Nick Gibb (Shadow Minister, Education; Bognor Regis & Littlehampton, Conservative)

I beg to move amendment No. 61, in page 25, line 18, leave out ‘it appears’ and insert ‘the evidence demonstrates’.

David Amess (Southend West, Conservative)

With this it will be convenient to discuss amendment No. 62, in page 25, line 19, leave out ‘may’ and insert ‘must’.

Nick Gibb (Shadow Minister, Education; Bognor Regis & Littlehampton, Conservative)

The amendment seeks to sharpen up the wording of the clause to ensure that when the chief inspector of schools intends to issue an enforcement notice on a child care provider because they are providing child care without having registered, the enforcement is based on evidence, not just whether it appears that someone is providing child care.

Amendment No. 62 therefore changes “may” to “must”. The amendments go together. If the evidence demonstrates that somebody is providing child care and they are not registered, the chief inspector must issue an enforcement notice that the child care provider should desist, or that the child care provider should be registered.

Maria Eagle (Parliamentary Under-Secretary (Children and Families), Department for Education and Skills; Liverpool, Garston, Labour)

The hon. Gentleman is correct when he says that the amendments sharpen up the provisions. They certainly change the action that Ofsted would have to take when it thinks that a child minder is operating without registration. The amendments seek to change the processes that Ofsted would follow.

To clarify matters for Committee members, a person acts as a child minder if they care for a child who is not a relative for reward for periods exceeding two hours a day. When Ofsted receives a complaint that somebody is acting as a child minder without registration, it will usually try first to contact the person to establish whether that is the case. Often, people are simply unaware of the requirement to be registered, and when they are contacted, they will either cease operating or apply for registration. When it appears that there is an issue, Ofsted, where appropriate, likes to offer individuals the chance to register if they wish to do so.

If we were to accept the hon. Gentleman’s “must” rather than “may”, a matter on which we have had a few debates today, Ofsted would have to dive straight in, close down the setting and stop the person doing any child minding. Although in certain circumstances that might be exactly the right thing to do, it would not be possible for us to argue that it always would be.

Of course, Ofsted needs to balance the potential difficulty and danger of allowing a child minder to continue without proper registration against the use of immediate enforcement to prevent the child minder from looking after those children. That is why Ofsted tends to observe settings to decide how best to proceed. One might refer to that as evidence, but “evidence” has a very legalistic interpretation and we might end up in   a situation where we need written statements and all sorts of things that would stand up as evidence in court.

There is no doubt that Ofsted will, in practice, balance the suspicion—it might have been brought to its attention by way of a complaint—that there is a breach of the requirement to register against a determination of whether it is such a serious matter that it has to close down the setting immediately or make the individual apply to register.

It is right to give Ofsted the discretion to do that and it has made the nature of its normal process quite clear. In its August 2004 report, it said:

“When Ofsted becomes aware of a person who may be operating illegally, the first step we take is to write to them to tell them an allegation has been made”—

it does not say by whom. It goes on:

“The letter makes sure they understand the legal requirement that they should register if they are providing childcare which is covered by regulation. It also explains the benefits of training, support and guidance that come with being registered, and how to apply for registration. If necessary, Ofsted continues to investigate the allegation.”

In a small number of cases, where there is ongoing evidence that individuals are providing unregistered care and not taking steps to regularise their position, it issues an enforcement notice. The report continues:

“This notice is a legally binding letter valid for 12 months and ensures that the person carrying out the illegal care knows that it is an offence to do so. If a person continues to care for children while such a letter is in force, they can be prosecuted.”

That is a well-known process giving inspectors sufficient leeway to ensure that they are not diving in and prosecuting people who have inadvertently not got it right, which would also put an end to child care availability as well. They must use their discretion and professionalism to get the balance right. I fear that the amendments might take away that flexibility in such instances and we would not be in favour of that.

Although I understand the hon. Gentleman’s wish to improve the quality and sharpness of the legislation, he might create one or two potential consequences he did not expect when he tabled the amendment. With that explanation of what happens in practice, I hope that the hon. Gentleman will wish to leave the wording as it is and seek leave to withdraw the amendment.

David Amess (Southend West, Conservative)

Order. I should like to advise the Committee of the result of the investigations concerning the confusion over the amendment. I am delighted to advise the Committee that it was not the fault of the hon. Member for Bognor Regis and Littlehampton and nor was it the fault of our excellent Clerk. We have checked every correction sent to the Editorial Supervisor of the Vote and found that no one authorised the change. It was an editorial error.

Nick Gibb (Shadow Minister, Education; Bognor Regis & Littlehampton, Conservative)

I am relieved to hear that I have been exonerated, Mr. Amess.

Regarding the Minister’s response on the amendments, I would like to think that an Ofsted inspector would have evidence for anything they do or any judgment they make, even if it were not of High Court quality. The Minister set out in great detail the very thorough procedures that lead an inspector to   issue an enforcement notice, which was very helpful. On that basis, I beg to ask leave to withdraw the amendment.