Guidance

Protocol between Ofsted and fire rescue authorities

Updated 22 December 2023

Introduction

This protocol is between fire and rescue authorities and Ofsted with regard to childcare provision.

Purpose

This protocol sets out the working relationships between Ofsted and fire and rescue authorities by:

• establishing the legal basis for our regulatory and inspection responsibilities
• explaining how we carry out those responsibilities
• explaining the responsibilities of the partner organisations
• explaining how agreed working arrangements can help both organisations to meet these responsibilities

The role of Ofsted

The Office for Standards in Education, Children’s Services and Skills (Ofsted) regulates and inspects to achieve excellence in the care of children and young people, and in education and skills for learners of all ages. It regulates and inspects childcare and children’s social care, and inspects the Children and Family Court Advisory Support Service (Cafcass), schools, colleges, initial teacher training, further education and skills, adult and community learning, and education and training in prisons and other secure establishments. It assesses council children’s services, and inspects services for children looked after, safeguarding and child protection.

The full list of services we regulate and inspect can be found in the Annex.

In particular with regard to childcare and childminders, we are responsible for regulating and inspecting:

• Ofsted-registered childminders and other childcare providers included on the Early Years Register and the compulsory part of the Childcare Register who care for children aged under 8 years
• Ofsted-registered childminders, home child carers and childcare providers included on the voluntary part of the Childcare Register
• Ofsted-registered childminder agencies included on either the Early Years Register, the Childcare Register or both, according to whether they are a early years childminder agency or a later-years childminder agency or both

The legal framework under which Ofsted regulates

The legislation, together with any subsequent regulations and standards under which we regulate childcare providers, includes the following:

• Childcare Act 2006
• the ‘Statutory framework for the early years foundation stage’
• the Childcare (Early Years Register) Regulations 2008
• the Childcare (General Childcare Register) Regulations 2008

Requirements for childminders and childcare providers

We regulate Ofsted-registered childminders, childcare providers and childminder agencies against the requirements of 2 separate registers:

• the Early Years Register (for those providing care for children aged from birth to the 31 August following their fifth birthday
• the Childcare Register, which is divided into 2 parts:
  • the compulsory part, for those providing care for children from 1 September following the child’s fifth birthday to under 8
  • the voluntary part, for those providing care for children up to the age of 18 for which registration is not required but who choose to do so

Providers on the Early Years Register must meet both the safeguarding and welfare and the learning and development requirements (unless they are exempt from doing so) set out in the ‘Statutory framework for the early years foundation stage’ and the requirements for registration set out in The Childcare (Early Years Register) Regulations. Providers on the Childcare Register must meet the requirements set out in The Childcare (General Childcare Register) Regulations. These requirements are set by the government.

Powers and duties

We regulate childcare providers against all relevant legislation and requirements.

We are responsible for ensuring that childminders and childcare providers are suitable to work or be in regular contact with children and young people and that those providers continue to comply with legal requirements set by the government. We are also responsible for ensuring that registered childminder agencies are suitable to operate an agency. In addition, we are responsible for ensuring that all people aged 16 years or over who live or work on premises where Ofsted-registered childminding takes place are suitable. If a childminder is registered with a childminder agency, these responsibilities sit with the agency.

We have a range of powers to carry out these regulatory responsibilities. We can:

• grant, refuse or cancel registration
• impose, vary or remove conditions of registration
• grant or refuse applications for variations to conditions of registration
• prosecute providers for specific offences under relevant legislation suspend registration

We do not investigate individual child protection cases or referrals. Criminal investigations relating to child abuse are the responsibility of the police. Local authorities are responsible for assessing children in need and enquiries relating to children who are suffering, or likely to suffer, significant harm. However, if we believe that children are at risk of harm in a registered setting, we will use our regulatory powers to take action as required.

Inspection and reports

Ofsted has a duty to inspect childcare providers that are registered on the Early Years Register at least once in the prescribed inspection cycle, where this is applicable.

Following inspections of providers on the Early Years Register, we will report on 4 aspects:

• effectiveness of leadership and management
• quality of teaching, learning and assessment
• personal development, behaviour and welfare
• outcomes for children

We also have the power to inspect providers that are on the Childcare Register. We will inspect a 10% sample of providers that are only registered on the Childcare Register, which will include any providers that there has been a complaint about relating to the requirements for registration.

Following inspections of providers on the Childcare Register, we will produce a letter setting out whether the provider meets the requirements of that register.

Providers may be on one or both registers. When providers are on the Early Years Register and the Childcare Register, we will only report on non-compliance with the requirements of the Childcare Register in the inspection report on the early years foundation stage.

Organisation of Ofsted’s registration and inspection functions

The Applications, Regulatory and Contact Team (ARC) is our central point of contact for the public. It is responsible for:

• providing contact between service users and members of the public, colleagues and Ofsted
• giving information to providers and guidance on using our website, including technical help for online application and self-evaluation forms
• processing inbound mail for the majority of Ofsted and managing high-volume scanning
• generating all relevant suitability checks on all people for whom Ofsted has such responsibility, such as social services, references and Disclosure and Barring Service (DBS)
• the registration and regulatory risk assessment of childcare and social care providers to ensure the safety and well-being of children and young people in settings that we regulate and inspect
• receiving complaints from members of the public and determining whether these complaints qualify within our powers

The ARC team can be contacted on 0300 123 1231.

For the purposes of inspection, the country is split into 8 regions (see attached annex), each with its own regional director. Each region has responsibility for the early years regulatory work, such as compliance and enforcement activity.

Responsibilities within each region include:

• planning inspection scheduling
• timely delivery of all inspection activities, both scheduled and reactive
• managing and responding to complaints about Ofsted
• allocating and managing quality assurance activities
• running the regional schools duty desk, offering guidance and support to inspectors
• liaising with contracted inspectors

Our registration and inspection activity is covered by our chief operating officer’s directorate. This directorate is responsible for organising and delivering high-quality inspection and improvement work and regulation according to agreed frameworks.

The role of local authorities

Local authorities are responsible for, among other things, assisting children in need and working with other agencies to protect children from abuse.

We have working relationships with local authorities and other agencies to share information to protect children. Wet set out working relationships with local authorities and other agencies through protocols.

The role of fire and rescue authorities

All fire and rescue authorities have a statutory duty to ensure compliance with fire safety legislation. This legislation affects childcare providers regulated by Ofsted.

Fire and rescue authorities carry out their duties in line with the regulators code concordat.

Legal context

The Fire and Rescue Services Act 2004, Section 6(1) (2) states:

(1) A fire and rescue authority must make provision for the purpose of promoting fire safety in its area.

(2) In making provision under subsection (1) a fire and rescue authority must in particular, to the extent that it considers it reasonable to do so, make arrangements for–

a) the provision of information, publicity and encouragement in respect of the steps to be taken to prevent fires and death or injury by fire;

b) the giving of advice, on request, about–

(i) how to prevent fires and restrict their spread in buildings and other property; (ii) the means of escape from buildings and other property in case of fire.

Fire and rescue authorities are responsible for enforcing the Regulatory Reform (Fire Safety) Order 2005.

The Regulatory Reform (Fire Safety) Order 2005, Section 26(1) (2) states:

(1) Every enforcing authority must enforce the provisions of this Order and any regulations made under it in relation to premises for which it is the enforcing authority.

(2) In performing the duty imposed by paragraph (1), the enforcing authority must have regard to such guidance as the Secretary of State may give it.

General fire safety precautions are enforced in childcare premises (not someone’s home) by fire and rescue authorities, not Ofsted.

Fire and rescue authorities have powers to prohibit and restrict the use of premises under the Regulatory Reform (Fire Safety) Order 2005, if the use of the premises may result in serious risk to persons in the event of fire.

Risk assessments and guidance

Providers must carry out risk assessments to identify the general fire precautions they must take to prevent fires and protect those on the premises. This includes ensuring that staff are trained to assist in the prevention of fire and restricting the spread of fire if it occurs.

Childcare facilities are found in a wide variety of buildings not used for the sole purpose of childcare, for example, a crèche in an office building or playgroup in a church hall. These types of premises are subject to fire safety requirements under the Regulatory Reform (Fire Safety) Order 2005.

If childcare services operate within a building, such as a church hall/community centre, but do not have sole use of the premises, childcare providers must ensure that they cooperate with others to meet the requirements of the Regulatory Reform (Fire Safety) Order 2005 for the areas of the building that they use.

You can find more guidance for providers.

Working arrangements

Working together

Ofsted and fire and rescue authorities agree to work together to ensure that premises are safe from fire and that, should fire occur, the safety of the occupants can be assured. Both authorities agree that cooperation between the 2 organisations is the best way of promoting this objective.

What Ofsted will do

We will:

• register childcare provision before an inspection by fire and rescue authorities takes place, unless serious fire safety concerns are identified
• ensure during inspections or at registration visits that childcare providers are complying with the requirements of registration that relate to fire safety, and that appropriate steps are taken to eliminate any risk of harm to children
• notify the fire and rescue authorities if, during inspection, investigation or at a registration visit, an inspector identifies significant concerns about the level of fire safety within the premises. For example, if there is no adequate fire warning system or fire escape. In these cases, we will provide the fire and rescue authorities with the following information:
  • contact details of the relevant inspector
  • name, address and contact information of the provider (responsible person(s) for fire safety)
  • type of childcare offered
  • number of childcare places offered
  • whether overnight care is provided
  • the concerns about fire safety
• refer applicants for registration and existing providers to the ‘Early years and childcare registration handbook’, which explains that they must comply with the requirements of their local fire authority We may take enforcement action against childcare providers if they breach the requirements of registration.

We will not tell fire and rescue authorities, as a matter of course, about prescribed inspections at childcare settings.

What fire and rescue authorities will do

Fire and rescue authorities will:

• check for compliance with the Regulatory Reform (Fire Safety) Order 2005 and audit fire risk assessments, but not undertake them, when visiting childcare premises consult Ofsted in writing prior to taking any formal enforcement action (where practical) against a registered childcare provider, because of fire safety concerns at the premises
• carry out an inspection when Ofsted identifies significant concerns about the level of fire safety at childcare premises, as soon as resources permit
• prioritise their workload of existing premises using a risk-based regime linked to their available resources. Therefore, fire and rescue authorities may audit higher-risk childcare premises as part of their enforcement programme
• investigate any formal complaints about the fire safety provision in any premises provide advice and, if necessary, support to Ofsted inspectors about the provision or management of fire safety at premises
• carry out a follow-up visit to ensure that providers comply with the requirements of any fire safety enforcement or prohibition notice. In these cases, the fire and rescue authority will liaise with Ofsted
• inform Ofsted of the result of any significant investigation within an appropriate timescale, and in any case within 6 weeks

Inspections by the fire and rescue authorities of childminding premises will only occur if Ofsted raises specific, serious concerns about the level of fire safety on the premises. In these circumstances, the fire and rescue authority may advise the childminder and make recommendations, normally on a goodwill basis only.

Fire and rescue authorities will not carry out a fire safety inspection on behalf of an applicant for registration for childcare, or provide a free consultative service.

Unregistered childcare

Fire and rescue authorities will tell Ofsted when they have knowledge of unregistered childminding or childcare provision, when that care requires registration. The criteria for registration, subject to certain exemptions, are set out below.

Childminding is care provided:

• for 1 or more children
• at least 1 child attends for a period or total periods exceeding 2 hours for reward, and
• on domestic premises, where 3 or fewer people work together to provide the care

Childcare is care provided on non-domestic premises or domestic premises where the total number of people providing the care exceeds 3. A childcare provider, unless exempt from registration, provides care:

• for one or more children
• for individual children for a period, or total periods, exceeding 2 hours

Electronic communication

Where possible, Ofsted and fire and rescue authorities will share information with each other electronically. This will provide a quicker and more effective way for them both to respond to requests for information. Ofsted must comply with its internal electronic information management policy in its management of all electronic communication.

Annex

Ofsted’s offices

East of England Eastbrook Shaftesbury Road Cambridge CB2 8DR

East Midlands Building C Cumberland Place Nottingham NG1 6HJ

London and South East Clive House 70 Petty France London SW1H 9EX

North East, Yorkshire and Humber Foss House Kings Pool 1–2 Peasholme Green York YO1 7PX

North West Piccadilly Gate Store Street Manchester M1 2WD

South West 2 Rivergate, Temple Quay, Bristol, BS1 6EH

West Midlands Ground Floor 10 Holliday St Birmingham West Midlands B1 1TF

Organisations, settings and functions Ofsted inspects/regulates

We inspect or regulate the following services in England: * childminders * childcare on domestic premises * childcare on non-domestic premises * childminder agencies * adoption and fostering agencies * residential schools, family centres and children’s homes * all state maintained schools * some independent schools including boarding schools * pupil referral units * the Children and Family Court Advisory Service (Cafcass) * further education * initial teacher education * publicly funded adult skills and employment based training * learning in prisons, the secure estate and probation

Relevant legislation and documentation

• Childcare Act 2006
• The ‘Statutory framework for the early years foundation stage’
• Fire and Rescue Services Act 2004
• The Regulatory Reform (Fire Safety) Order 2005
• ‘Working together to safeguard children’
• Fire safety guidance applicable to childcare providers and fire safety advice for childminders
• The National Fire Chiefs Council