Inflexible Building Rules Could See Ministry Of Education Suspend Early Learning Licences Overnight

Lack of clarity with the Ministry of Business, Innovation and Employment’s new approach to building regulation could see Ministry of Education shut early learning centres overnight, leaving parents scrambling for care and massive disruption for providers.

“Providers just want certainty,” said Early Childhood Council CEO Simon Laube. “Of course buildings must be safe, but right now, centres could be shut down in 24 hours for really minor issues. There’s no consistent national approach to this change and the ECC is hitting brick walls.”

New MBIE guidance to councils mean the MoE may suspend any ECE centre’s licence immediately for failing minor points like a broken emergency lightbulb, missed inspections or an alarm company scheduling issue.

MoE regulations state that ECE centres must have a current building warrant of fitness (BWoF) in order to operate. They have no discretion to turn a blind eye.

Under the new MBIE guidance, buildings can be issued an ‘S-RaD’ document, making a building ineligible for a BWoF. This is followed by a B-RaD, which means the building is non-compliant.

The ECC has sought clarification on the problem from MBIE on what centres can do to avoid this, without success.

Without a consistent national approach, Councils are using their own processes, adding another layer of complexity. Under previous Auckland Council rules for example, any centre that missed or failed an inspection due to a minor defect could be issued a Work in Lieu Certificate, meaning they could at least operate while dealing with any minor compliance issues.

“Safe, fit-for-purpose premises are a non-negotiable for everyone in the sector – but how do centres practically operate with these new approaches that are poorly thought out and communicated once again? It’s chaotic,” said Simon Laube.

“Our expert advice says being issued a B-RaD means a building is no longer considered compliant with the Building Act. Our concern is that the MoE will have no choice but to suspend the licence because the service is non-compliant with Section 9(1)(e) of the Education (Early Childhood Services) Regulations,” said Simon Laube.

“MoE is telling the sector that centre licence decisions would be made on a case-by-case basis – but we don’t know what factors influence those decisions. We are aware of plenty of recent cases where centre licences have been cancelled.”

“It’s yet another example of regulators that don’t communicate, imposing changes to standards or expectations overnight with little thought of their impact.

“When a service is not licensed it cannot operate – meaning families get very little warning that their ECE will be closed. Unfortunately it’s often community groups and small businesses who get caught out, sometimes in a 24-hour period. This causes parents a lot of stress and means they need to make other arrangements and often can’t go to work as planned.

“There’s nothing more that ECC can do to give our members clarity about what appears to be yet another case of a poorly conceived and communicated regulatory change threatening their viability,” said Simon Laube.

KEY POINTS

• MoE requires all ECCs to have a BWoF
• A building can fail the BWoF process due minor issues e.g broken light or delayed inspection
• Neither MoE or MBIE have a process for addressing minor issues to allow BWoF compliance
• S-RaD and B-RaD regulations were introduced during COVID-19
• Previous Auckland Council Work in Lieu Certificate no longer acceptable from October 2023
• There are 1,312 licensed ECE services in Auckland. Of those, 1,046 are classified as education and care centres
• It is currently unknown how each Council is dealing with MBIE’s change, however, we are aware that there are Councils that have not yet adopted approaches that comply with MBIE’s guidance.

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