Childcare Registration in England: The Full Legal Requirements

Registration with Ofsted is not a formality for childcare providers in England – it is a legal prerequisite for operating, and the conditions attaching to that registration carry the force of law. The registration framework is set out primarily in Part 3 of the Childcare Act 2006 and the regulations made under it, principally the Childcare (Early Years Register) Regulations 2008 (SI 2008/974) and the Childcare (General Childcare Register) Regulations 2008 (SI 2008/975).

The Three Registers

The Early Years Register

The Early Years Register (EYR) covers providers of early years childcare: that is, childcare for a child from birth until 1 September following their fifth birthday. Registration on the EYR is compulsory (s.33 Childcare Act 2006) for anyone providing early years childcare unless a specific exemption applies. The exemptions are set out in s.34 and are narrowly drawn: they include parents (or those with parental responsibility) caring for their own children, local authority schools providing early years education during school hours, and persons providing childcare only to children in the same household. A registered childminder who provides after-school care to five-year-olds still needs Early Years Register registration if any of the children they care for are in their early years period.

Registration on the EYR entitles (and obligates) the provider to follow the EYFS in full, including both the learning and development requirements and the welfare requirements. EYR providers are subject to full Ofsted inspection and can access government funding for the universal and extended free entitlements.

The Compulsory Childcare Register

The compulsory part of the Childcare Register covers providers of childcare for children from five years old until their eighth birthday, where those children are not early years children. Registration is compulsory (s.96 Childcare Act 2006). Providers on the compulsory register are not required to follow the full EYFS learning and development requirements but must comply with the welfare requirements. They are inspected by Ofsted, though the inspection framework applied is different from that for EYR providers.

The Voluntary Childcare Register

The voluntary part of the Childcare Register (s.97) is open to providers of childcare for children aged eight and over. Registration is not legally required, but providers who do not register cannot accept Tax-Free Childcare payments for the relevant age group. Many after-school clubs and holiday clubs register voluntarily to remain eligible for government subsidy. Voluntary registrants are subject to a registration inspection and periodic reinspection by Ofsted, applying the lighter-touch voluntary register requirements set out in Schedule 2 to the Childcare (General Childcare Register) Regulations 2008.

The Fit and Proper Person Test

At the heart of all three registration processes is the fit and proper person requirement. Ofsted must be satisfied that the applicant (or, for a company or partnership, every person who is responsible for managing the provision) is fit and proper to be concerned in the management of, or to be in regular contact with, children in an early years or later years setting. This is not a tick-box exercise – Ofsted considers a range of factors including criminal record (from the DBS check), past regulatory history, references, evidence of understanding of safeguarding and child protection, and any other information suggesting the person may pose a risk to children.

The fit and proper person test is applied at registration and at every subsequent inspection. A change of responsible person (for example, where a childminder takes on a business partner, or where a company director changes) triggers a new application to add that person to the registration, and Ofsted will apply the test to the new person before approving the change.

DBS Requirements

Every registered provider, every employee and every regular volunteer in contact with children must hold an enhanced DBS check with a barred list check. The requirement arises from the Childcare Act 2006 (via the EYFS welfare requirements) and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023, as amended), which permits enhanced criminal record checks to be required for those working with children and vulnerable adults. An enhanced DBS check with barred list check reveals spent and unspent convictions, cautions, reprimands and warnings, plus any relevant police intelligence that a chief officer considers relevant, and confirms whether the person is included on the DBS children’s barred list. Inclusion on the barred list is an absolute bar to working in regulated activity with children – employing a barred person is a criminal offence under the Safeguarding Vulnerable Groups Act 2006.

For childminders, the DBS check must cover the childminder and any person aged 16 or over who lives or works in the home where the childminding takes place. This means household members who are not involved in childminding activities must still be DBS-checked – a requirement that has caused significant controversy and has occasionally been tested before the First-tier Tribunal.

Conditions of Registration

Ofsted has power under s.54 (Early Years Register) and s.64 (Childcare Register) of the Childcare Act 2006 to impose conditions on a registration. Standard conditions include the maximum number of children who may be cared for at any one time and the age range of children who may be cared for. Additional conditions may be imposed where Ofsted has concerns about specific aspects of provision. Conditions form part of the registration and must be complied with from the date of registration – operating in breach of a condition is a criminal offence.

Providers may apply to Ofsted under s.54(5) to vary the conditions of their registration – for example, to increase their numbers. Ofsted may agree, refuse or impose new conditions in response. Any refusal carries a right of appeal to the First-tier Tribunal.

Notification Obligations

Registered providers have a continuing duty to notify Ofsted of certain events and changes. The specific requirements are set out in the Childcare (Early Years Register) Regulations 2008 and the Childcare (General Childcare Register) Regulations 2008. They include:

• changes of premises
• changes of manager or nominated person
• changes to the DBS status of any staff member
• serious accidents, injuries or deaths of children in the setting
• allegations of abuse against a member of staff
• any outbreak of notifiable disease
• any incident which causes concern about the welfare of children

Failure to notify Ofsted of a notifiable event is itself a regulatory breach that can affect inspection outcomes and, in serious cases, lead to enforcement action.

Cancellation and Voluntary Deregistration

Registration may be cancelled by Ofsted under ss.68–71 of the Childcare Act 2006 (see our article on Ofsted’s enforcement powers for detail). A provider may also voluntarily cancel their registration at any time. However, as noted in our Ofsted article, Ofsted retains the power to proceed with compulsory cancellation even after a voluntary application, where it considers this is in the public interest. Voluntary deregistration does not remove the provider’s regulatory history – any future application to register again will be assessed in the context of that history.