The FSO and childminders

[val]

I would welcome views on the application of the FSO to childminder's premises.

Whatever the legal position, I do not advocate Part 1 AFD and emergency lighting plus a fire engineeered solution to the unprotected stairway!

If the premises are still considered domestic premises then the Order doesn't apply. If however you consider the childminder to be running a business and their home to be their place of work, then the Order does apply. Could the number of children be significant?

I believe that the Order applies in full, although the risk assessment process would generally be very simple. There are, of course, also fire safety requirements in the National Minimum Standards, which complicates matters.

I could do with some re-assurance.

[PhilB]

I don't think there is an easy answer Val. If I look after one child in my home, surely that is a domestic premises and the Order does not apply

........... but what if I look after 10 children, for the time that they are there my house is clearly not being used just as a domestic premises and the Order would, in my opinion apply.

Not much help I know!

[John Webb]

Val,
I know from working with the play-school that hires my local church's hall that OFSTED and others have strict upper limits on the numbers of children per person that such workers can look after. Generally the younger the children the fewer of them can be looked after by one person. Would this automatically limit the number of children a single childminder could look after in their own home?
Personally I would have thought that if the childminder was being paid then they are working and therefore their residence is their place of work and not a domestic residence, at least while the children are there?

[val]

Thank you Phil and John,
I believe that a childminder can be registered for EIGHT children as long as they are over a certain age (2 I think but don't quote me).
H&S legislation seems to apply which suggests that their home is considered a workplace.
I assume that if the childminder employs an assistant then the argument is more straightforward.
I don't imagine much enforcement going on but it is nice to know...just in case.

[fred]

This is an issue which is reliant upon a protocol or memorandum of understanding inplace between the FRS and its Regional OFSTED office.  It is likely that general fire safety precautions will be enforced by the FRS.

If there isn't such a protocol in place OFSTED could require fire safety inspections of domestic premises before approval of registration - nice work if you can get it, but hardly worthwhile use of an FSO's skills.  They have better things to do !

I believe that a national protocol between OFSTED and CFOA is close to agreement.  I presume that the applicant wil be required to comply with National Standard 6 (OFSTED) for safety, and OFSTED will notify FRS if they have 'significant concerns for fire safety' but will nevertheless register applications unless they have 'serious fire safety concerns'.

Yet to be agreed - but hopeful.

[Tom Sutton]

Val I would agree with your understanding of the legal aspects but I would consider it a point of law and it would need to be tested in the courts to be certain.

For guidance CACFOA produced three leaflets which was split into,
a) Recommended protocol between Ofsted and fire authorities and suitability of premises for the provision of care for young children.
b)Guide No. 1 - Fire Precautions for Childcare Facilities that are Places of Work.
c)Guide No. 2 - Fire Precautions for Domestic Dwellings used for Child minding Activities.

However the new CFOA and APFO have no mention of the leaflets but I do have copies if of any use.

[Big A]

Is this not covered by Article 43? If subject to legal challenge, would OFSTED/CSCI be able to include fire safety provision on a registration (see Art 42(3)(b) or require a fire service inspection?

[wee brian]

You are right - Fire Safety can only be dealt with under the Order, licensing and registration bodies cannot impose conditions that relate to fire safety.

[fred]

You are right - Fire Safety can only be dealt with under the Order, licensing and registration bodies cannot impose conditions that relate to fire safety.

Oh really ?

If - as a condition of registration - the applicant if required to comply with the following (extract from OFSTED Standard 6 - Safety) then it looks to me as if OFSTED have a fire safety enforcement role  

Fire safety
6.11 A fire blanket, which conforms to BS EN safety standards, is provided
in the kitchen.
6.12 Smoke alarms, which conform to BS EN safety standards, are provided
at every level of the house and are maintained in working condition.
6.13 The childminder has devised and practised an emergency escape plan.
6.14 If a local fire safety officer has visited, the childminder complies with, and
keeps records of, any recommendations he has made.

[jokar]

Fred, that is okay.  However, the only enfoceable part is that the enforcing authority deals with.  No licensing, registration or certification authority can impose conditions on those documents.  If they do they will not be enforceable in law because of Article 43.

[PhilB]

I agree with Fred some other regulaltions do impose duties relating to fire safety and quite rightly so.

Another example is the Care Home Regulations made under CSA.

Article 43 says that conditions imposed have no effect in so far as it relates to any matter in relation to which requirements or prohibitions are or could be imposed by or under this Order.

That does not mean that no conditions can be imposed by other authorities, it just means they would have no effect if they could be dealt with using the Fire Safety Order. Nearly identical to the old section 31(I think!) of the 71 Act.

Some of the dinosaurs on here will remember that that section meant that FP Act was the principle fire safety law but it did not stop for example licensing authorities requiring maintained lighting as a condition of a liquor license. FRS howwever would not show that necessarily as a condition of the fire cerificate.

[fred]

Fred, that is okay.  However, the only enfoceable part is that the enforcing authority deals with.  No licensing, registration or certification authority can impose conditions on those documents.  If they do they will not be enforceable in law because of Article 43.

I understand the legislation, but I don't quite follow your drift Jokar - if at the application stage, the applicant hasn't provided the fire safety requirements I posted earlier - OFSTED won't register them.  The OFSTED inspector is quite capable of identfying if the prescribed fire safety requirements have been met.  If they have 'serious fire safety concerns' then they can ask FRS to go in - otherwise they can deal with it themselvesl.

[Gel]

I recall some Local Authorities who licence at moment have some specific extra reqmt's if children staying overnight eg interlinked alarms.

[jokar]

Fred, as far as I am aware and please correct me if I am wrong in my assumption, is that only an enforcing authority under the RR(FS)O can impose conditions on a Responsible Person through the enforcement process.  Whilst I understand that Ofsted will want the premises to meet certain criteria, surely it is down to the RP to ensure that the Fire safety Duties have been met through the use of a FRA.

[Tom Sutton]

As Fred said the legal niceties are immaterial if Ofsted is satisfied that the applicant has not met their conditions they will not register them end of story. The legal point first raised was, is a domestic premises used for child minding subject to the RR(FS)O?