A Guide to Regulatory Enforcement
Regulatory Enforcement Key Messages
The Early Years Inspectorate is committed to the safeguarding and wellbeing of children who attend Early Years services. We achieve this through the registration and inspection of early years’ settings. In this process the inspectorate are empowered by legislation to directly enforce standards and the relevant regulations subject to fair procedures in all eligible services. The majority of providers are and work hard to be compliant with the regulations. They engage positively with the inspectorate to correct and improve their services when and if required.
What is registration and who does it apply too?
Registration applies to all providers of Early Years services who provide care and learning experiences to children aged 0-6 years. The only current exemption are for child minders who are providing care to family members or to 3 or less children in their own homes. It is against the law to provide an early years’ service and not be registered with the Early Years Registration Team. Registration is a process whereby any proposed provider in advance of opening a service must first make an application to be an approved provider. New Registration applications can only be made to the Early Years Registration Office and must be submitted in a prescribed format.
How are applications for Registration assessed?
Once an application is received it will be assessed for completion and suitability. This takes place in two stages. Stage One examines the application to ensure that all of information supplied is correct, it will be verified and assessed that it is incompliance with the regulatory requirements. The registration team reserve the right to seek additional information and or to request alternative documentation if needed. Incomplete applications will not be assessed, nor will applications that are inaccurate or misleading in any way. The applicant will be informed at all times if there are any omissions or issues that would prevent their application being assessed.
If Stage one is completed to the satisfaction of the Early Years Registration Team, then the next stage of assessment can occur. Stage two involves the assessment of the premises whereby it is proposed to provide the Early Years’ Service. The premises are inspected by an authorised Early Years Inspection Officer and an inspection report completed with a list of actions if any are given to the provider, and must be completed within a prescribed timeframe. This process is collectively called “A Fit for Purpose” Inspection.
It is only once the Early Years Registration Team have confirmed in writing that the service is registered can it proceed to commence caring for children. The making of an application does not permit a service to open, and parents are advised to either check the National Register for Early Years Settings on the Tusla Website to check if a centre is registered or to seek a copy of the written verification which was issued to the centre. Parents can also email email@example.com to check if a service is registered or not. Centres within two months of achieving their registration will receive a certificate of registration from Tusla.
Are there any exemptions for registration or opening before registration is complete?
No none, it is an offence to operate an Early Years’ Service without registration. Providers who are found to be operating an unregistered service will be required to cease and close immediately, and it is Tusla policy to prosecute services who operate and or who are in charge of an unregistered Early Years’ Service.
Can an Early Years’ Service suddenly change the numbers of children or the premises they are operating from?
No, a service once registered must only operate within the parameters of that registration, and if they wish to change any aspect of their registration they must apply to the Early Years Registration Team to make those changes prior to the change being advanced. This process is known as the “Change in Circumstances” process. It is an offence to carry on an Early Years’ Service which is operating outside of its registration parameters. Such parameters include the number children that can be accommodated, the type of service provided, the premises used to care for children, etc. Services who are found not to be operating in accordance with their approved registration will be subjected to enforcement and must cease the unauthorised aspect of their service. If they don’t they will be prosecuted. Providers may apply once they have ceased the unauthorised aspect of their service to re-open it. This is only permissible where the provider has complied with the notice of cessation. If they have not any application to make changes will be rejected.
How long does it take to complete a change of circumstances application?
It is dependent on the nature of the change being applied for, the statutory period for a change process to be completed is 90 days. There is no emergency or shortened route available and providers should not make promises to parents in respect to increased capacity or availability of a service until this change is confirmed by the registration office. Change applications are processed as they are received. Changes should not be made in a service simply as a result of making the application nor should they commence on an assumption that a change will be approved.
What about Early Years Services which have been opened since before the Early Years 2016 Regulations?
All early years’ services irrespective of when they opened are required to be registered. Under the legislation services are registered for a period of three years after which they are required to apply for registration again. It is the provider’s responsibility to ensure that all matters concerning their registration are up to date and correct.
How long can a service be registered for?
It is for a maximum period of three years on any one application. During the three-year period the registration status of each service is reviewed following every inspection, follow up, or inspection following receipt of unsolicited information. Once registration is granted it is the responsibility of the provider to maintain same. Registration retention should not be presumed and can be removed, or altered by the Inspectorate if there is just cause to do so at any time.
Can Parents make specific requests of providers in a private capacity contrary to the requirements of regulations or registration requirements?
No, Early Years providers are required to ensure that all arrangements to care for children are compliant with the regulations and are coherent with their registration status. Permission or consent from parents to operate any aspect of a service contrary to the legislation is not permitted.
What happens once an inspection of a service has taken place?
Following any inspection of an Early Years’ Service, the Early Years Inspectorate develop a draft inspection report which lists compliant and non-compliant findings. This is sent to the service and the provider is invited to submit a Corrective and Preventive Action (CAPA) response. The CAPA provides the service with an opportunity to detail and provide evidence in relation to what corrective and preventive actions they have taken to ensure that the non-compliant issue is resolved and how they will prevent the non–compliance from occurring again. If the Early Years Inspectorate is satisfied that the submitted information and evidence effectively addresses the issue this will be recorded on the inspection report. If satisfactory evidence is not provided, then the Early Years Inspectorate may propose to attach a condition to the registration of the service. The service then has a further opportunity to submit information and evidence in relation to the issue. If satisfactory evidence is not provided, then the condition will be attached to registration. If there is no response made to a proposal to add a condition by a provider, then the condition will be automatically applied after the statutory allowed period of 21 days without further notice to the provider.
What is a condition of registration and how do I know if a service has a condition applied to its registration?
A condition is applied to a service registration in order to assist it to address the noncompliance identified. They are usually very specific and time limited and will be followed up by the Early Years Inspectorate either through another inspection or direct request for information and evidence regarding compliance with the condition.
Details concerning attached conditions are made publically available via two sources via the Early Years Section on the Tusla website. The information is made available in the inspection report section and is available on the national register of early years providers, which is also available on the website.
How can a condition be removed or altered?
A provider can submit Information and evidence in relation to the condition to the Inspectorate at any time and it will be considered for removal or alteration. However, requests to alter the terms of an attached condition will only be considered where the provider has provided the required and verified evidence that they are now compliant with the relevant regulations.
What if a condition of registration has not been adhered too or is found not to have been met on a follow up or subsequent inspection?
If the condition remains attached the provider is legally required to adhere to it until advised to the contrary. If it is found on subsequent inspection (which may be triggered through the submission of Unsolicited Information) that the provider has breached or has not adhered to one or more condition, enforcement actions will be taken by the inspectorate. Enforcement actions will include consideration of removing the service from the Register of Early Years Services. It is an offence under legislation not to comply with a condition of registration.
What happens if a provider is convicted of an offence under the Early Years legislation?
It is most serious for a provider or a person in charge to be convicted of an offence under the Early Years legislation. Since the introduction of the Child Care Act 1991 (Early Years Services) Regulations 2016, the Early Years Inspectorate are prohibited from registering any person or persons as a provider of an early years’ service who has been convicted under this legislation. It is Tusla Registration policy to pursue prosecutions in the following circumstances
- A person or agency has operated an unregistered early years’ service.
- A person or agency has operated an early years’ service contrary to the stated terms of their registration and has failed to cease when instructed.
- A person or persons has failed to co-operate with or has impeded an inspection officer in the course of their duties.
- A person has failed to allow an authorised officer access to an early years’ service.
- A person or agency has failed to cease operating once removed from the register of services.
- A person or agency who has given notice of voluntary closure but has continued to operate an early years’ service.
- A person or agency who impedes the inspectorate by way of deliberate deception or the provision of false information.
What if a service has numerous non compliances found on repeated inspections?
If a provider is found on repeated inspections to be struggling to meet and maintain adherence to the regulations despite submissions of acceptable CAPA’s following inspection the matter will be referred in all instances to the registration office for consideration. It is the duty of all providers to take responsibility to meet all the regulations which are designed to protect the wellbeing of children at all times. Repeated failure to meet compliance with the Regulations is unacceptable and considered a failure of governance, this will result in the appropriate enforcement action being taken.
What if a service is not on the public register when I search on line?
The register is completed a month in arrears and it may be that if the centre was only recently registered or made an application to have some aspect of their service altered. If there is any doubt about a services registration status, contact should be made with the Early Years Registration Office.
If a service is in a regulatory enforcement process, how would parents of children in the service know?
Reports are published when the registration process including any escalation and/or enforcement process is completed. On the first two pages of the service inspection report clearly outlines the dates of inspection, review inspections, regulatory compliance meetings and registration enforcement meetings.
A parent can discuss with the service’s registered provider at any time inspections of the service by Tusla. The Registered Provider can update parents on when inspection occurred and their outcomes. As a result of Tulsa’s regulatory and prosecutorial function which may cumulate in criminal prosecutions it is not possible for Tusla to advise third parties of the commencement of proceedings.
If an inspection report is not available online, how can I access this report?
Reports can only be published when the registration process has been completed and has been through registration panels. At each stage of the inspection process, the registered provider receives a draft inspection report from the Inspectorate which can be made available by the Registered Provider.
What is enforcement? and how does it happen?
Enforcement takes place in a number of ways following inspection if there are any identified actions requiring action the provider is required to demonstrate two things in respect of each action. One how they will address the issue in the present and secondly what actions they will take to prevent the matter reasonably reoccurring. This was referred to in an earlier section as the corrective and Preventative process (CAPA). What can sometimes occur either during or after an inspection is the issuing of an immediate action notice. Such a notice instructs a service to take a particular course of action which must be complied with in order to address a serious concern immediately. Both processes are compulsory and are not optional.
There are times when a service may be be escalated to the National Registration Enforcement Panel (NREP), referrals are made to this panel under the following circumstances
- Non compliances remaining following the inspection and CAPA process
- Non compliances remaining following the inspection, CAPA process and Regulatory Compliance meeting
- Inspections which were triggered by Unsolicited Information that was risk rated critical
- Service that has not received registration but commenced operation.
- Proposed change in circumstances that has not received approval but operates outside of their registration.
- Services operating outside of registration parameters without approval to do so.
- Services who have not complied with attached conditions.
- Services who have not co-operated with or have impeded an inspection or an authorised officer.
- Services who are found to repeatedly have ongoing non compliances on inspection despite having addressed them following previous inspections.
The National Registration Panel is a high level forum which is authorised to take regulatory enforcement action where warranted. Once a service is referred to the national panel it remains under the jurisdiction of the panel until the concerns are closed out. The purpose of the panel is to ensure that a proportionate response is taken to enforcement in Early Years Settings. Under legislation compliance with the Regulations remains the responsibility of the provider. The role of the provider is to ensure that children in the care are safe and well cared for and that the service is operated in a manner congruent with the requirements of the legislation. Where this has not been the case or where repeated recurrent failings are occurring Tusla will pursue its powers to assure the well-being of children to its fullest extent.
The Agency’s process of ensuring regulatory compliance includes the following mechanisms
- Corrective and Preventive Actions
- Validation of corrective and preventive actions
Note: The escalation of regulatory enforcement actions is not always linear. The regulatory response and, where required, the pathway of enforcement will be determined by the specific circumstances of each service.