Unclear Regulations – the Change to the person responsible requirement.
June 4, 20201.
A complaint against the early childhood regulations was heard this week by Parliament’s Regulations Review Committee.
The complaint stemmed from the recent change that allowed primary qualified teachers to be the person responsible and had the consequence that teacher-led centres no longer needed to have an ECE qualified teacher on site in order to open.
David Haynes contended that the regulations cannot be easily understood and suggested changes to the regulations to correct the confusion. He based this on the widespread confusion caused when the regulation change was announced, with different centres getting different advice from different Ministry staff. See the complaint
He recommended amendments to the regulations which would make them clear and require that 50% of teaching staff present in a teacher-led centre be ECE qualified.
The Ministry of Education’s response to Haynes’ complaint was that the Ministry considers Regulation 44 (3) and (4) and schedule 1 can be clearly interpreted and no changes are needed. See their response.
However, Haynes noted that if the regulations were so clear then why was it necessary to issue guidance on these to assist with interpretation?
Haynes told the committee that at a hui he attended on the Early Learning Action Plan, the Ministry’s Director of Early Learning, Nancy Bell, was unaware that the regulatory amendment had removed the requirement to have any qualified ECE teachers present in order to have a centre open.
“If the regulations were clear then the ministry’s own Director of Early Learning would have understood them – yet she did not. The regulations cannot be clear.”
Haynes told the committee that it used to be that the ‘person responsible’ in an early childhood centre had to have completed a recognised early childhood education qualification, but the regulations were amended to allow a primary qualified teacher to be ‘person responsible’.
He added that while the ministry’s regulatory impact statement says teacher-led centres would still be required to have 50% or more ECE qualified teachers” it was silent on the need for any of those teachers to be on site for the centre to open.
But Haynes believes that Cabinet were led to believe that ECE teachers would continue to be on site and that the regulations would continue to ensure a high presence of ECE qualified teachers in teacher-led centres.
“It is my opinion that Cabinet had no idea that amending the regulations would remove the requirement to have ECE qualified teachers present in teacher-led centres at all times. After all, it is reasonable to expect to find ECE qualified teachers in something called a teacher-led ECE centre,” Haynes said.
The Ministry of Education was represented at the parliamentary committee hearing by its acting group manager, John Brooker, and Senior Policy Manager ECE, Siobhan Murray. The chair of the committee asked them to explain why they felt the regulations were clear. Mr Brooker stated that, when taken with the ‘operational guidance’ issued by the Ministry, he felt that the regulations were clear. (Haynes feels that statement proves that the regulations by themselves are not clear.) Ms Murray provided some history relating to the regulations, but was asked by the committee chair to explain to the committee how the different parts of the regulations made its requirements clear. She stated that she did not have the regulations in front of her.
The Regulations Review Committee can only hear complaints on very specific grounds. Haynes’ complaint was under Parliament’s Standing Order 319(2)(i) and his complaint stated that the regulations required elucidation and clarification. Evidence to the committee must relate to the specific grounds that the committee can consider. The Ministry’s evidence did not do that.
The chair of the committee tried, without success, to direct the Ministry’s officials to address the specifics of Haynes’ complaint. He then took the unusual step of adjourning the item to a future meeting so that the Ministry of Education could have more time to prepare an explanation on how the regulations worked and therefore why the Ministry of Education felt the regulations were clear.
After the committee hearing Haynes said: “I was very disappointed that the Ministry officials did not seem to have done any preparation for this select committee meeting. Taxpayers, service providers and teachers should be disappointed that Ministry officials were unable to explain the regulations.”
UPDATE: Person responsible can’t legally be counted in ratios, or can they?
The parliamentary committee has now heard from the education ministry officials after they were sent away from the 3rd June 2020 session to do their homework.
Committee members pointed out a further problem with regulations on staffing. According to Regulation 44(1) “the adults providing education and care . . . are supervised by a person responsible.” As a person cannot supervise themselves, Committee members felt that, therefore, the person responsible could not be counted as being within ratios to meet the minimum number of adults “providing education and care” required by Schedule 2. The ministry officials stated that was not what was intended.
It therefore raises a possibility that the Ministry of Education could be allowing early childhood services to unwittingly be counting the person responsible as an adult ‘providing education and care’ when regulations do not seem to permit this. We can probably expect further “operational guidance” from the ministry to clarify this part of the Regulations – although the committee noted that such guidance material is the ministry’s interpretation of the law, not the law itself.
Committee members wondered if it was time to review the Regulations. The ministry’s officials noted that the Early Learning Action Plan contained a number of initiatives that would require changes to the Regulations (but note that the Plan did not consider the actual questions and problems raised here on staffing regulation).
Subsequent to hearing from the ministry officials, the parliamentary committee’s members have concluded that the regulations are difficult to understand, possibly ambiguous and clearly breach parliamentary standing orders. They have recommended that there be a complete re-write of the regulations and have written to the Minister to receive his input before deciding how to proceed in respect of this complaint. The Minister’s input is due by Friday 17 July 2020.
Comment contributed by a member
Hugo: “People in the Education Ministry are lacking in ECE work experience. They would not know the difference in ECE training and Primary training. We share much but are specialised in very young children. Having the ECE qualified on site is very important to support other teachers not qualified and working the shifts and different rooms.”