new inconsistency between the PR requirement and another requirement in the 'Qualifications Schedule' that states: "50% of required staff must hold recognised qualification" with no mention that these staff must hold a practising certificate.
- It is not clear what "50% of required staff must hold recognised qualification" (in teacher-led services) means. So Schedule 1 is not any easier to follow than it was before. The preferable interpretation for child safety and education is that "required staff" means staff directly required to meet ratio requirements to provide care and education for the number and ages of children present. Unfortunately it may be interpreted to mean the number of staff required to be employed for the maximum child licence number, therefore including qualified staff who are casually employed as part of the required percentage for the day/week and enabling services to rooster more than 50% unqualified staff on at any time to meet ratios required for child supervision.
- In services affiliated to (under the control of?) Playcentre Aotearoa and Te Kōhanga Reo National Trust Board the Person Responsible is required to hold a recognised qualification only. Proposal 10 should support the PR in these services to gain professional certification and meet the same standards.
- A ‘recognised qualification’ is not defined in Schedule 1. To find out what a 'recognised qualification' a person needs to go to 3. Interpretation in the Regulations, so this does not make the Schedule any easier to follow.
- A termination date must be included in Schedule 1 for the temporary change made in 2019 to allow the PR in a teacher-led service to have “a primary teaching qualification”. The Minister of Education noted that the change was a temporary expedient.
The Ministry of Education must turn its attention to serving children and the public by amending the regulation and qualifications schedule to remove confusion. Proposal 10 as it stands, suggests that there is currently denial that there are real issues here that need to be addressed for clarity.
The Ministry of Education needs to ensure that required staff refers to staff who are engaged in the education and care of children and either show that the PR must be ECE qualified (or include a termination date for the temporary regulation change allowing the PR to be a person who is qualified to work with primary school-aged children.
See also an article on confusing regulations on staffing and the PR requirement
Proposal 11. To amend the licensing criteria for philosophy statements, self-review, and annual planning, requiring services to demonstrate regard for the Statement of National Education and Learning Priorities (NELP)
The MoE asks you: "Do you agree that the proposed changes to the licensing criteria provide services with enough information on how to demonstrate having regard to the National Education and Learning Priorities?"
Our reply: Strongly disagree. Not enough information is provided and no models and support for service providers on how to translate the NELP into ECE documentation and practice has been freely provided to service providers by the Ministry of Education. Note that the regulations already state "The governance, management, and administration standard: general is the standard that requires every licensed service provider to whom this regulation applies to ensure that— the service has regard to any statement of National Education and Learning Priorities". Therefore, it appears to be sufficient for the service provider or delegate (e.g. ECE trained pedagogical leader/PR) to explain how their service has regard for the NELP.
It should not be made compulsory to have the NELP in a service's philosophy statement. A philosophy statement is something that is unique to the service and its people and community.
Any benefits of explicitly incorporating the NELP into self-review and annual planning documentation need to be carefully weighed up and considered because of the additional administrative and time burdens that this will place on people in services.
At present this amendment appears only designed to create more paper-work and meetings for service providers, teachers and educators, parents, and communities. We saw this when the requirement for services to develop charters was introduced. The term for this created by Dr Sarah Alexander in relation to chartering and the Ministry's Early Childhood Management purple folder of requirements was the "purple people eater'. Care needs to be taken not to introduce another ‘people eater'.
Some additional member comments
- I agree in theory but documentation must be sensible/practicable. It can be rather overwhelming at times.
- I think there is no need to make this change, when legally it is already implied in our legislation.
- MOE probably need to fund the development of this.
- This seems a way to make accountability on the paper rather than in our actual work.
- I'm concerned that every time we have a new government new documentation is created, and just when we're getting familiar with what has been introduced, we have a new government. When a new government comes to power and they want to introduce something different, get rid of NELP will we have to change and amend our philosophies, self-review and annual planning again?
- I don't want to include this in my Philosophy, it's unnecessary.