The new 50 /50 legislation has been shrouded in confusion… so I went straight to the top and talked to Ofsted on behalf of childminders who have been asking questions about how to register for this new service.
The background
The Small Business and Enterprise Act (01.2016) allows registered childminders and domestic childcare providers to operate from suitable non-domestic premises for up to half of the working week without registering separately.
This means that childminders can work 50% of their time in their house and 50% of their time in non-domestic premises such as a church hall or school building which has Local Authority D1 planning permission. The Act offers childminders the opportunity to run, for example, a before and after school club or a holiday club on a single registration at the same time as continuing to be registered as a childminder – they do not have to re-register with Ofsted or complete a separate registration application.
The aim of the Act when it was introduced was to provide more flexibility for working parents by giving them more childcare options so they can extend their working day.
You can find more information about the Small Business and Enterprise Act and how it relates to childminders on the Gov.uk website here.
https://www.gov.uk/government/news/childcare-measures-small-business-enterprise-employment-act.
More information
You can find more information about the 50 / 50 rule in the Early Years and Childcare Registration handbook – page 14 onwards. I have included this information in the question and answer section of this blog.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/616082/EY_and_childcare_reg_handbook.pdf
Minor amendments were made to the Early Years Foundation Stage (EYFS, 2017) to reflect the new 50 / 50 legislation including:
- Requirement 3.10 – relates to DBS checks for staff
- Requirement 3.41 – relates to ratios which do not change: childminders can only care for their normal ratios of children (6 under 8 of whom 3 can be young children) when working off their childminding premises.
- Requirement 3.63 – relates to appropriate insurance which must be purchased when caring for children on non-domestic premises.
- Requirement 3.77 – changes that must be notified to Ofsted.
FAQs – answered
Here are some frequently asked questions … and answers from Ofsted and relevant legislation … about the 50 / 50 rule and how it affects childminders.
Question – how long does it take to register to provide this service?
Ofsted state that there is no set timescale and registration times vary because Ofsted look at each case individually. Ofsted state that they are depending on what information they receive from providers – for example, they might have some information on the provider such as inspection history or they might need to carry out an inspection first, in which case the application will take longer.
Ofsted state: ‘we aim to resolve applications within 4 weeks.’
Note – a childminder colleague recently registered and it took her 3 months – she didn’t hear anything from Ofsted for 2 months and then an inspector rang to come and inspect her childminding provision. When the inspection was completed, the paperwork went through for the 50 / 50 childcare and she received a new registration certificate** for the non-domestic premises within a month of the inspection.
*Note – to comply with the EYFS you will need to display your childminding certificate in your house and your new certificate for non-domestic premises on those premises.
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Question – what registers do you need to be on to offer this service?
To provide a before and after school or school holiday service it is likely that you will be working with early years and older children so you will need to be registered with Ofsted on both the Early Years and Childcare Registers.
You can find out which register/s you are already on by going to your URN on the Ofsted website – search for yourself and when you get to the page where you can read your report, you will see a little drop-down box - ‘view provider details’.
https://reports.ofsted.gov.uk/
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Question – what do you need to do to register?
You will find an application form here –
https://www.gov.uk/government/publications/childcare-providers-eya-approval-to-operate-from-non-domestic-premises
You need to complete the application and wait for Ofsted to contact you – they might need further information from you or they might want to inspect you before considering the application if you are a newly registered childminder.
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Question – how long can be spent in each setting?
The Early Years and Childcare Registration handbook states:
‘Childminders and childcare on domestic premises providers must decide for themselves how they will divide their care between domestic and non-domestic premises. As long as providers do not exceed the 50% rule, they will be acting in line with the requirements of their registration. For example, they may choose to operate from both domestic and non-domestic premises on a daily basis. Alternatively, they may choose to operate between both types of premises on a weekly, monthly or yearly basis’ (point 56).
However you choose to separate your time, you will need to show your Ofsted inspector a register or diary which clearly demonstrates how long you have spent at each of your premises.
Note that if you go over the 50% off childminding premises rule you will need to apply to Ofsted to re-register as ‘childcare on non-domestic premises’.
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Question – do you need anything different for staff?
Childminders can work with up to 2 members of staff at a time. If you want to work with more than 2 members of staff at a time you cannot continue working as a childminder and you need to re-register as ‘childcare on domestic premises’.
If you have staff, you and the staff can move between the 2 settings and keep a register of when you were on which premises.
Staff will need to have paediatric first aid training, safeguarding training and induction training to comply with the EYFS (requirement 3.20) –
‘Providers must ensure that all staff receive induction training to help them understand their roles and responsibilities. Induction training must include information about emergency evacuation procedures, safeguarding, child protection, and health and safety issues. Providers must support staff to undertake appropriate training and professional development opportunities to ensure they offer quality learning and development experiences for children that continually improves.’
Staff must also be provided with regular supervisions as required by the EYFS (requirement 3.21) –
‘Providers must put appropriate arrangements in place for the supervision of staff who have contact with children and families. Effective supervision provides support, coaching and training for the practitioner and promotes the interests of children. Supervision should foster a culture of mutual support, teamwork and continuous improvement, which encourages the confidential discussion of sensitive issues.’
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Question - when do you need to decide how long you are going to spend at each setting?
The Early Years and Childcare Registration handbook states:
‘Ofsted will ask for a written statement on how providers will divide their time and it is this statement against which Ofsted will regulate to ensure that providers do not exceed the 50% of time when providing care on non-domestic premises’ (point 57).
So you will need to have decided before you register how long you will be spending in each setting and provide this information to Ofsted during the registration process.
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Question – can Ofsted offer more clarification for the ‘half a week’ rule?
Ofsted state – ‘Ofsted do not stipulate that it must be half of the week. Ofsted will ask for a written statement on how childminders will divide their time to ensure that they do not exceed the 50% of time when providing care on non-domestic premises. Time could be 50% of each day, week, month or year as long as the applicant can demonstrate that it is up to half of their operating time – Ofsted don’t set the parameters of what their operating time is.’
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Question – what if you go over time at the non-domestic premises setting and do not comply with the 50% rule?
The Early Years and Childcare Registration handbook states:
‘If providers exceed the 50% of time providing care on non-domestic premises under their childminding/on domestic registration they will be committing an offence unless they hold a separate registration’ (point 58).
This is further clarified in the Early Years Compliance handbook –
https://www.gov.uk/government/publications/early-years-provider-non-compliance-action-by-ofsted.
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Question – what happens if Ofsted turn down your application?
The Early Years and Childcare Registration handbook states:
‘Should Ofsted not approve the suitability of non-domestic premises under the 50% time rule, childminders and childcare on domestic premises providers must not offer care on those premises. They may still offer childminding / childcare on domestic premises under their childminding registration’ (point 59).
This means that you can still continue working as a childminder – but you cannot work from the other non-domestic premises.
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Question - what are the ratios when providing care on non-domestic premises?
Ofsted state that ratios are exactly the same as if the childminder was in his/her own home – there is no change to the ratios requirements when a childminder operates from non-domestic premises as they have to meet all of the same EYFS and Childcare Register requirements that relate to childminders.
You can find the Childcare Register requirements here – Annex C.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/616082/EY_and_childcare_reg_handbook.pdf
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Question – what paperwork will you need to provide care on non-domestic premises?
You need exactly the same paperwork as when providing care at home for childminded children. For example, depending on the age/s of the children you might need to record their learning and development and note the progress they are making from their starting points - until they start full time school – then this record keeping can stop.
You will also need child records and emergency forms, permissions from parents required by the EYFS and Childcare Register, contracts to comply with your insurance etc. You can find free childminder paperwork including contracts which you will be able to use for the new setting on the Childcare.co.uk website here.
https://www.childcare.co.uk/free-childminder-paperwork
Ofsted state that if children go to both settings (they are in your house during the day and go with you to an after school club at 3pm for example) you do not need duplicates of their paperwork if you can carry it securely between settings. However, you do need information such as emergency contacts and parent details with you at all times.
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Question - What would happen if a childminder opens up a before and after school club and spends their time between 8 and 9am and 3 to 6pm in the club (less than half a week), leaving 2 assistants to run their childminding provision – assuming each of the assistants can currently run the provision unsupervised for up to 2 hours on their own? What would Ofsted think to this?
Ofsted state – ‘You can’t split the care like the example given as it’s not in the spirit of the legislation. In this example, the childminding provision essentially moves to the after-school club, and we wouldn’t expect assistants to be left in charge in the childminders’ home while the childminder is working in the other after-school club. Assistants can be left alone for up to 2 hours but acting essentially as the sole childminder is not what was intended, so if the childminder wants to leave assistants in sole charge for longer than this then the assistants will need to register as childminders.’
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Question - If the childminder wants to start up a pre-school or offer funded 2 year provision on non-domestic premises the Government currently provides parents with 15 funded hours – when it increases to 30 funded hours in September that will presumably take them to over ‘half a week’ – will the new law be adjusted to accommodate this change or will the childminder have to offer less than the 30 hours?
Ofsted state – ‘If at any point the childminder operates for more than 50% of their operating time they would have committed an offence and would need to register as a non-domestic provider. They would be accepting the funding as a childminder and not a pre-school but would be up to them how they would meet the 50% rule.’
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Question - when delivering 30 funded hours in the future - if the ‘half a week’ is calculated over a 52 week year childminders might be able to juggle the hours so they spend all their holidays childminding and term time part childminding and part delivering 30 funded hours in the pre-school – would that be acceptable?
Ofsted state – ‘See above – we do not specify that 50% = half a week – so yes, it could be split across the year.’
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Question - What will the Local Authority role be in regard to the new rules – will they have to register premises? Will the childminder need to submit a planning application for D1 planning if the premises don’t already have it in place? Are there any planning application implications? Will the LA be required to carry out a local childcare sufficiency audit before allowing the new premises to be registered? Has DfE provided Local Authorities with more information that we can read, for example, have they given an expected / advised timescale for dealing with new applications?
Ofsted state – ‘Sorry – we can’t answer this. Please speak to your Local Authority.’
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Question - How will Ofsted monitor approvals given to childminders by childminder agencies? Will the rules be the same or different for childminders registered with agencies?
Ofsted state – ‘We won’t undertake this work. We do not keep a record of childminders that register with an agency, only information on the numbers of registrations, so we wouldn’t keep details of those operating from non-domestic settings. Once a childminder is registered with an agency then it is up to the agency to make sure they meet the legal requirements.’
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Examples - here are some practice examples provided by Ofsted to help childminders understand how the 50 / 50 rule might work for them…
- Louise spots a good business opportunity, so decides to open an after-school club at her child’s primary school with another childminder, sticking to the right ratio of up to 12 children. After getting the club registered with Ofsted, she decides that she’ll run it from 3.20 - 6 x four days a week. This means that she’s within 50% of her normal working week and the older children (who she and another childminder care for) will go to the club along with her child. This means the ratio is kept to as the childminder she works with continues to mind the younger children in her home as usual.
- Deepa decides to set up a pre-school alongside her childminding business. She’s working for parents who are eligible for 30 hours funded childcare so with their agreement takes the children to pre-school for the morning session from 8-1 each day, then takes them home until parent pickup at 5. The pre-school only runs in term time so during school holidays she looks after them 8-6 in her home. This works out across the year to 50% of her time in each place.
- John starts a holiday club at a local church hall. After registering this as a setting with Ofsted, he works with another childminder to run the club from 9am - 12 each week day for five weeks a year in the school holidays. His childminding business only runs in term time so he’s well within the 50% limit but still giving himself some flexibility to work more hours.
If you have any further questions, you can contact Ofsted by email or ask on the Childcare Registration Facebook page.
Thank you to Ofsted for your help putting this together!
Sarah | Knutsford Childminding