Guidance

Protocol between Ofsted and services managed by local authorities: early years childcare providers

Updated 22 December 2023

Purpose

This protocol sets out the working relationships between the Office for Standards in Education, Children’s Services and Skills (Ofsted) and services managed by the chief executives of local authorities about early years and childcare providers. It does this by:

• establishing the legal basis for Ofsted’s regulatory responsibilities

• explaining how Ofsted carries out those responsibilities

• explaining the responsibilities of local authorities

• explaining how agreed working arrangements can help both organisations to meet these responsibilities

• establishing the legal basis for Ofsted’s inspection responsibilities

Ofsted and local authorities share a great deal of information and have different protocols in place to support this work. This protocol is specific to the following:

• building control

• environmental health

• checks with local authority children’s services on people associated with applications for registration with Ofsted

• sharing information with local authorities’ early years leads

• local safeguarding partners

• safeguarding and child protection concerns

We have a separate protocol that sets out working relationships with local authorities on sharing information about childcare providers through the Family Information Directory (FID). This includes a daily download of agreed information about applicants and registered providers to help local authorities fulfil their duties in relation to registered early years provision.

Ofsted’s role

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. As part of this, we regulate and inspect early years, childcare and childminder agencies.

We are responsible for regulating and inspecting the following early years and childcare providers:

• childminders and other childcare providers on the Early Years Register and the compulsory part of the Childcare Register that care for children under 8 years old

• childminders, home childcarers and other childcare providers on the voluntary part of the Childcare Register

• childminder agencies on the Early Years Register, the Childcare Register or both, according to whether they are an early years childminder agency, a later years childminder agency or both

The legal framework under which Ofsted regulates

The legislation under which Ofsted regulates childminders and childcare providers includes the following:

• the Childcare Act 2006 and associated regulations

• the statutory framework for the early years foundation stage (EYFS)

Further details on the statutory guidance and regulations that form the legal basis of our enforcement work are in the early years and childcare enforcement policy.

Requirements for childminders and childcare providers

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

• the Early Years Register, which is for those providing care for children aged from birth to the 31 August following the child’s 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 and up to their eighth birthday

• the voluntary part, for those providing care for children aged 8 years and over for which registration is not required but who choose to register

Providers on the Early Years Register must meet the safeguarding and welfare requirements and the learning and development requirements set out in the statutory framework for the EYFS.

Providers on the Childcare Register must meet the requirements set out in the Childcare (General Childcare Register) Regulations 2008.

Our registration guidance has more information on these requirements, which are set by the government.

Powers and duties

Ofsted-registered childminders, childcare providers and those running childminder agencies must be suitable to care for, or be in regular contact with, children. Those providers and organisations must continue to comply with the registration requirements. We carry out checks on those individuals to confirm that they are suitable to be registered.

In addition, all people aged 16 years or over who live or work on domestic premises where Ofsted-registered childminding/childcare takes place must be suitable to be in regular contact with children. We carry out checks on those individuals to confirm that they are suitable. If a childminder is registered with a childminder agency, the agency carries out those checks.

We have a range of legal powers to carry out our regulatory responsibilities. These are set out in the Childcare Act 2006 and the early years and childcare enforcement policy. 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 (Ofsted-registered childminders and childcare providers only)

• grant/refuse approval to add additional or different premises to an existing registration

Inspection and reports

We have a duty to inspect childcare providers that are registered on the Early Years Register at regular intervals. These are set by the Secretary of State for Education and explained in ‘Inspection of early years register providers: requirements for Ofsted’. We also have a duty to prepare a report on the provision after the inspection and we will publish the report on our reports website.

We carry out compliance inspections of one in 10 providers on the childcare register, in agreement with the government. We send an inspection outcome letter to the provider and publish it on our reports website, where it will remain for 12 months.

Ofsted’s applications, regulatory and contact team

Our central point of contact for the public and all providers is the applications, regulatory and contact (ARC) team. It is responsible for:

• being the first point of contact with Ofsted

• giving information and guidance on using our website, including technical help for online applications

• carrying out all relevant suitability checks, including social services checks, references and Disclosure and Barring Service (DBS) checks, on all applicants and anyone connected with an application

• processing our registration work across early years and social care and the regulatory risk assessment of childcare providers

See contact details for the ARC team. Local authorities can contact us at [email protected] or on 0300 123 1231.

Criteria for registered childcare

The criteria for registration of childcare, subject to certain exemptions (see The Childcare (Exemptions from Registration) Order 2008), are set out below.

Childminding that requires registration is defined as care provided:

• for one or more children

• where at least one child attends for a period or total periods exceeding 2 hours in any one day

• for reward

• on domestic premises, where 3 or fewer people work together to provide the care

Where the total number of people providing the care exceeds 3, this is known as childcare on domestic premises. They do not ned to be providing childcare ‘for reward’. Unless exempt from registration, they provide care:

• for one or more children

• where at least one child attends for a period, or total periods, exceeding 2 hours in any one day

Building control

What Ofsted does

If we receive a concern relating to building work, we can request information from the applicant or registered provider. They should be able to supply the relevant information or evidence that their local building control department is satisfied with any building work taking place.

What building control departments do for Ofsted

Local authority building control departments must satisfy themselves that any building work, whether new build or alterations, meets building regulations.

Building control departments should tell us where they have information:

• about unregistered childminding or childcare provision

• relating to a concern about, or where they are considering taking action against, registered childminding or childcare provision

Environmental health

What Ofsted does

We tell applicants for registration as a childcare provider to check with their local authority department that they comply with their legal obligations under the Health and Safety at Work Act 1974, the Food Safety Act 1990, and all associated legislation.

We may contact the relevant local authority with environmental health responsibilities when inspectors identify a concern about food, health and safety or public health matters relating to a childminder or childcare provider.

What local authorities with environmental health responsibility do for Ofsted

Local authorities with environmental health responsibility should inform us when environmental health officers identify serious breaches of food or health and safety legislation in childminding or childcare provision.

Local authorities will also share information with us when they have information about unregistered childminding or childcare provision. The criteria for registration, subject to certain exemptions, is set out above.

Childminders registering as a food business

Childminders who provide food for the children they look after should be automatically registered as a food business by their local authority, using the details provided to Ofsted or their childminder agency.

Childminder registration with Ofsted is accepted for the purposes of food business registration under Article 6 of Regulation (EC) No 852/2004. Childminders that carry out food activities remain legally defined as food business operators and subject to food law.

We share childminder registration data directly with first tier and single tier local authorities only. We do this with the expectation that they will share this data with second tier local authorities and internal environmental health teams with delegated environmental health responsibility to enable childminders who provide food to be automatically registered as food businesses.

All food businesses, including childminders, have a legal responsibility to provide correct allergen information about the ingredients in meals and/or snacks they provide. It is also essential to ensure good food hygiene and food safety. Local authorities should signpost new childminders to ‘Safer food, better business for childminders’ and other appropriate food safety training and resources to help them meet the requirements of the EYFS framework and to keep children safe.

Carrying out checks on those associated with applications to register with Ofsted

As the regulator of a range of Ofsted-registered childminders, childcare providers and those running childminder agencies, we are responsible for checking that:

• providers are suitable to care for, or be in regular contact with, children

• they meet legal requirements

We are responsible for checking that all people aged 16 or over who work on premises where Ofsted-registered childminding or childcare on domestic premises takes place are suitable to care for children. In addition, we are responsible for checking that all people aged 16 years or over who live on that premises are suitable to be in regular contact with children.

As part of this, we carry out a check with local authorities about individuals who are connected with an early years registration to see if they have any relevant information about those individuals that we need to consider.

Ofsted regulates early years and childcare under the Childcare Act 2006 and associated regulations.

Applicants for registration as a childminder or another childcare provider must supply any information reasonably required by the Chief Inspector under sections 35(2)(b), 36(2)(b), 54(2)(b), 55(2)(b), 62(2)(b) and 63(2)(b) of the Childcare Act 2006, respectively.

Who we check with local authorities 

We carry out these checks on applicants for the following roles connected to a childcare registration.

Childminding premises and ‘childcare on domestic’ premises:

• the applicant for registration

• childminders’ assistants

• the person in day-to-day charge (manager)

• the nominated individual (where the applicant is a partnership, body corporate or unincorporated association)

• those who make up the registered person (where this is an organisation that has childcare as its sole or main purpose)

Childcare on non-domestic premises:

• the applicant for registration

• the nominated individual (where the applicant is a partnership, body corporate or unincorporated association)

• those who make up the registered person (where this is an organisation that has childcare as its sole or main purpose, such as committee members and trustees)

Childminder agencies:

• the applicant for registration

• the nominated individual (where the applicant is a partnership, body corporate or unincorporated association)

• those who make up the registered person (where this is an organisation that has the exercise of the functions of a childminder agency as its sole or main purpose)

What Ofsted does 

Applicants, and people connected to an application, complete forms that state they accept that Ofsted will carry out a range of checks on them. This includes each applicant agreeing that Ofsted will ask local authorities to carry out a check against children’s services’ records.

We contact the children’s services department for any local authority areas the individual has lived in within the previous 5 years.

For those connected to an application for registration, we ask the local authority whether it holds any relevant information about that individual that may affect their suitability to provide care.

For individuals who live or work at the address of a childminder or childcare provider on domestic premises, we ask the local authority whether it holds any relevant information about the individual that may affect their suitability to have regular contact with children.

For example, this information could include:

• whether the individual has been connected with a child protection inquiry

• whether the individual has had a child removed from their care because of their care of that child

• whether allegations about the individual have ever been referred to a local authority designated officer (LADO) in relation to working with children in any setting, and the outcome of those allegations

• something giving rise to concerns that children on childcare premises may be at risk of harm

The local authority may also hold personal information about any children of the people we are checking. We do not ask for this information, so those children do not need to give consent for their data to be shared (even if they are now adults). However, we may sometimes need to process personal data relating to children. We may receive this data as part of:

• the information that we reasonably require from applicants and those associated with an application under Part 3 of The Childcare Act 2006

• the information that the local authority shares with us as it may impact on someone’s suitability

We therefore need to process this data in order to carry out thorough and effective checks on individuals. This is part of how we perform our public function and task as the regulator of registered childcare provision.

When carrying out checks for us, local authorities may also identify information relating to individuals connected to the person we are checking but who are not named in the information we gave to them. We may need this information if it gives rise to concerns that children on childcare premises may be at risk of harm. Here, we would expect local authorities to exercise caution when sharing any personal information about that individual, but we do need to have enough information to be able to assess the suitability of the person we are checking.

Our privacy notice for childcare sets out what personal information we collect, what we do with it, how long we keep it and individuals’ rights under data protection legislation.

What local authorities do for Ofsted

When carrying out checks, local authorities will:

• accept that Ofsted has obtained consent from the person concerned to get information from children’s services records

• decide whether information can be released to Ofsted

• arrange a check of child protection records and other appropriate case records

• respond to Ofsted within 2 weeks of receiving the request stating that either:

  • the person is not known

  • information is held that may be relevant to the application, and a summary of that information

  • the person is known to children’s services, but information cannot be provided within 2 weeks and details of when the director of children’s services will provide Ofsted with the information

  • provide information in writing so that Ofsted can make a decision about a person’s suitability

  • be aware that any information provided to Ofsted may be shared with the subject of the check and that Ofsted may need to use the information to determine the outcome of the application for registration or to become an assistant of a registered person

Local authorities will also share information with us when they have information about unregistered childminding or childcare provision. The criteria for registration, subject to certain exemptions, is set out above .

What we do when a local authority gives us information

When a local authority gives us information about a person as part of our checks, this does not automatically mean that person is not suitable. We consider any information received and assess whether it affects the suitability decisions we need to make.

We may discuss the information with an individual at interview and it will inform our registration decision.

If we are checking an individual because they live or work on premises where Ofsted-registered childminding or childcare on domestic premises take place and we decide that they are not suitable to be in regular contact with children, we will inform the applicant for registration or registered person. Where this is based on information we receive from a local authority, we will not disclose the details that led us to make the decision unless we have the individual’s consent.

Sharing information with early years local authority leads

What Ofsted does

Ofsted will address any concern received about a childcare provider or childminder agency through the appropriate channels. This also applies where we receive information directly from a local authority and/or early years leads. Both Ofsted and local authorities must act within their legal obligations when managing information received about a provider to ensure GDPR compliance.

Inspectors will carefully consider any personal information shared with us as part of registration, inspection or regulatory activities. This includes personal information about registered providers or people associated with the registration. Inspectors will also consider who we can and cannot share this with so that personal information is protected. Inspectors may share personal information with the LADO, as safeguarding concerns will be dealt with through them. Inspectors will not share personal information with any other local authority personnel. This includes information about the suitability of a provider as well as ongoing regulatory activities. Details of suspension will not always be available in our published information as we do not publish an outcome summary for suspension alone. Therefore, we will tell local authorities when we suspend a provider as this could cause sufficiency issues.

We will manage other concerns through our complaints process. When we look into a concern or notification, we will always publish an outcome summary if we or the provider have taken action to meet requirements.

The role of early years local authority leads

Early years local authority leads should raise any concerns they have about a childcare provider or childminder agency through notifications, complaints or the LADO. They should not share information with inspectors directly outside of this process. This includes information relating to ongoing regulatory activities.

Early years local authority leads do not receive information from Ofsted about correspondence between Ofsted and the provider’s registered body.

Local safeguarding partners

Local authorities have the lead responsibility for investigating safeguarding concerns about children in their area. They have duties under section 17 of the Children Act 1989 to provide services to children in need for the purposes of safeguarding and promoting their welfare. Under section 47 of the same Act, they have a duty to make enquiries where they suspect that a child is suffering or is at risk of significant harm.

The Children Act 2004 (as amended by the Children and Social Work Act 2017) requires the 3 safeguarding partners in an area to agree local arrangements for working together to safeguard and promote the welfare of children.

The 3 safeguarding partners are:

• the local authority

• an integrated care system for an area, any part of which falls within the local authority

• the chief officer of police for a police area, any part of which falls within the local authority area

Local safeguarding partners’ responsibilities

Local safeguarding partners will ensure that processes are in place to inform Ofsted about child protection concerns involving:

• a registered provider

• a person in charge of a childcare setting

• a person employed in a childcare setting

• a person living or working on premises where childcare or childminding takes place

• childminder agencies

They will also make sure that they inform Ofsted if they become aware of any unregistered childminding or childcare

Safeguarding and child protection concerns

We follow our safeguarding policy and guidance in ‘Working together to safeguard children’.

We are not the statutory authority for enquiries into specific child protection concerns under section 47 of the Children Act 1989. If we receive any concerns about safeguarding or allegations of abuse, we will refer them to the relevant local authority children’s services and/or the police. It is for the local authority to determine how it responds to the concerns.

We will escalate to the director of children’s services if we remain concerned that appropriate action has not been taken. We will also carry out our own assessment of whether the provider meets the requirements for continued registration and decide on the appropriate action to take. We will work closely with the local authority and the police when there is a section 47 investigation. If the information suggests risk of harm, we may use our urgent enforcement powers.

Local authority children’s services arrange strategy discussions to help them to decide whether the information they hold about a child meets their threshold to investigate a child protection concern and, if so, the steps they need to take in response. We may attend strategy meetings if appropriate.

Ofsted’s role at strategy meetings is explained in the early years enforcement policy.

We will always carry out our own immediate assessment of risk to children based on the information we hold. This will determine whether there are any actions we should take, as the regulator. We will liaise with the local authority, police and other agencies as necessary, but we will always carry out our own inspection where appropriate. We will work jointly with local authorities to consider how to best to do this.

Handling child protection concerns

The address of the registered childcare provider may be in a different local authority to that of the child concerned. In these cases, the registered provider’s local authority will tell us as soon as possible which local authority will take lead responsibility for the assessment or investigation.

Child protection concerns that relate to a registered childminder or childcare setting

Local safeguarding partners, Ofsted and relevant agencies may be made aware of concerns that relate directly to a child’s experience within a childminding or childcare setting. These concerns may become known as a result of a formal complaint made to:

• a registered provider

• Ofsted

• family information services

• local authorities

• another relevant agency

We will take appropriate action to ensure the safety of children cared for by the registered provider. Where the responsibility and decision lie with the employer, and the provider prevents a person from working or being present at the establishment or agency, we will take this into account, and monitor the situation. We may suspend a registration if we reasonably believe that the continued provision of childcare by the registered person to any child may expose the child to a risk of harm. In some cases, we may take steps to cancel the registration. Further information on the action we may take can be found in our early years and childcare enforcement policy.

Child protection concerns that involve a registered provider as an individual

Local safeguarding partners, or Ofsted, may receive concerns involving a registered provider that do not relate directly to the children being cared for. For example, the concerns may relate to the person’s own children or may relate to the actions of a household member, such as that person being arrested for accessing pornographic images of children online.

Local safeguarding partners will tell us about these concerns as soon as possible because the concerns may affect the suitability of the registered person or manager. If available, local safeguarding partners will provide sufficient information to enable us to make a decision about the individual’s suitability.

Registered providers’ handling of safeguarding concerns

Where a childminder, childcare provider or staff member identifies a concern that relates to a child’s experiences outside the setting, they must follow local child protection procedures and the Department for Education’s safeguarding guidance.

The legal responsibility for child protection lies with the local authority. Ofsted usually only becomes involved in cases that directly concern a registered provider, household members of childminders and childcare providers on domestic premises, a manager of a childcare setting, or the staff of childcare on domestic premises. We do not normally become involved in cases that relate to staff members of childcare on non-domestic premises, or people who live or work on the premises of childcare on non-domestic premises.

However, if a local safeguarding partner becomes aware that a provider is not following appropriate procedures, it should tell us as soon as possible. For example, in a situation where a provider knows about an issue but does not notify us, and this information is known to a local safeguarding partner, we will investigate the provider’s compliance with the requirements for registration and take action to ensure the safety of children at the setting.

Supplying written information to Ofsted at the conclusion of a child protection investigation

Following the outcome of a child protection investigation concerning a registered person, the lead local safeguarding partner will ensure that information is passed to us to help us in making a decision about the registered person’s continued ability to meet the requirements for registration.

The local authority (or police if they are the lead agency) will give us a written statement that includes:

• the nature of the concern

• a written assessment of risk

• an outline of the conclusions of the investigation

• a clear statement of the assessed risk to children, with particular reference to any concerns identified on behalf of the registered person that we might need to pursue

• confirmation that the agency has informed the provider in writing of the outcome of the investigation

• a recommendation, if relevant, on the need for the registered person, or Ofsted, to provide information to the Independent Safeguarding Authority or to any other body about any person who is found unsuitable to work with children

Learning from serious safeguarding incidents

Local safeguarding partners are responsible for identifying and reviewing serious child safeguarding cases that raise important issues in their area. They will sometimes commission a local child safeguarding practice review to learn lessons from the incident and identify improvements that can be made to the systems and services that protect children. Serious child safeguarding cases are those in which abuse or neglect of a child is known or suspected and the child has died or been seriously harmed.

Serious child safeguarding cases sometimes involve a setting or provider that is registered with Ofsted. If so, local safeguarding partners may ask Ofsted to contribute to the review.

Media interest in child protection investigations

In cases of possible or known abuse involving a registered provider where there is likely to be media interest, it is important that the relevant agencies liaise with one another before releasing a press statement. These agencies may include the Department for Education, police and local authorities as well as Ofsted.

We will contribute to this process by making relevant information available to local safeguarding partners’ member agencies.

Appeals to the First-tier Tribunal (Care Standards)

When we take regulatory action against a childminder or childcare provider, which can include suspension, cancellation of registration or changes to conditions of registration, the provider has the right to appeal to the Health, Education and Social Care Chamber First-tier Tribunal. The tribunal will only uphold any action we have taken if it is satisfied the action is lawful, justified and proportionate.

If a provider appeals against suspension, the tribunal will hear the appeal within 3 weeks of it being made. We may require relevant supporting evidence from local safeguarding partners and relevant agencies to help us defend our action.

If the tribunal considers evidence provided by local safeguarding partners as important in reaching its judgment, we may ask a representative of a local safeguarding partners to attend a tribunal hearing. We may also ask the local safeguarding partner to give a written statement.

Although not part of the initial child protection process, decisions made at a tribunal hearing may be of direct relevance to local safeguarding partners’ objectives, as set out in ‘Working together to safeguard children’.

Ofsted’s contribution to any civil or criminal action by local safeguarding partners

We will comply with the Childcare (Supply and Disclosure of Information) (England) Regulations 2007, the General Data Protection Regulation and Data Protection Act 2018, the Human Rights Act 1998 and the Freedom of Information Act 2000, and any requirement by a court to make available any relevant information that we hold. This includes written statements or verbal evidence at court hearings for any civil or criminal proceedings initiated by local safeguarding partners.

Outside Ofsted’s regulatory remit

Child protection conferences

The legal responsibility for child protection lies with the local authority. It is not appropriate for Ofsted staff to attend child protection conferences unless there are exceptional circumstances. This is because we have no reason to have access to details about the family circumstances of individual children. However, it is important that we are informed, in writing, of any aspects of a child protection conference that may have a bearing on the suitability of a childminder or childcare provider and the safety of children in their care.