Clause 8 - Powers of local authority in relation to the provision of childcare
Childcare Bill
10:45 am
Justine Greening (Putney, Conservative)
I beg to move amendment No. 104, in page 5, line 14, at end insert—
‘(1A)Assistance under subsection (1) (a) shall only be forthcoming if the authority has taken into consideration spare capacity by existing providers.’.
Joe Benton (Bootle, Labour)
With this it will be convenient to discuss the following amendments: No. 91, in page 5, line 16, after ‘assistance’, insert—
‘and services or use of premises in kind’.
No. 92, in page 5, line 21, after ‘willing’, insert—
‘, or is likely to be willing,’.
No. 95, in page 5, line 24, at end insert—
‘(3A)A local authority must establish a complaints mechanism for existing providers who have been disadvantaged by local authorities providing childcare themselves.’.
No. 198, in page 5, line 24, at end insert—
‘(3D)If a local authority provides childcare under subsection (3)(b) of this section it shall publish reasons for regarding this as appropriate.’.
No. 246, in page 5, line 31, at end insert—
‘, such guidance to include advice and support to local authorities to promote partnership arrangements with local private and voluntary independent childcare providers.’.
No. 101, in clause 9, page 5, line 43, at end add—
‘(4)The local authority must establish an appeals process appropriate for existing providers who wish to challenge the basis on which that local authority has entered into partnership, or declined to enter into partnership, with them.’.
No. 238, in page 5, line 43, at end add—
‘(4)The Secretary of State shall publish a National Commissioning Framework to establish best practice for partnership arrangements between local authorities’ private and voluntary independent childcare providers.’.
No. 265, in clause 23, page 12, line 4, at end insert—
‘(1A)Assistance under subsection (1)(a) shall only be forthcoming if the authority has taken into consideration spare capacity by existing providers.’.
No. 268, in clause 24, page 12, line 22, at end insert—
‘(4)The local authority must establish an appeals process appropriate for existing providers who wish to challenge the basis on which that local authority has entered into partnership, or declined to enter into partnership with them.’.
Justine Greening (Putney, Conservative)
When we considered clause 6 last week, we were identifying the destination we wanted to reach with regard to provision of child care in any local authority area. Clauses 8 and 9 deal with the route by which local authorities should get there and stay there. Our amendments would enhance that process—it is a process that local authorities go through—to ensure that they take the necessary steps and have checks and balances in place to ensure that the process is robust and helps us to the final destination that we all want to reach.
Amendment No. 104 deals with the fact that a local authority must consider spare capacity within existing providers. It would engender a good process by which a local authority should consider existing unmet need through spare capacity in an existing market. The amendment would provide some safeguards against the crowding out of a growing number of child care providers, which is a subject we debated last week.
Enabling local authorities to analyse existing spare capacity would force and encourage them to understand why the spare capacity exists in the first place. The amendment would help them understand locational challenges, perhaps with a nursery in the wrong place. Critically, it would force them to consider the quality and type of child care that is evolving in the area in which they seek to ensure that child care provision is sufficient. It would force them also to consider the different ranges of child care provision on offer: which ones parents are keen to take up, which ones are growing, and which ones they are less keen for their children to engage with.
The final aspect of the amendment is that child care provision is an evolving market. Owing to demographic changes, far more women go out to work and family circumstances are changing, with more single-parent families. The market is evolving, and it is important that local authorities take that on board when they consider the sufficiency of provision, how it is represented today and how it is changing.
Considering existing spare capacity would force local authorities to understand which nurseries have plans to grow and which ones are unsuccessful. It would force them to confront the dynamics of the market and whether it meets certain needs. Amendment No. 104 would strengthen clause 6.
Similarly, amendment No. 92 touches on the fact that the market is evolving. Having done an assessment of spare capacity and unmet need for child care provision, there may be a gap, but it may be that it will be filled. The local authority should not only consider how the provision stands, but take on board any plans in place to meet unmet need in child care provision locally. That is important, because it could be a waste of taxpayers’ money for a local authority to provide child care when perfectly adequate and perhaps better quality plans in a better location are already in place to meet that need through other providers.
Roberta Blackman-Woods (City of Durham, Labour)
Will the hon. Lady explain why subsections (1) and (4) of clause 11 would not deal with that? They require local authorities to assess the sufficiency of child care provision in the area. That means that they should have to assess also whether there is unmet need and, if so, how it is to be met. I am not clear why the amendment is necessary.
Justine Greening (Putney, Conservative)
The amendments seek to ensure that the local authority’s review of unmet need and its assessment of sufficiency are done robustly. In the child care provision under discussion, the market and the need are changing rapidly. Instead of a poor process, any local authority should have and should have to have a process in place that accepts the dynamic in the market. There is a risk that some local authorities may simply consider provision as it stands, without taking on board provision that will be needed in the future.
Amendment No. 91 gives local authorities more flexibility. The Bill refers to them providing assistance to other local child care providers. We want to broaden that reference to include the provision of services and use of premises. Different councils and local authorities are under different amounts of financial duress. We should reflect that in the Bill by giving them the flexibility to use their resource base to provide assistance to child care providers as they see fit. For example, instead of a child care provider renting premises and then having to get assistance with the rent from the local authority, it may be easier for a local authority to give it the use of a building that is not being used. That could be a win-win situation for the local authority, which might also help regeneration.
Annette Brooke (Shadow Minister, Education & Skills; Mid Dorset and North Poole, Liberal Democrat)
I agree entirely with the hon. Lady. As I have said several times, I come from an authority where the supply of child care is very low and has been increased only by good partnership. That has often meant the provision of land. Therefore, I support the hon. Lady, but, as this practice has been taking place in my authority over the past eight years, I wonder whether it is necessary to put it in the Bill.
Justine Greening (Putney, Conservative)
I take on board the hon. Lady’s point, but we are seeking to provide clarity in the Bill. If the clause merely said “assistance”, I might agree with her, but as it refers specifically to “financial assistance”, that additional detail must be correct. Therefore, we want to ensure that the detail is broad enough to capture the other forms of assistance that a local authority may want to provide.
It is always incumbent on local authorities to use their resources to the best value for the taxpayer. If councils can provide non-financial assistance, they may be able to free up financial resources, which they can churn back into providing perhaps even more child care locally than purely through financial assistance. It seems a common-sense amendment, and I hope that it will be accepted.
Amendment No. 95 brings me back to my opening remarks about our amendments strengthening a process, and it is a process that local authorities will go through to assess the sufficiency of local child care provision. We want to make sure that the process contains a complaints mechanism and that those who are concerned about the outcome of the process, particularly providers who are already providing child care locally and who feel that they have been disadvantaged, can flag up their complaints. We believe that the amendment will place a valuable check on the process, which will help the final decision. Complaints mechanisms are used to great effect by companies in industry. Many chief executives will say that most of the improvements in their processes and products have come about as a result of complaints from customers and suppliers or other companies with which they have been working. We must not deprive local authorities of that valuable feedback when they are assessing the sufficiency of local child care provision.
The amendment would insert that safeguard into the Bill and would enable existing providers to challenge a process that they are unhappy about. That would be valuable for two reasons. First, the process may not have been adequate in an individual case and the local authority may not have ensured that its decision does not have a detrimental effect on existing child care providers. Secondly, a challenge may flag up a general problem with the underlying process and approach that a local authority is using to take decisions about providing child care locally. Whether a complaint brings up an individual, isolated problem, or whether it flags up something that is more fundamentally wrong in a local authority process, the amendment will ensure that those problems are uncovered rapidly and on an ongoing basis, because, as we have said, the reality is that local authorities will probably frequently have to reassess whether the sufficiency test is being passed.
Similarly, in relation to amendment No. 198, it is surely in the interests of everybody—whether they are a parent or a child care provider—to understand the basis on which decisions have been taken by the local authority as it goes through the process. Surely transparency must be good. It will engender best practice across local authorities because they will be able to consider the way in which other local authorities have approached the process. They might be able to consider similar local authorities in similar urban or rural areas and get a far better understanding of the situation, thanks to the fact that local authorities would have to be clear cut and publish the criteria by which they made their decisions.
Amendment No. 246 relates to guidance. We talked about guidance earlier this morning. If we are going to have guidance from the Secretary of State, let us ensure that it is genuinely helpful and useful to the local authorities. I support guidance that would encourage local authorities to promote partnerships. A potential risk has been flagged up by research on Sure Start, which shows that there has been a danger that the most disadvantaged children and families have not ended up getting a Sure Start place. There is some merit in ensuring that all parents, especially those from the most disadvantaged backgrounds, have more choice, not less. Surely it is positive to include in the Bill provision for guidance that encourages local authorities to promote partnerships with the private, voluntary and independent sectors.
In the context of the process that the Bill is trying to put in place—we have tabled amendments to try to strengthen that process—the guidance will also provide a benchmark against which the performance of local authorities, in putting in place the process, can be judged. That must be valuable. Such guidance will minimise the risk that things will go wrong. It will give local authorities, which are going through a new process, a better chance of getting things right the first time. In the context of the people who will be affected most—not just parents, but most of all children—the guidance will minimise the risk that children will end up having to move nurseries and change child care providers, when that could have been avoided in the first place. That is why we need to be careful with the guidance and ensure that it helps local authorities to get through the process in as good a fashion as possible.
Amendments Nos. 101 and 238 take us to the next stage in the process that a local authority will find itself in. Having made an assessment, ensured that the sufficiency test has been met, considered the existing child care provision locally and taken steps to help meet those needs, the local authority must consider the ongoing provision of child care. Clause 9 relates to how we can ensure that that ongoing provision is well managed and has a good outcome locally. It would be sensible to include amendment No. 101, which puts in place an appeals process. If a local authority goes through the initial assessment and comes up with a theory of how to provide child care locally that everybody agrees with, but, having done that, suggests an implementation process that is not agreed by child care providers, there should be an appeals process for the providers to challenge, if not the theory, the practice.
Amendment No. 238 reflects amendment No. 246. Guidance could be helpful for local authorities in setting up initial provision of child care locally. Once guidance has been given to authorities as to how they manage the relationships that they set up, amendment No. 238 says that there should be a national commissioning framework that will establish best practice for the management of those arrangements. I support these amendments that would include an appeals process and, earlier on in the clause, a complaints mechanism.
These are common-sense amendments that maximise the chance local authorities have to get through a new process in a robust way in order to come up with conclusions that providers are happy with. However, if there is a problem there should be a mechanism by which those decisions can be challenged and amended if appropriate.
The amendments that I have already talked about relate to part 1 and deal with local authorities in England. Amendments Nos. 265 and 268 would align the changes that we wish to make to part 2, which relates to Wales, with those we have suggested for part 1. I look forward to the Minister’s reaction to those amendments and I hope that they can be incorporated in the Bill.
Annette Brooke (Shadow Minister, Education & Skills; Mid Dorset and North Poole, Liberal Democrat)
I find it difficult to disagree with the objectives of the amendments. However, I am a little cautious because, from my experience, I suspect that some of them might be unnecessary. For example, if land is provided, the local authority has to show that as a grant in another part of the accounts. There is also the caveat that the assistance “includes financial assistance”. I do not want anything unnecessary included, but important points were made.
I have particular sympathy with amendments Nos. 95 and 198 because we want openness and transparency. There is clearly friction in some parts of the country between private, voluntary and local authority providers. That friction can only be addressed by openness and transparency. There is a difficult balance to be struck in not creating more and more bureaucracy for the local authority, but the principles of the amendments are right.
Similarly, the spreading of best practice in partnership working can only be right. We must reflect on the fact that we have had a report from private providers and their association suggesting that there is friction. We need to consider the underlying reasons for that and ensure that we are addressing the problems in the Bill while not creating bureaucracy for authorities that are working perfectly well.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I support my hon. Friend the Member for Putney (Justine Greening) and her pertinent comments.
Amendments Nos. 104 and 265, which are similar, may assist a person who provides or proposes to provide child care, but that assistance would be forthcoming only if the authority has taken into account the considerable spare capacity of existing providers, which my hon. Friend set out so well. We have discussed spare capacity, but it is worth reiterating the point about its cost to the nation. The sectors say that they have something like 126,000 spare places, if we assume a 76 per cent. occupancy rate. That amounts to something like £1.87 billion of capital. Therefore, it is important that the amendment is adopted to ensure that the spare capacity is not wasted. It is a huge sum. In the view of the private and voluntary independent sector, the places would be sustainable and not simply last for just a short time.
When I asked the Minister for her estimate of the number of child care places required that are not being supplied—the essence of why we are in Committee discussing the Bill—she said:
“At September 2005, the total number of (registered) child care places reported from Ofsted stood at 1.22 million. We do not collect national data on the demand for child care places although we have commissioned a number of sample surveys of parental needs and surveys, most recently in 2001”,
which is four years ago. She continued:
“This survey found that a quarter of all households experienced some form of unmet demand in that year. Estimating the supply and demand at the national level is difficult because the child care market operates at a very local level, leading to significant local variation.”—[Official Report, 2 December 2005; Vol. 440, c. 858W.]
That reply echoes something in the 10-year strategy. Paragraph 5.34, on page 40, states:
“Recent policies have resulted in the creation of a large number of childcare places in a relatively short time. However Government programmes and local authorities have been less successful in securing the sustainability of those places.”
Sustainability is important. As my hon. Friend said, we do not want day care centres and nurseries closing, with children being disrupted and sent to other day care providers.
My hon. Friend talked about amendment No. 91. It would expand the definition of assistance that local authorities may provide to child care providers beyond simply that of money. The Bill only mentions financial assistance. On that point, I disagree with the hon. Member for Mid-Dorset and North Poole. It is important to specify that assistance extends beyond the merely financial. Although it may be the practice for local authorities to provide unused buildings and other services to day care providers, it may not be the case in the future.
When a Bill focuses solely on child care, it is incumbent on us to make it as comprehensive as possible and not to run the risk of a local authority saying, “We have permission to provide financial assistance to you, but we have no permission to provide any other services.” The amendment makes it clear that they will have permission to provide those other services.
I know of an excellent day nursery in Essex with fantastically high standards. It has a waiting list among parents to get their young children into the centre, but it operates out of the changing rooms of a football club. Every day it has to clear up the equipment, put it away in cupboards and bring it out the next day. Despite that, it provides a high level of care. The amendment is sensible.
Annette Brooke (Shadow Minister, Education & Skills; Mid Dorset and North Poole, Liberal Democrat)
I do not disagree with the principle whatsoever. As the hon. Gentleman spoke, I thought of the difficulties that local authorities in my constituency are having interpreting the Licensing Act 2003, so he could be right that provision should be clear and in the Bill.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I am grateful to the hon. Lady. It seems that my rhetoric has persuaded her of the validity of my argument, which is a rare thing in my experience of my speaking ability.
Amendment No. 92 amends clause 8. Clause 8(3) is a crucial provision, but it causes considerable concern among child care providers. It says that a
“local authority may not provide childcare ... unless the local authority are satisfied—
(a)that no other person is willing to provide the childcare”.
That is a good caveat. The amendment would add:
“or is likely to be willing”
to provide child care. It is intended to deal with the situation in which a child care provider may well intend to enter the market but has not submitted an application for planning permission and so on.
The amendment would operate in those rare circumstances when an over-officious local authority goes ahead with providing its own child care, even though it knows full well that somebody is planning to set up a child care facility but has not gone through the procedures of applying for planning permission and all the other licences and permissions that they need. It is about timing and ensuring that people’s plans are not thwarted because of the way in which the clause is drafted.
Amendment No. 95 deals with another part of clause 8(3) that causes concern. Paragraph (b) states that a local authority may provide child care if it thinks that it is appropriate to provide it, even if another person is willing to provide it, and negates entirely the welcome relief provided in paragraph (a). As my hon. Friend said, amendment No. 95 would establish a complaints procedure to which existing providers can turn if a local authority provides child care to the detriment of other provision despite the safeguards in paragraph (a).
The issue is important. In a previous sitting, the Minister gave an example—a decision based on the cost of providing a particular kind of child care for a child with special educational needs—of when it would be appropriate not to take existing child care provision into account. If it seemed that there had been injustice but there was a valid explanation, such as the one that she gave, the complaints procedure would overrule the complaint, but it is important to establish the procedure in the Bill to prevent cases of injustice and business bankruptcies resulting from an over-zealous local authority determined to set up its own provision.
Justine Greening (Putney, Conservative)
My hon. Friend makes a valuable point. In the context of the evolution of child care in a local authority area, new third parties, whether private, voluntary or independent, may well be put off providing child care if they think that they may, in the future, be unfairly overruled when they want to expand their provision.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
My hon. Friend makes a valid point. The measure has the feel of a capricious clause. New providers coming into the market may fear that capricious action by a local authority using the provision could drive them out despite the fact that the child care that they provide is appropriate for the area and is of sufficiently high quality.
Amendment No. 198, which I am pleased to say is supported by the hon. Member for Mid-Dorset and North Poole, seeks to impose on local authorities a duty to explain why they have used the provision in clause 8(3)(b) to provide child care despite other providers being willing to provide it. The hon. Lady and my hon. Friend are both right in saying that transparency is crucial, and the hon. Lady is absolutely right to say that there is occasionally friction between the private and voluntary independent sector and the local authority if additional provision is provided by local authorities close to existing independent provision.
I can think of reasons other than the one that the Minister gave last week of why existing child care may not be regarded as appropriate. It may be of poor quality—it may be graded as unsatisfactory by Ofsted—or it may be located in an inappropriate location, such as between two busy roads with no pedestrian access so that parents have to take their children across streaming, fast, motorway-type traffic. However, we need to know why the local authority makes its decision. That is terribly important in a democracy.
Edward Miliband (Doncaster North, Labour)
I have been following the hon. Gentleman’s remarks. There is a question about the motivation behind what he says, as the burden of his amendments suggests that local authorities are engaged in a war against the private and voluntary sector. I simply do not recognise that from my constituency. I do not understand why he thinks that a local authority would be engaged in a war against the private and voluntary sector.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
It is not a war, but there are many examples throughout England of local authorities establishing child care provision when there is existing provision, which is then driven out. I have an example in my constituency. I cite it cautiously, because the provision that was established was a Sure Start centre, which I support. It is marvellous and is doing fantastic work in Wick, in Littlehampton, but the proposal resulted in closure of the Wickbourne chapel, which was demolished to make way for the new centre. A private and voluntary day care centre was functioning well in the chapel. That day care provider is no longer in the market, and the lady who used to run it is doing something outside child care, which is a great pity. She lobbied me and others hard during the planning stages of the Sure Start centre so that her project could survive. There is another example in my constituency of a primary school that established an early years nursery facility, which again caused a problem for a local provider.
That is why we want the details in the Bill. We do not consider that there is a war. We simply want to ensure that the local authorities and those in their departments who are planning these facilities do their best to take into account surplus capacity and the availability of other providers in the area. There is a tendency in a bureaucracy to press on with one’s work and be oblivious to the consequences that it has on others. I have too many letters containing such examples, as I am sure the hon. Member for Doncaster, North (Edward Miliband) does, from all walks of life.
Amendment No. 246 amends subsection (6), which again is about guidance from the Secretary of State. It is based on a recommendation from the National Day Nurseries Association. Its extensive research revealed that local authorities are not good at entering into such partnerships. Some local authorities do not even talk to existing child care providers. The Minister said last week that the sample size was only 200, but that is a large number of child care providers to ask detailed questions of. It is wrong of us to dismiss the findings, particularly as 63 per cent., which is more than 120 day care providers, said that they had no confidence in the prospects for child care partnerships with local authorities and 71 per cent.—more than 140 of them—said that local authorities were not yet involving them in the delivery of local child care centres.
The association cites the example of a community day nursery in a disadvantaged inner-city area in Yorkshire. Although it was awarded a “Good” rating by Ofsted, the local authority is excluding it from development of, or involvement in, a new local children’s centre. That specific example provided by the NDNA shows the hon. Gentleman where these things are not working properly in practice. That is why we want clarity.
Stephen Hesford (PPS (Rt Hon Baroness Amos, President of the Council), Privy Council Office; Wirral West, Labour)
The hon. Gentleman may recall that when he referred to the survey at our last sitting, I asked whether it was regulated or had been looked into by the Market Research Society and the British Polling Council. He said that he would go away and find out. Has he?
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I have not found out, but a questionnaire sent directly to its members and sent back with the answers, including case studies, is not the same kind of polling as a large sample of 1,000—[Interruption.] Even if it was one day care centre writing to us as Members of Parliament and we cited it, it would not be right for us to dismiss it, let alone 140, 120 or 200 such centres, which have specifically sent us their representations via the NDNA.
Stephen Hesford (PPS (Rt Hon Baroness Amos, President of the Council), Privy Council Office; Wirral West, Labour)
I urge the hon. Gentleman to find out, as this is quite important, and perhaps other members of the Committee agree with me. When he does find out, will he come back and tell us?
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I will do so if the hon. Gentleman wishes, but I do not think that the survey will have abided by those recommendations. I proposed that earlier, because it would be a good innovation for local authorities, the state sector and all those engaged in debates on public policy to abide by the new and innovative rules when they participate in opinion surveys and polling. I suspect that existing opinion research outside the polling companies probably does not abide by the recommendations. However, I shall ask the question, and I am sure that the answer will be no.
The Minister for Children and Families said at a conference in June this year:
“In order to achieve our vision of good quality affordable childcare and integrated children’s services, as set out in the 10-year Childcare Strategy, a close partnership between private, voluntary and maintained nurseries, local authorities and parents is essential.”
I am sure that she and her colleague will stand by those words. The amendments would ensure that that partnership happens, is effective and is set out in either the guidance or the Bill.
As my hon. Friend the Member for Putney expanded ably on the amendments, I shall deal briefly with amendments Nos. 101 and 268, which are similar to amendment No. 198, but which, instead of instituting a complaints procedure, establish an appeals process that would apply when a local authority has not entered into a partnership with the existing child care providers when seeking to fulfil the new duties. Again, this is a recommendation of the National Day Nurseries Association. It says that penalties could be applied to a local authority if it failed to conduct itself in the way in which the Minister for Children and Families said it should. Those penalties could affect, for example, the local authority’s comprehensive performance assessment rating.
Amendment No. 238 would establish a national commissioning framework to lay down best practice for partnership arrangements between local authorities and the private and voluntary independent sector. Again, that is the recommendation of the NDNA, which explains that models for such commissioning frameworks exist in other sectors, such as long-term care for the elderly and primary care.
On that note, I will leave my comments on the amendments, save for pointing out, as the hon. Member for Mid-Dorset and North Poole said, that there is friction between the PVI sector and local authorities. We seek to do all that we can to alleviate that friction and make the working relationship better regulated and therefore more effective.
Julie Kirkbride (Bromsgrove, Conservative)
I, too, support the amendments tabled by my hon. Friend the Member for Putney, for very much the reasons that have been stated. There is inevitably tension between private providers and public providers, in this case the local authority, when the state decides to create a new service or to roll out an existing service nationally, as it is doing in the Bill. The private child care industry is very big business, and we want it to be big business, because it provides a good service to working parents who would otherwise find it difficult to meet their household bills and look after their children effectively. Therefore, we want to encourage investment in the sector. We also want to encourage private child care providers to come forward and try innovative ideas when looking after our children and giving them good experiences outside the family home. We want investment in the sector, but it must not be put in jeopardy by the local authority’s ability to demolish the business plans of various private providers. That is to put the problem at its strongest.
Roberta Blackman-Woods (City of Durham, Labour)
Why should there inevitably be tension between the local authority and private providers, when, throughout the country, there is much experience of local authorities running effective partnerships with the private and voluntary sectors? I bring to her attention the research to which Conservative Members have been referring, which also says:
“In many respects the recently published Childcare Bill bodes well for encouraging partnerships between local authorities and private providers. Clause 8 of the Bill stipulates that councils may not develop their own childcare facilities alone unless there are no other ‘appropriate’ organisations to do so.”
Why assume, as my hon. Friend the Member for Doncaster, North said, that there will be war between the local authority and private and voluntary providers?
Julie Kirkbride (Bromsgrove, Conservative)
I did not say that tension was inevitable; I just said that the provision creates the prospect of tension between the private provider and the local authority.
Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)
Will the hon. Lady give way?
Julie Kirkbride (Bromsgrove, Conservative)
I shall just finish.
I do not understand what Labour Members fear. If there is no problem, why not clarify it in the Bill and create a mechanism by which there could be an adjudication process if there were a problem?
Julie Kirkbride (Bromsgrove, Conservative)
There are many ways of doing it. As my hon. Friend the Member for Putney said, we could apply the model that already applies to care homes. I shall not speak for the Opposition Front Bench, but I am sure that if there were a willingness among Ministers to produce an effective and light-touch regulatory plan, we should be more than happy to consider it. We are merely tabling amendments to probe Labour Members and Ministers about the matter, so that we and the industry can be reassured that there will be no problem.
Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)
The hon. Lady said—some time ago now—that she was not suggesting that conflict was inevitable. However, as the record will show, the first thing she said when she stood up was that conflict was inevitable.
Julie Kirkbride (Bromsgrove, Conservative)
There was an incident in my neck of the woods, in Birmingham, although it was to do with the care home sector rather than the child care sector. In Birmingham, when it was controlled by the Labour party, an old person who went into a care home provided by Birmingham city council received almost double the amount of money that they received for other things.
Joe Benton (Bootle, Labour)
Order. The hon. Lady is straying slightly from the amendment. I request that she return to it.
Julie Kirkbride (Bromsgrove, Conservative)
I perfectly understand why the Chair would wish to upbraid me on that matter. I was merely trying to give an example in an existing sector of conflict between the private industry and the local authority. Inevitably, if two systems are run side by side, there is ample scope for problems.
We are saying that to protect the private nursery child care sector, it ought to have some reassurance in the Bill that there will be no conflict between local authorities—of which there are a fair few examples of a bit of empire building—and others, for which there will be no need for any mechanism, because they take a more enlightened attitude.
Julie Kirkbride (Bromsgrove, Conservative)
I am sure that the hon. Member for Doncaster, North wants to tell me how wonderful the local authority in his constituency is, but we all remember Donnygate.
Edward Miliband (Doncaster North, Labour)
That comment is rather unworthy of the hon. Lady. The point that I want to make is not about the local authority in my constituency. Her contribution has been most illuminating. She rails against not the lack of child care provision in this country, which is the purpose of the Bill, and which I thought Opposition Members supported, but the—fictional—empire building of local authorities. There is no empire building. The purpose of the Bill is to expand child care provision and she should bear that in mind during her contribution.
Julie Kirkbride (Bromsgrove, Conservative)
I am not sure whether the new Member understands that we look in detail at the provisions of a Bill while in Committee. We are not looking at the wider scope of the Bill, of which we said in the opening remarks—
Joe Benton (Bootle, Labour)
Order. The newness of a Member is not relevant; the proper form of address is the hon. Member.
We ought to return to the amendment. References have been made with which everyone in the Committee can agree. We can pick up isolated points across the whole spectrum of local authorities. The point is, however, that we are dealing with this amendment and I have to call a halt to constant comparisons, not just with regard to child care but to other things. We are straying slightly off the amendment and I ask the hon. Lady to come back to it.
Julie Kirkbride (Bromsgrove, Conservative)
As you rightly say, Mr. Benton, we are considering detailed amendments, and this is a particularly detailed amendment, which is concerned with the provision of child care by either the private or public sectors. We should make it explicit in the Bill—the Government should not be afraid to do this—that there is an appeal process, a procedure or a mechanism. I do not have the words to describe exactly what it might be, but our amendment would do that job amply. Perhaps other amendments the Government might table could do the same. That would reassure the private sector of child care providers that it will not be disadvantaged by local authority decisions that do not seem fair. That is all we are saying.
Justine Greening (Putney, Conservative)
My hon. Friend raises a valid point. The amendment purely provides a safeguard that a decision will be assessed if the local authority got it wrong. Surely the only people who will suffer if a local authority does get it wrong will be children—[Interruption.]
Julie Kirkbride (Bromsgrove, Conservative)
My hon. Friend makes a valid point, which got a typical response from Labour Members. She is absolutely right; the provision of good quality child care is extremely expensive and when private operators invest in that way, we want to encourage them. We do not want to discourage them because it is in all of our interests—particularly our children’s interests—if the quality of the provision is good. Therefore, we want to encourage the private sector.
We recognise that there will be private sector failures in the market, in which case there will need to be local authority provision. When the private sector fails—primarily, one presumes, on the basis of insufficient demand for their product at the price offered—we need to ensure that the local authority can get involved. That is a perfectly reconcilable position and there is no reason why Labour Members should have such an allergic reaction to it. It is clearly desired by existing private sector providers, as my hon. Friend the Member for Bognor Regis and Littlehampton said. I am interested to hear why the Minister wishes to stand against motherhood and apple pie.
Beverley Hughes (Minister of State (Children, Young People and Families), Department for Education and Skills; Stretford and Urmston, Labour)
Most hon. Members will recall that we had an extensive debate on clause 6 last week, and I hope that, as a result, our intentions are clear. I am not going to repeat all the points I made on Thursday. We want to ensure that the child care market—as I said, it is very different to that of education and other public services—meets the needs of working parents and those in education and training so that they have a choice about how to balance work and family life. The role of local authorities will be to facilitate that child care market so that it meets those needs. They will not be able to fulfil that duty without engaging the private and voluntary sectors. Clause 8 gives them the power to do that. It is our starting point. We must strike the right balance between, on the one hand, giving local authorities the powers and freedoms that they need to act in the best interest of their local area and, on the other hand, requiring them to support a diverse market that allows maximum choice and flexibility for parents.
Let me make a couple of points in response to Opposition Members. First, the process is not new. It has been going on for a number of years, as the hon. Member for Mid-Dorset and North Poole reminded us. Local authorities and private and voluntary independent providers have already been working together, developing their relationships and providing the hundreds of thousands of extra places that we talked about last week. Secondly, the views of some Opposition Members in relation to local authorities have been illuminating. They clearly have a generally negative view of local authorities and think that other sectors need protecting from them. Despite protestations about a new kind of politics—we heard this as long ago as the last general election, in relation to the Conservatives’ attitude to local government—they clearly still do not trust local authorities.
Justine Greening (Putney, Conservative)
I challenge the Minister on that point. I trust my local authority in Wandsworth. It does an excellent job and provides fantastic services for a low tax. It works with many independent private and voluntary organisations. Her point is not true and it is incorrect to make such a sweeping statement.
Beverley Hughes (Minister of State (Children, Young People and Families), Department for Education and Skills; Stretford and Urmston, Labour)
I am only echoing the sweeping statements that we heard from Opposition Members. We did not hear a good example of local authorities working in partnership. Perhaps the hon. Lady is only concerned about Labour-controlled local authorities if she thinks that Wandsworth is doing such a good job. In my experience—I have been travelling the country over the past three or four months, having round-table meetings with not just local authorities but their partners, including private and voluntary independent sector representatives—
Joe Benton (Bootle, Labour)
Order. I apologise for interrupting the Minister, but I must ask hon. Members, particularly when they have taken part in the debate, to please refrain from writing their Christmas cards in Committee.
Beverley Hughes (Minister of State (Children, Young People and Families), Department for Education and Skills; Stretford and Urmston, Labour)
Thank you, Mr. Benton.
During those discussions with everybody around the table, including private and voluntary independent providers, I got a much clearer picture of the co-operation that is taking place. There may be individual areas where it is not as good as it should be, but my general view is that all those sectors, led by local authorities, are working well together. I cannot share the general view that has been expressed that we cannot trust them and that they provide child care directly wherever they can and shunt the private and voluntary independent sector out. That is not the case. There are really strong partnerships and I am sorry that Opposition Members have such a negative view.
All the amendments are intended, in one way or another, to protect the interests of the private and voluntary independent sector. The involvement of that sector is important for me. I want to maintain a diverse and contestable child care market. I want the local authorities to go about establishing partnerships in the robust way that the hon. Member for Putney outlined, but we have introduced specific measures in clause 8—particularly in subsection (3), which we have discussed—to ensure that local authorities continue to work with private and voluntary independent providers to ensure that sufficient child care is available for local people. That is why subsection (3) allows local authorities to provide child care themselves only if no other provider is willing to do so or if, having considered all the circumstances—I outlined some of those last week—it is appropriate for them to do so.
Some of the amendments would have what I hope are unintended consequences. Amendment No. 104 would, in effect, limit the ability of local authorities to assist existing child care providers and could have a perverse effect, as some settings are likely to have vacancies at some time. The National Day Nurseries Association report acknowledges that take-up of places is seasonal. If some parents do not use all of an 8 am to 6 pm day but bring their child for part of a day or for part-time sessions, there will be gaps. When providers develop their business plan, they must take into account the fact that vacancies result from the way in which parents use child care.
Amendment No. 91 seeks to ensure that a local authority could provide services or the use of premises in kind. I assure the hon. Member for Bognor Regis and Littlehampton that we refer specifically to financial assistance in the Bill because, legally, we must make it absolutely clear that local authorities can spend money. It is not necessary to specify every kind of assistance that they can provide, but, as is already the case, assistance with premises and other facilities and matters is included. Local authorities will have power to offer such assistance.
Amendment No. 92 would insert the words
“or is likely to be willing”
in the clause. The hon. Gentleman may have had a chance to review the documents that I circulated last night. I hope that he will note when we get to amendment No. 11 that we will insist on a robust process of assessment of need that will encompass anybody who is thinking of becoming a child care provider. It is not necessary to include his words in the Bill.
Several amendments deal with complaints and complaint routes. If a provider feels unfairly treated as a result of a process in which they must be centrally involved, they can complain through existing routes, some of which I outlined last week, and, if there has been maladministration, to the local government ombudsman. Beyond that, there is the opportunity for judicial review if there is a serious failure or illegal or irrational behaviour by the local authority. Ofsted will inspect local authorities against the new duties, and it can and will receive complaints from parents or providers. Therefore, I am not convinced that another complaint or appeals mechanism as suggested in the amendments would be more effective, but it certainly would be another call on the public purse and an inefficient use of public funds.
I entirely agree with the intention behind amendment No. 198 and can say to the hon. Member for Mid-Dorset and North Poole and other Opposition Members that the guidance will require local authorities to publish their reasons for providing child care themselves for a particular child or group of children. I hope that hon. Members will accept that the amendment is unnecessary.
Amendment No. 246 would insert in subsection (6) a clarification of what should be included in the guidance that we shall issue. I can confirm that it will promote good partnership practice, and we want to include some examples of best practice that local authorities can emulate.
Amendment No. 238 would require the Secretary of State to publish a national commissioning framework that sets out best practice for partnership arrangements between local authorities and private and voluntary sector providers. We must understand that we cannot develop flexible, local, responsive child care with command and control from the centre. I explained last week that the centralised approach was necessary initially to bring us up to something like a reasonable number of child care places, and for the significant increase that there has been. However, to go beyond that and achieve the flexibility that parents need in the system, action must be taken at a local level in response to local circumstances and conditions, existing child care, labour market patterns and the working hours of parents. It can be done only through strong partnerships at a local level. Opposition Members must understand that our job is to support and strengthen those partnerships, because people at that local level will have to deliver the provision for local parents.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
This is not about top-down prescription and command and control from the centre; it is about having a framework for best practice, so that local authorities can learn how best to do things, rather than reinvent the wheel 173 times throughout local education authorities in England. Surely, the Minister can understand why a national commissioning framework would be beneficial to local authorities. That is why it exists for other local authority functions.
Beverley Hughes (Minister of State (Children, Young People and Families), Department for Education and Skills; Stretford and Urmston, Labour)
Opposition Members are confused. A national commissioning framework means a national framework for the commissioning of child care. It is not guidance about best practice on working together. They are two completely different things.
I agree with the hon. Gentleman about best practice, and to support the children’s trust arrangements we have already issued statutory guidance on partnership arrangements, inter-agency work and other co-operation to improve the well-being of children. It includes practical guidance on how the public sector can and should work in partnership with service providers from all sectors, including private and voluntary.
I am not convinced that there is any need for further guidance; and there is certainly no need for a national commissioning framework. It is important that those relationships and the implementation of what emerges from them are conducted at a local level.
Amendments Nos. 265 and 268 relate to Wales. It is important to leave the specifics of those issues to the Welsh Assembly Government. They are a matter for colleagues in Wales, and they are committed also to ensuring a diversity of providers. Significant funding has been provided, and the Welsh Assembly will take forward all provisions for Wales in relation to their own circumstances.
Some of the amendments are unnecessary because we intend to implement the measures that they seek, and I am not convinced of the need for the other amendments, so I hope that the hon. Gentleman will withdraw the lead amendment.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I listened carefully to the Minister, and I should like to make several comments. She said that the PVI sector’s concerns about local authorities establishing child care places when there is capacity in the area were not new. She is right: it is not a new process, and there are many examples throughout England of good practice and good partnership arrangements. However, I was lobbied by the NDNA long before the Bill was published—
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
The NDNA expressed to me as a Member of Parliament its concerns that before the Bill was published, provision was already in place for local authorities to drive out private sector provision by establishing child care places in maintained schools or Sure Start centres, or under the neighbourhood nurseries initiative. It has been a long-term concern, and I suspect that it even pre-dates this Administration.
Julie Kirkbride (Bromsgrove, Conservative)
It would be interesting to know whether my hon. Friend had the following experience in his constituency, because it very much happened in mine. When the Government introduced nursery places in mainstream schools, they drove out many pre-school groups in my constituency, many of which were upset. Therefore, there is, inevitably, a tension.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
My hon. Friend is right. This is not a party political point, but a concern of the PVI sector that the Bill gives us an opportunity to address. Everything does not have to boil down to Labour versus Conservative on these issues. The independent sector is genuinely concerned about what is happening, and this would be a good opportunity to address that concern.
Beverley Hughes (Minister of State (Children, Young People and Families), Department for Education and Skills; Stretford and Urmston, Labour)
It is clear in the Bill that we envisage local authorities as the provider of last resort in this further expansion of child care by the Government. The Local Government Association has welcomed the inclusion of that provision in the Bill, not only because it does not want to have to provide extensive new state facilities, but because it wants to work with the private and voluntary independent sector.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I do not disagree with the Minister, but human fallibility is inevitable. When we are drafting legislation and a new framework, we must take into account poor practice and legislate to try to minimise its likelihood. It is not about Opposition Members not trusting local authorities; it is not a question of trust. The state sector, whether local or national, has huge advantages: being in the state sector gives one huge advantages over the private sector in terms of lack of risk and the resources available. Our amendments would simply ensure that the statutory arrangements are as fair as possible for those who do not have the benefit of working in the state sector, but are living in the private and voluntary sector and trying to survive in difficult circumstances. I also agree with the Minister that we want a diverse and contestable child care sector. I believe that our amendments will help to deliver that.
The Minister mentioned vacancies. In any fluid arrangement there will be vacancies. The amendment does not aim to ensure that every last vacant place with every PVI child care provider space in the area is used up before the local authority can intervene. If it is drafted in such a way that that would be the unintended consequence and the Minister will give me an assurance that she will come back with a better drafted amendment that makes the same point, I shall happily accept that. However, we want to make sure that, when there is an occupancy rate of 76 per cent. and child care providers already exist a few hundreds yards from where a local authority may wish to set up a new provision, that is taken properly into account and that the safeguards, complaints procedures and appeals procedures are in place to assist when things go wrong.
The Minister’s answers on financial assistance are welcome, and we shall not press our amendment on that point. I also take her point about judicial review. I remain unconvinced by her assertion that Ofsted can somehow receive complaints. It is not about Ofsted’s inspections of child care provisions and their quality, but about the local authority. Although Ofsted will also inspect the local authority, such inspections take place every few years and will not be in time to deal with a specific complaint about a specific provision that immediately drives out a private sector or voluntary provider.
Justine Greening (Putney, Conservative)
Surely, if the amendment is accepted, it will not be only providers who can challenge a local authority decision; the parents may also want to challenge it, and it is important that a mechanism exists by which they can do so. The Bill contains nothing that would provide that mechanism, and it would be a sensible provision to include.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
My hon. Friend makes a good point, which reminds me of the Littlehampton example that I cited earlier. I did not receive correspondence simply from the child care provider who had to move out of Wickbourne chapel. I also had a lot of letters from the parents of toddlers attending that child care facility. They were happy with the facility and therefore very concerned. In that particular instance there was no issue related to poor behaviour by the local authority; it was just that the chapel was being demolished. However, there are many examples in which the local authority has not behaved as it should have done and, under the provisions of the amendment, that would be an ideal opportunity to submit an official complaint.
In respect of amendment No. 198, I am delighted to hear the Minister’s assurance that reasons for using the provision under 8(3)(b) must be given and will be issued in the guidance to local authorities.
Annette Brooke (Shadow Minister, Education & Skills; Mid Dorset and North Poole, Liberal Democrat)
Does the hon. Gentleman agree that if we had had sight of some of that guidance we could have saved a lot of time?
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
The hon. Lady is absolutely right. During our break I will be swotting up on the guidance that has been issued in relation to clause 11. However, sight of the guidance relevant to the clause would have been helpful, because if we had seen it in advance of these proceedings, we would not have needed to table amendment No. 198. It would still be nice to have had the guidance now—it may contain other things that reflect the Minister’s assurance that the guidance will specify that local authorities should give reasons when they use clause 8(3)(b) to provide child care, if appropriate, even when there is child care provision already in place. The Minister’s assurance that the guidance related to amendment No. 246 will promote good partnership practice is also welcome.
On that note, I would be happy to withdraw those amendments, but I am still concerned about the issue of the complaints procedure. When we reach amendment No. 95 in the proceedings, I would like to urge my hon. Friends and other members of the Committee to support it.
Joe Benton (Bootle, Labour)
We will put amendment No. 95 when we come to that point but, for good order’s sake, the mover of amendment No. 104 must withdraw the amendment.
Division number 5 - 3 yes, 8 no
Voting yes: Annette Brooke, Nick Gibb, Justine Greening
Voting no: Roberta Blackman-Woods, Ian Cawsey, Ann Coffey, Maria Eagle, Helen Goodman, Stephen Hesford, Beverley Hughes, Edward Miliband
Joe Benton (Bootle, Labour)
With this it will be convenient to discuss the following amendments: No. 199, in clause 9, page 5, line 34, leave out from ‘person’ to ‘for’.
No. 97, in clause 17, page 9, line 18, at end insert
‘such circumstances to be transparent and equitable.’.
No. 267, in clause 24, page 12, line 13, leave out from ‘person’ to ‘for’.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
The amendment would remove subsection (4) from the clause. Subsection (4) says that subsection (3), which concerns local authorities not providing child care for a particular group of children unless they are satisfied that no one else is willing to provide it, does not apply to child care provided by a maintained school. We heard examples earlier of a more familiar situation where primary schools have established early years child care provision that has driven out private and voluntary sector independent provision.
It seems odd that all the safeguards in subsection (3) dealing with situations where no other person is willing to provide such child care do not apply when local authorities are deciding whether one of their primary schools should be able to expand by setting up, for example, a pre-school class for three and four-year-olds. That is also the view of the National Childminding Association, the child care organisation 4Children and the Daycare Trust, the last of which says:
“in making a judgment about the most appropriate provider to meet parents’ and children’s needs, the Local Authority should judge childcare provided by a school in just the same way as it does with every other local provider.”
It goes on to say:
“This subsection undermines the creation of a level playing field between schools and the PVI sectors.”
It is not a matter of Opposition Members being hostile to local authorities; we are merely reflecting the genuine concern of those in the private and voluntary sectors. The Daycare Trust goes on to say:
“it is very important that schools play their full and vital part in local childcare planning arrangements—as well as in the wider Every Child Matters process of which childcare is a key part. However, this subsection seems to set schools outside this local framework, schools need to be more engaged not less in the work of wider children’s services.”
Edward Miliband (Doncaster North, Labour)
I have great respect for some of the organisations that the hon. Gentleman mentioned, but I would like to ask him about his amendment. It seems to me that schools are in a different category from other forms of provision because there is an advantage in terms of stability, custom and practice in kids going to pre-school classes in a primary school and then going on to the school itself. To see local authorities as providers of last resort does not seem to make sense.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
The hon. Gentleman’s intervention slightly concerns me because he gives the impression that he would prefer pre-school arrangements to take place in primary schools, despite the existence of high-quality child care facilities and provision elsewhere. He talks about stability and custom and that it is better for children to have their pre-school child care arrangements in a primary school setting as part of the process of getting ready for reception year and key stage 1. That is not necessarily the case; there is some very good PVI sector provision. I do not think that the hon. Gentleman’s comments reflect Government policy—thank goodness—but it would be a pity if we were to decide to have all pre-school child care arrangements in primary schools and drive out the PVI sector.
Ann Coffey (PPS (Rt Hon Alistair Darling, Secretary of State), Scotland Office; Stockport, Labour)
Does the hon. Gentleman agree that there is a danger of polarising the matter between private and local authority provision? I do not know what experience he has had in his constituency, but in mine there have been very successful partnerships between school governing bodies and private providers, where private providers have come into the school and provided wrap-around child care after children have finished their nursery education. That has been to the advantage of the local authority and the private sector. Governing bodies do not necessarily want to be bothered with the aggravation of employing additional staff. We are in danger of polarising the question and not taking account of successful partnerships throughout the country.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
The hon. Lady makes a good point and she is right. There are successful partnerships that involve private sector bodies coming in, almost like management teams, and running facilities in existing schools, rather than providing child care on their own premises. No one can oppose that. I am sure that we will see a lot more of that as wrap-around provision increases throughout the sector.
When considering the wording of a Bill, one must take into account extreme examples of what might happen and ensure that it does not. When I say “extreme examples”, we should remember that these things are more prevalent than we would wish. We need to ensure that the Bill is drafted in the best way and takes into account every possible contingency.
It is not just the organisations that I mentioned that support the amendment. It is also the Early Childhood Forum, which has said:
“We are concerned over the implication in Clause 8(4) that schools will be exempt from the requirement to ensure that there are no other settings which can provide the needed childcare in their area. Given the extended autonomy for schools which is envisaged in other new legislation”—
which no doubt the hon. Member for Doncaster, North will support—
“this could result in schools acting independently of the local authority’s planning arrangements for a rational and mixed economy of childcare in an area. This, in turn, could adversely affect the viability of private and voluntary sector providers and childminders as well as restricting choice for parents.”
There is concern that the provision seems to take the maintained sector out of the planning arrangements.
The Local Government Association, which the Minister cited earlier, is also concerned. In relation to subsection (4), it says:
“In making a judgment about the most appropriate provider to meet parents’ and children’s needs, the Local Authority should judge childcare provided by a school in just the same way as it does with every other local provider. The LGA is very keen to ensure that schools play their full and vital part in local childcare planning arrangements.”
I do not see how the Minister can resist the amendment, given that it is supported by the LGA, the Early Childhood Forum, the National Childminding Association, 4Children and the Daycare Trust. I look forward to hearing her response to that amendment. [Interruption.] Indeed—that irresistible amendment.
Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)
It is resistible.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I see. That is a pity.
Amendment No. 199 relates to clause 9(1), which is about ensuring that local authorities have proper, enforceable contractual arrangements in place with child care providers so that when financial assistance is given, and it comes to defining which child care providers the clause applies to, reference to children in ordinary schools is omitted. This point is similar to the earlier one, which is why the amendments have been grouped together. Amendment No. 199 would leave out the words in parenthesis—
“other than the governing body of a maintained school”—
from clause 9(1). It seems odd to remove maintained schools, given that the local authority may well provide schools with assistance for pre-school children. Surely the local authority needs to be sure that it will receive value for money. Given the example that was supplied, I wonder whether, if there was a private sector provider managing pre-school child care provision in a primary school, the phrasing in clause 9(1) would prevent the local authority from being able to recover any financial assistance from that private sector provider because it was operating in a maintained school and perhaps under the aegis of the governing body of that school. It would be interesting to have the Minister’s response on that technical point. There is a general, wider point about the provision in maintained schools. There should be measures to enable a local authority to recover any money, or other penalties, from a maintained school if it is not delivering the services that the authority has paid for.
Amendment No. 97 amends clause 17, which is about enabling maintained schools to charge for child care. That seems logical in order to create a level playing field with private and voluntary sector child care providers. The amendment merely inserts the requirement that the circumstances under which charges are made are transparent and equitable.
The National Union of Teachers has raised the issue of a child with special educational needs who may be attending a school before the age of three. In its briefing on the clause, the NUT says:
“Clause 17 will permit charging for education provision in schools if a registered child is below the age prescribed in clause 7 for free early years provision”.
That is age four. The NUT goes on:
“If the age is set at three what are the implications for children under three in maintained schools? It is not unusual for a child with a statement of special educational needs to attend a maintained special school below the age of three. This is an issue which will need teasing out in parliamentary debate.”
Perhaps the Minister will respond to the teasing in due course and put it on the record that there will be no charging in the circumstances described by the NUT.
Annette Brooke (Shadow Minister, Education & Skills; Mid Dorset and North Poole, Liberal Democrat)
I am supposed to add to the list of hon. Members supporting amendments Nos. 9 and 199 myself and my hon. Friend the Member for Brecon and Radnorshire (Mr. Williams). I did submit it independently rather than signing up to it and I saw it as a probing amendment, because it seemed odd that the governing body of a maintained school should be excluded instead of being alongside all the other players. We give governing bodies a great deal of independence now and I thought that they would be embraced by the local authority within the general commissioning role and the general duty to achieve sufficiency.
The hon. Member for Stockport (Ann Coffey) made an interesting intervention, and I can think of an excellent example of a school in my constituency. The private providers in that school have been dependent on financial assistance from the local authority, so I am not sure why subsection (4) is necessary to protect an arrangement of that kind. I would have hoped that it would all be part of the general partnership. Amendment No. 199, to which I have added my name, relates to the same point of principle.
As members of the Committee will be aware, I do not have a hang-up about private being best and public being not so good. I am enthusiastic about partnership working and I see it working well, but I cannot see why the governing body of a maintained school cannot submit plans alongside any other plans in the area, with the local authority making a judgment. I do not see why there should be almost an assumption for a preferment.
I agree with the hon. Member for Doncaster, North, who made the point that many parents will choose, particularly for three and four-year-olds, to have nursery provision on a school site, because it creates a good transition to the school and is convenient when they are dropping other children off at the same school. We are offering parents choice, so I do not see why we should be constrained in any way. I shall be interested to hear the Minister’s comments on the amendments, because I cannot see the point of singling out one set of providers: all the providers could be part of the competition, choice and local authority commissioning as appropriate.
Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)
I hope that I can explain the distinctions that are already in the Bill, with which the amendments seek to deal.
Overall, the amendments would place maintained schools within the restrictions of local authority powers in relation to the provision of funding and charging for child care. As the hon. Member for Bognor Regis and Littlehampton made clear, amendment No. 9 would remove the exemption of governing bodies of maintained schools from the restrictions in subsection (3) on local authority provision. In practice, that would mean that maintained schools could not provide child care unless the local authority determined that no other provider was willing to provide it, or that it would be appropriate for the maintained school to provide child care itself.
Amendment No. 97 would require that the circumstances set out in regulations in which schools are able to charge for early years provision would have to be “transparent and equitable”, but the effect of the amendment is unclear. That is quite something for an amendment that is trying to promote transparency. Obviously, some good drafting was involved, and, as a result, I am not completely convinced that I know what it would mean in practice.
Amendment No. 199 would give local authorities in England the power to claw back funding allocated to maintained schools to provide child care. Amendment No. 267 would give the same power to Welsh local authorities. Overall, the amendments seek to place maintained schools, and the provision that they make, within the restrictions of provider of last resort, which we debated earlier in subsection (3). To achieve good provision, it is important that maintained school providers and private and voluntary independent sector providers work together. It is sensible that that happens. I believe that that has been proven on the ground, and several hon. Members gave examples from their constituency.
We do not want wars between providers, as my hon. Friend the Member for Doncaster, North said earlier. All members of the Committee—certainly the Government—value the work of private and voluntary independent providers. They already assist in the work of many schools in maintained settings, and they have an important role to play in the development of child care that is accessible through schools. There is no doubt about that.
We want to encourage child care that is provided by private or voluntary independent sector providers, perhaps using a school site and making the best use of school facilities that otherwise would be closed. Alternatively, providers might work with schools to put in place supervised transfer arrangements to nearby venues. Many schools already do such work with the sector to deliver child care in that way. We anticipate that many more schools will wish to do so. We all know that the private and voluntary sector has good experience and skills that schools can benefit from when they develop child care.
The hon. Members for Bognor Regis and Littlehampton and for Mid-Dorset and North Poole commented on amendment No. 9. The general concern appears to be that we are creating an uneven playing field that in some way disadvantages one provider against another. I want to give some reassurances in that regard.
There are already checks in the system to try to ensure that there is no bias against private, voluntary and independent sector providers as opposed to maintained settings and provision in schools. For example, when exercising its powers under section 27(1) of the Education Act 2002 to provide community facilities or services for pupils or their families at the school, the governing body of a maintained school is required by section 28(4) to consult the local authority.
If the local authority disagrees with the school’s proposal to develop child care, it can register that during the consultation period, as can anybody else. Therefore, if a local private or voluntary sector provider has such concerns, it too can register objections. If the school were to persist in its plans against the objections and without some kind of resolution, the local authority could decide not to provide funding. It is not forced to provide funding for provision if it does not believe that it will fill a need, or if it believes that there is some duplication. That is one system of checks and balances in the system.
We have also said recently that we would introduce legislation to require schools to have regard to their local children and young people’s plan, which covers all children’s services, including child care. That is another way in which there will be proper planning across the entire field in a local area. Local authorities will have to consult schools on the plan and that is a further check to ensure that there is not needless duplication across existing good quality provision. The conditions already impose greater restrictions on schools when developing child care than those in place for competing private and voluntary sector providers. Private providers are not subject to any such constraints.
I come now to amendment No. 97. Clause 17 amends the Education Act 1996 to enable schools to charge parents for the delivery of any early years provision over and above that already paid for by public funding and which takes place during school hours. The amendment requires any such circumstances to be transparent and equitable, which has left me in some difficulty in working out how we could possibly do that. The hon. Gentleman wants the local authority to behave in a way that is open and accessible for those who have an interest in this. That is commendable and we can all agree with the spirit of that, but we certainly do not want parents or anyone else in a local area to be confused by charging powers or treated unfairly as a result of clause 17.
We know that enabling parents to purchase additional early years provision for their children over and above their free entitlement helps families, many of whom are working families. We also recognise that charging in schools is a very sensitive matter and parents would not want to think that it is being expanded beyond bounds that are clearly and easily understood. We know that it needs to be handled carefully, and we can give an assurance that it will be. Pretty robust guidance will be issued as part of our guidance to schools on sustaining extended services to make it clear when such services can be charged for and when they cannot.
Therefore, even if the amendment were clear in its operation and practical impact and were not technically defective, it would not be right to include it on the face of‘ the Bill. However, we can all agree across the Committee that parents and people in the local area need to be clear about when they can be charged and upon what basis. They also need to be certain that that does not extend into something undesirable. If that is the concern that the amendment sought to address, I can assure the hon. Gentleman that it will be thoroughly and robustly addressed in the guidance. I hope that that is enough to persuade him not to press amendment No. 97.
I turn now to amendments Nos. 199 and 267 to clauses 9 and 24. Those clauses are closely based on the existing provision in section 153 of the Education Act 2002 in relation to nursery education. The amendments seek to give the local authority powers to claw back funding allocated to maintained schools to provide child care in the same way as they have the power to do in respect of other providers. Some concern was expressed that this might be unfair on those other providers and that there was not a level playing field.
The hon. Member for Bognor Regis and Littlehampton made a point about a private provider in a maintained school and whether clawback would still operate under the Bill without the amendment if there were some lack of compliance with requirements. The exemption as it exists in the legislation applies only where a school governing body directly provides major provision. The situation that the hon. Gentleman suggested of a PVI provider not meeting requirements even though the setting was within a maintained school would still enable clawback to take place.
A point was made about implications for children under three with statements of special educational needs. The Bill should not disrupt existing arrangements in respect of children under three where such children are placed in maintained provision. There are small numbers of such children in school placements, and they will continue to receive the provision set out in their statement without there being any implications for that from the changes that we are suggesting.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I listened carefully to the wording of that assurance and the Minister said that the Bill should not disrupt “existing” arrangements. Can she assure the Committee that future arrangements will apply in the same way and that the Bill will not affect future arrangements for future children?
Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)
That is certainly what we envisage. We do not anticipate that those arrangements will be changed in any way by the legislation.
The hon. Gentleman expressed concerns about why there is clawback for one sector and not for another. I hope that I can give him some reasons as to why there is, on the face of it, a different approach. Clauses 9 and 24, with which his amendments Nos. 199 and 267 deal, require local authorities, when entering into contracts with non-maintained settings to develop child care provision for children of any age, to have regard to guidance made by the Secretary of State. The guidance can include a requirement to ensure that contracts provide for repayment of financial assistance from those settings if contractual requirements are not met.
The key to all this is that we are talking about contractual arrangements. The amendments would enable local authorities to require repayment of financial assistance from schools and other maintained providers for the development of child care if the conditions set were not met. However, there is already a significant array of stringent requirements in relation both to quality of service and to the management of delegated budgets, through which money to make the provision is made available to maintained settings. Those measures give local authorities significant power to ensure that they are getting value for money. They are not contractual arrangements, but they are extremely stringent and effective. Local authorities already have in place detailed and well established monitoring and accountability arrangements for budgets in schools and other maintained settings, which ensure that local authorities can get value for money and that, once money is out of the door, it does not disappear off in pursuit of some purpose for which it was not given.
The purpose of a clawback power in respect of contractual arrangements is to try to ensure that there is robust accountability and value-for-money levers. That will enable the local authority to satisfy its auditors and the Audit Commission, which consider whether public money that has been handed out is being used for the purposes for which it is meant. Funding that supports child care provision will be released to schools by the local authority only following the consultation process that schools are required to undertake. Local authorities will release funding only if they are satisfied that the provision is needed and will not duplicate existing high-quality provision.
I have explained why there is a particular arrangement for PVI providers and why the way in which we deal with maintained settings is envisaged to be different. That is not because the arrangement is less stringent. In fact, a local authority chief executive might tell us that it is much more stringent. A school might tell us that it is much more stringent to have to cope with the local authority descending on it to see how it is managing its delegated budgets. The arrangement is different, but no less stringent.
That is why we do not agree with the amendments, which the hon. Gentleman thought were irresistible at the beginning. I do not necessarily expect him to agree that his amendments are resistible, but I hope that he will at least understand the argument that I have used to resist them and that, in view of the explanation that I have given him, he will consider withdrawing amendment No. 9 and not pressing the other amendments.
Nick Gibb (Shadow Minister, Education; Bognor Regis and Littlehampton, Conservative)
I am grateful to the Minister for that comprehensive response. I take her point on amendment No. 97. My drafting skills were not at their best while I was drafting it. I am also reassured by her assurance that there will be robust guidance on the services for which schools can charge. It will be helpful when we see that guidance in due course.
I am also happy with the Minister’s response to the point raised by the National Union of Teachers about existing and future arrangements for children with a statement of special educational needs who are in a special maintained school, and that there is no possibility of charges being imposed on those children by the provision.
I am partially convinced by the Minister’s comments on amendments Nos. 199 and 267—local authorities already have the power to claw back or deal with maintained-sector schools that do not provide the quality of child care that they have agreed to provide—given that they are all within the state sector.
Where I am not convinced is in response to amendment No. 9. The Minister’s responses were weak. That is not her fault; she is able to put the best face on any argument of any Minister. However, the arguments do not stack up, and the Government should accept the amendment.
The Minister basically said that checks were in place. She gave the example that a governing body is required to consult the local authority before the body sets up pre-school child care provision within its primary school. That is not a safeguard. Of course it is required to consult, but then what? She said that if the local provider wants to, it can register an objection. If the school persists in going ahead with the provision, despite the objection, the local authority can refuse funding. The question is: will it?
By removing subsection (4), the amendment would make it a duty of the local authority to take into account the availability of local existing child care provision when deciding whether a school can establish its own child care provision. The existing so-called checks are weak. The Minister’s arguments in resisting the amendment are weak, too.
The Minister also says that schools must have regard to the children and young person’s local plan. Again, it is a weak argument for resisting the amendment— particularly given its irresistibility. She must come up with much stronger arguments than the one that she provided.
The Minister then made the extraordinary comment that private providers are not subject to the various constraints of having to consult local authorities and receive local objections. Of course they are not. People operating child care provision in the private or voluntary sectors have the market place for their accountability. Of course they do not have to go through those various processes. Their accountability is to people who want to pay to send their children to attend child care provision.
In view of the weakness of the Minister’s argument, I feel inclined to push amendment No. 9 to a vote.
Division number 6 - 4 yes, 8 no
Voting yes: Annette Brooke, Nick Gibb, Justine Greening, Julie Kirkbride
Voting no: Roberta Blackman-Woods, Ian Cawsey, Ann Coffey, Maria Eagle, Helen Goodman, Stephen Hesford, Beverley Hughes, Edward Miliband