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22 June 2016 | Childcare & Education

Don't take a risk on regulation

Head of Childcare Courteney Donaldson tells us why you should never take a risk on regulation when it comes to operating a childcare setting.

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Given that nursery settings care for our most precious assets, it is essential that all day-care facilities are suitable for their purpose and serve the interests of, and provide the best outcome for each and every child.
 
On a daily basis, and especially when taking over, or starting a new day nursery, Ofsted is at the forefront of a provider’s  mind, but aside of Ofsted there are a mountain of other  regulations that must be met to facilitate business operations.
 
Regulatory compliance processes might be seen as being costly and time consuming, especially when a new owner is keen to start running their new business, however, knowing that you are legally safe to operate will give you peace of mind.
 
As with any business that offers goods and services to the public, there are statutory obligations concerning planning, environmental health, safety, fire regulations, building regulations, public liability insurance and employees' rights which need to be met. Day nurseries are subject to public scrutiny on a daily basis, from parents, employees and visitors, but the degree and detail of scrutiny is heightened in the event of your business being valued or sold.
 
The principal legislation, from an operational perspective, includes The Children Act 1989, as amended by the Care Standards Act 2000, the Childcare Act 2006, the Children and Families Act 2014, and the regulations and national standards including the statutory framework for the EYFS as issued there under) These dictate ‘minimum requirements and standards’ such as space required per child, staff ratios, child protection, staff training, qualifications and skills, safety, suitability of premises and so on.

When buying or selling a nursery, or in the event of a formal valuation being undertaken, a Chartered valuation surveyor or other professional will be instructed by the buyer, investor, or bank to undertake ‘Statutory Investigations’ in order to confirm that the day nursery complies fully with all of the appropriate articles of legislation. In this short article we focus on just three key property compliance aspects that would be subject to scrutiny.

As a nursery operator, you are likely to be responsible for managing asbestos, unless you are a tenant and your lease states otherwise. As the responsible individual you need to determine whether asbestos is present in the building. Following a survey, If asbestos is identified, the surveyor will make recommendations regarding removal or treatment. An asbestos management plan needs to be created and kept detailing the location and nature of asbestos and this plan must be shared with anyone that may come into contact with the area, including employees or builders. The United Kingdom Accreditation Service (UKAS) provides information on accredited surveyors and asbestos testing services.
 
If asbestos is found to be present in your premises and you don’t have an asbestos management and action plan in place you could face a fine of up to £20,000  and imprisonment for up to 12 months. For a serious breach you could face an unlimited fine and/or imprisonment of up to two years.
 
Planning consents often have planning conditions attached which may stipulate that the nursery may cater for no more than a specific number of children at any one time.  The property may have a physical capacity to cater for 60 children, but if a planning condition restricts use to no more than say 21 children at any one time, each day you have more than that number of children on the premises, you could be in breach of planning regulations. This is an incredibly common failing identified during due diligence processes. 

As an employer you must carry out a fire risk assessment of the premises and review it regularly. You are duty-bound to tell staff about any risks you have identified and maintain an appropriate fire safety plan. As the responsible person you must ensure that you have a suitable fire detection and warning system in place.
Compliance with all legislative matters is a fundamental cornerstone of any business, and operators should ensure that they regularly review all legislation to ensure that their business complies fully as regulations change.  If in any doubt, seek external advice from a qualified individual who can undertake an independent legislative compliance audit and most importantly, if recommendations are made, act on them and implement their recommended action points.

Ofsted is widely seen by the sectors as the ‘regulator’ but non-compliance with all legislative matters can have a far more significant bearing on any business, should an issue arise and non-compliance be determined. Don’t take the risk!
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