Document 1
Out of scope
From: Simon Laube <[email address]>
Sent: Tuesday, July 9, 2024 3:05 PM
To: David Seymour <[email address]>
Cc: 9(2)(a)
; 9(2)(a)
Subject: Thank you for your support - testimonials provided to MoE from the community
Kia ora Minister
Thank you for everything you have done to support Country Kindy so it is treated fairly. The 12 week stay is very
welcome news.
This email shares some information and insights that may assist. It includes ECC’s representation to the Ministry
which got ignored together with an impressive collection of parent testimonials.
I understand that today the parents have sent in their new letter signed by attendees at the 4 July community
meeting (email from 9(2)(a)
email address).
The Country Kindy case resonates across ECC’s membership. For our members it is about unreasonable
regulatory conduct and disproportionate sanctions by the MoE, ie after Country Kindy who will be next? Our
members are understandably fearful. Unfortunately I am aware of other cases including the other case that is
before the District Court in Auckland.
The Country Kindy case also highlights the importance of parents being able to maintain their ECEs of choice. This
is one of the objectives/purposes set out in the Education & Training Act. Arguably it is already a statutory
expectation that the Ministry should be giving regard to – but it is not: s14(c). There should already be a balancing
of these objectives and considering the harm the MoE causes through cancelling a licence through a lens of
diversity of provision and parent choice.
1
When it comes to curriculum the MoE regulations merely provide the basic “wiring”, how practice and learning
actually unfolds is meant to be constantly evolving and is best assessed by ERO during its reviews (snapshots).
During a review they test the systems thoroughly. All systems require fine-tuning and maintenance. The last
Country Kindy ERO review placed the service in the “establishing” grade (highlighted) – ie not the bottom grade.
Considering the staffing challenges Country Kindy has been dealing with – this is an impressive result and yet they
are focused on how they can improve further, as all services should be.
2
ECC is aware that ERO is not providing ANY “Excelling” assessments in the ECE reviews at all. This is a major
system weakness – a healthy system should both catch services who are poor performing but also reward those
for success and excellence – positive feedback and recognition are very powerful motivators. We are lacking that
incentive in the current review system.
Ngā mihi
Simon
Chief Executive Officer | Early Childhood Council | (He/Him)
3
[email address] | 9(2)(a)
| 04 471 0392
4
Document 2
Fa'amanu Taeao
From:
Simon Laube <[email address]>
Sent:
Monday, 27 May 2024 8:32 am
To:
9(2)(a)
@Education.govt.nz; Marlene Clarkson
Cc:
9(2)(a)
; Iona Holsted
Subject:
ECC representations for Country Kindy
Attachments:
ECC representation for Country Kindy - MoE licence cancel ation proposal.pdf; CK
responses to MOE intent to cancel license.pdf; Country Kindy Testimonials - Private and
Confidential.pdf
Kia ora 9(2)(a)
Please see attached ECC’s representations (and supporting documents) relating to the Ministry’s proposed
cancellation of Country Kindy’s licence to operate a centre.
Iona – FYI
Ngā mihi
Simon
Chief Executive Officer | Early Childhood Council | (He/Him)
[email address] | 9(2)(a)
| 04 471 0392
1
Document 3
9(2)(a)
Manager Integrated Services Taranaki, Whanganui, Manawatū
Ministry of Education
By email: 9(2)(a)
@Education.govt.nz
27 May 2024
Re: ECC’s representations in relation to the Ministry of Education’s intention to cancel
the licence of Country Kindy Ltd (45768)
Tena koe 9(2)(a)
Overview of relevant issues
Your letter of intention to cancel consists of a series of narrow decisions, supported by
limited and incomplete evidence collection - relating to conditions which you set without due
regard to the regulatory concerns which you had.
Your application of the regulations has not been reasonable and ECC argues your intention
to cancel the licence would not be legally justified.
The Ministry must remember its role in the ECE sector does not include the provision of
services directly. You may want service providers to meet the regulations in particular ways
but you do not have the means to require explicit undertakings except in the case of being
able to issue a health & safety direction.
You must remain impartial and administer the regulations and funding in accordance with
rules agreed by Parliament (the regulations) and the rules set by warranted Ministers of the
Crown (the criteria guidance and funding conditions). Of icials cannot impose their own
subjective views about how a service should meet the regulations if the service provider
asserts they are operating within the regulatory framework.
Your role should be
clearly focused on al children being able to participate in ECE and
receive a strong foundation for learning, positive wellbeing and life outcomes by:
1. Setting standards to
support quality ECE provision and learning
2.
Supporting the health and safety and wellbeing of children and
3.
Enabling parental choice by providing for licensing and funding of dif erent types of
ECE provision.
The above objectives are taken directly from the Education & Training Act 2020 (section 14).
In Country Kindy’s case, ECC submits that they have performed reasonable actions to
satisfy your conditions. If you decide to cancel the licence, ECC would contend that would
not be legally justified and amount to unjustified discrimination on the service provider as a
similar new service provider with the same operational approaches would be eligible for a full
licence.
ECC encourages you to reconsider your interventionist approach and reclassify the service
provider with a full licence.
If you have lingering concerns you could make further requests in writing and schedule a
future licensing review. If you have any health & safety matters of concern you had the
option to issue a direction under regulation 54A. The option of cancellation is a last resort
and should only be considered if there is a material risk to children – which you have not
found.
If you can be specific and identify material concerns with the way the service operates in the
confines of the regulations, ECC would encourage the service provider to address these.
ECC would also support our member to comply. To-date, ECC cannot discern any material
non-compliance practices or policies with Country Kindy’s operation of its centre.
Ministry approach lacking consideration of the public interest
Non-compliance findings must be considered in context and they must be more than merely
administrative and technical matters. In your letter you have equated the performance or
non-performance of a condition as absolute, but performance should be able to be
measured. Non-performance of a condition is not the same as non-compliance with the
regulations.
You need to be able to show that non-compliance with the regulations presents a significant
and/or material risk to the learning, wellbeing and health and safety of the children. If you do
not train your mind to this dimension then you risk reducing parent choice through cancelling
this licence without good reason.
We argue that there should be consideration of the
public interest as this would have resulted in consideration of the negative impact on
the centre from the Ministry’s actions and the potential impact on parents and
children should cancel ation of the licence be the outcome.
The Ministry’s activities and undertakings relating to your investigation of Country Kindy was
too limited on your conditions and has yielded inconclusive evidence due to material failures
in your collection process. Your collection of evidence processes have demonstrated an
over-reliance on written evidence and your staff have consistently failed to make or record
observations from their visits to document actual practices at the centre. ECC agrees that
policies are important but on closer inspection, what really matters is what the practices
actually are in the centre. The Ministry should have access to this level of detailed
information now but appears not to have used it. ECC is of the view that the Ministry
decision making has failed to document and make sense of what these practices are. The
result is we do not have confidence that you would be correct to cancel this licence as the
service appears to us to be operating within the regulations.
In addition you imposed evidence collection restrictions with no lawful basis. You imposed a
physical evidence collection regime for no good reason. This deprived the service provider
from a more ef ective way to collect and transmit evidence to the Ministry, and keep track of
the numerous mistakes officials made in their collection and recording processes. The
service provider wanted to use Dropbox to transmit evidence. They are allowed to use this
method. That approach works for other Ministry offices – there appears no good reason why
the Taranaki, Whanganui, Manawatū office needed such a restriction.
Regulatory investigations cascade over a two-year time horizon which is inconsistent
with the statutory maximum limits in the regulations and the Ministry-contracted
SELO provider has contributed to fresh concerns
The Ministry’s intervention in the operations and associated compliance with the regulations
have been ongoing since 6 May 2022. This means the service provider has been under
constant Ministry scrutiny for a period of over two years. In the regulations a maximum time
period of 12 months is envisaged for conditions. Clearly the compliance time horizon has
covered a period of more than two years. It is grossly inappropriate that the Ministry has
undertaken investigations like this.
Professional development provided by a third party
under contract by the Ministry has
contributed or caused further alleged non-compliance concerns to arise. In this regard, the
Ministry needs to be mindful that you are considered, at least partially, responsible for
contributing to more concerns through the SELO provider’s actions. Complaints made by the
service provider about the SELO provider appear not to have been processed through the
Ministry’s complaints process.
Overview of remaining conditions
The Ministry agrees that 10 out of 17 conditions have been satisfied by the service provider.
The seven conditions alleged outstanding are mostly restatements of regulations. ECC notes
the lack of any regulatory concerns relating to adult-child ratios, safety checking and person
responsible. This is extremely positive.
The seven conditions do not appear to be drafted in the form of conditions so they do not
form enforceable conditions in every case. The conditions imposed include:
1. “A philosophy statement guides the service's operation”
– this is not enforceable
and is clearly compliant and has always been fully compliant
2. “An ongoing process of self-review and internal evaluation helps the service maintain
and improve the quality of its education and care”
– this is not enforceable and is
clearly compliant and has always been ful y compliant
3. “The service curriculum is consistent with any prescribed curriculum framework that
applies to the service”
– this is not enforceable and is clearly compliant and has
always been fully compliant
4. “The service curriculum is informed by assessment, planning, and evaluation
(documented and undocumented) that demonstrates an understanding of children’s
learning, their interests, whānau, and life contexts”
– this is not enforceable and is
clearly compliant and has always been ful y compliant
5. “Demonstrate that adults providing education and care engage in meaningful,
positive interactions to enhance children’s learning and nurture reciprocal
relationships”
– this is not enforceable and is clearly compliant and has always
been ful y compliant
6. “The practices of adults providing education and care demonstrate an understanding
of children’s learning and development, and knowledge of relevant theories and
practice in early childhood education”
– this is not enforceable and is clearly
compliant and has always been fully compliant
7. “Demonstrate by way of written evidence that the service is ef ectively governed and
is managed in accordance with good management practices and that appropriate
documentation and records are developed, maintained, and regularly reviewed. In
particular provide evidence that:
a. Demonstrate that the service has given regard to NELP.
b. Demonstrate the service implements a regular robust review/evaluation
process that ensures all aspects of the service including an appraisal process
and curriculum are reviewed and maintained.
c. Demonstrate that service has a process that ensures adequate professional
support, professional development opportunities, and resources are provided
to staff employed in the service”
– this is not enforceable and is clearly compliant and has always been
fully compliant
Difference between compliance concerns at one point in time historically compared to
the risk of concerns arising/repeating in the future Even if it was explained what caused the Ministry to effectively restate a selection of existing
regulations in conditions so the service provider could understand your concerns and how to
comply with them, ECC is not convinced that the Ministry understands that there is a
dif erence between concerns arising from historical/observable facts (which
can’t be
changed) and the ability of a service provider to change their approach to respond to those
concerns or incidents so that in the future the same concern is no longer present (which
can
be changed).
The service provider cannot change what actually happened in the past but they can
improve systems, policies and, most importantly, practices, so that non-compliance is less
likely to happen in the future. ECC is of the view that the service provider has addressed all
of the Ministry conditions by performing various actions they judged were sufficient. The final
assessment of whether or not the service provider has indeed satisfied the conditions should
involve consideration of whether future compliance has likely improved as a result and
whether that improvement is a satisfactory improvement level of improvement or not.
ECC asserts that the Ministry does NOT have strong evidence to be able to assert that in all
seven of the above conditions, the service provider has not performed reasonable actions to
address the conditions. In each case ECC is satisfied that they now take a significantly
dif erent or improved approach to how they would meet the relevant regulations in the future
(compared to concerns rooted in historical facts). Your assessments do not appear to
consider their corrective actions.
I think we can all agree that the service provider
has tried to satisfy all the conditions, so the
final test is whether or not those ef orts to satisfy your conditions have been effective and
whether they are satisfactory or not. If the Ministry thinks not, then why not? And what
evidence has the Ministry relied on to form its judgments.
ECC requests this information under the Official Information Act to enable our member
to consider its right to appeal should you choose to cancel the licence. ECC submits that the
Ministry should be guided by the principles of natural justice which include giving the
affected party access to the relevant information about your decisions – proactively, it should
not be necessary for ECC to request this information.
ECC is of the view, however, that there are no remaining issues of non-compliance of any
substance or material nature, so
a full licence should be reissued.
Considering that our member has fully cooperated with all of your conditions, we also must
comment on
the impact your intervention has had on the people working for Country
Kindy Ltd, the parent community and the children. The personal toll it has taken is
completely unrecognised by you and effectively dismissed. You do not appear alert to the
risk that you as regulator could harm children by removing access to ECE without good
cause. You have certainly failed to document their efforts.
Ministry has caused harm and should apologise
ECC considers that the burden the Ministry has placed on Fiona Zwart through
prolonged intervention has been harmful to her personal mental health. This burden
has affected others too and it has the potential to harm the children they care for indirectly.
Harm has been caused by the Ministry providing unclear conditions that are ostensibly
impossible to comply with and by running intervention processes over such long periods of
time (two years). It was unfair and you should apologise to her for it. Most people would
have given up a long time ago. While the ECE regulations require a focus on children, a
service provider is also an employer and they need to ensure the work remains safe
including to their personal mental health (refer Health & Safety At Work Act). It has not been
safe for Fiona’s mental health for a very long time.
Ministry conditions distracted the service provider from more effective solutions
ECC considers that the Ministry’s interventions have been a major distraction for the service
provider. They would have been better served (in our opinion) investing all the effort they put
into complying with your conditions into trying to address their teacher staffing situation
through a stronger focus on recruitment.
That single solution would have lifted compliance capabilities across the centre more
effectively than the blunt conditions imposed by the Ministry. More teacher-staffing would
have helped address the Ministry curriculum concerns as well, and reduced the unfair
burden placed on the service provider’s workers. None of the concerns with policies are
material and the lack of any regulatory concerns relating to adult-child ratios, safety checking
and person responsible is
extremely positive.
Ministry places an overly heavy emphasis on written policies and procedures while
ignoring actual practices which, had they been considered, would have demonstrated
performance of the condition You have relied
overly heavily on written evidence which ECC believes has been collected
selectively (showing bias). You have then interpreted the information (which is inherently
incomplete) out of context, introduced assumptions, and shown deliberate ignorance of the
actual practices being followed by Country Kindy workers.
It is not the case under the law that a centre’s policies and procedures have to be
documented in precise detail – the regulations give service providers a high degree of
autonomy.
Failures in policies are not material as service providers can change written policies
at any time
It is allowable for a service provider to update a policy to improve it or to respond to changes
in the centre environment at any time. There are no time constraints that inhibit a service
provider from undertaking a policy review as required. It is a form of entrapment for the
Ministry to believe writ en policies are non-compliant and to allow the service provider to
remain unaware for a period of up to two years. This does not put children first.
If this autonomy was not present then the administrative burden of constantly needing to
update written policies and procedures would cripple ECE operations. Staff would be
constantly in the office making edits to the vast array of policies they are expected to
administer.
No Ministry acknowledgement that the teacher staffing shortage makes compliance
more difficult
The teacher staffing shortage that affects most ECC members is also affecting Country
Kindy. This broader crisis contributes to placing additional pressure on the service provider.
ECC notes that the Ministry does not officially recognise the teacher shortage whereas
Immigration NZ recognises the shortage by including ECE teachers on the Green List. This
omission is a failure and it implies to the service provider that they are responsible for the
staffing shortage they are faced with.
ECC asked to represent Country Kindy and testimonials from the wider Country Kindy
community including parents and teachers
ECC
encloses the letter seeking representation we received from Country Kindy. It makes
for disturbing reading and you can see why ECC is seeking an apology for the harm you
have caused. We include the
community testimonials of support received. This evidence
speaks volumes and should remind you of your broader role to ensure access and enable
parent choice. Clearly this community does not want you to cancel the licence.
Conclusion
ECC considers that the long-running investigation of Country Kindy for no good reason and
with no clear focus should come to an end. The appropriate outcome is reinstatement of the
full licence, an apology for the harm caused, and flexible funding to assist the service
provider to meet advertising costs to help them to attract teachers to employ.
ECC intends to fight your decision if you decide to proceed with cancellation.
Nga mihi
9(2)(a)
Simon Laube
Chief Executive Of icer
