The Education (Hostels) Regulations 2005: Guidelines
All hostels that fit the definition of ‘hostel’ in the Education and Training Act and the regulations, and their owners, must comply with the regulations.
The definition covers a wide range of boarding establishments – for example:
- residential specialist schools
- health camps
- hostels operated by state and state integrated schools,
- private hostels serving groups of international students attending registered schools.
It does not, however, cover private boarding where a homeowner provides accommodation to less than five students. Nor does it cover boarding when students attending a registered school are not the main group of people being accommodated.
These guidelines provide further explanation and should be read in association with the regulations. The headings correlate to the relevant parts and requirements of the regulations to make it easy to read the two together.
Part 2: Licensing provisions
This part of the regulations covers prohibitions relating to boarding at unlicensed hostels, licensing processes, formal directions to eliminate non-compliance, and suspension and cancellation of licences.
Prohibitions related to unlicensed hostels
The regulations are clear that students may not board at unlicensed hostels (as defined by the regulations) and, if they do, there will be no payment of bursaries or other government subsidies for the cost of boarding for those students or hostels. This is because it would not be appropriate for government to subsidise students or hostels that do not comply with the regulations.
Applications for licences
Who may apply and how
The regulations require the licence application to be lodged by, or on behalf of, the hostel ‘owner’ (as defined by the regulations) on a form provided by the Authority. Application forms and checklists may be obtained from the Ministry of Education, Education (Hostels) Licence Administrator.
In developing the regulations it was recognised that hostel owners will include an individual person, a partnership involving a number of people (unincorporated), or a body corporate. Bodies corporate represent groups of people who choose to incorporate under different statutes such as the Companies Act, Incorporated Societies Act or the Charitable Trusts Act to establish a separate legal identity from its individual members.
The Ministry is also aware that some state school boards of trustees have delegated to management sub-committees, or have established and appointed other bodies corporate (such as trust boards), to govern and manage hostels separately from the board governing the school. Anecdotal reports indicate that a majority of school hostels have governance and management arrangements that are separate in this way.
Because supporting documents, a signed statutory declaration, and payment are required with your Licence application it must be either posted or otherwise delivered directly to the Licence Administrator (see page 5 for postal and address details).
Floor plan and site plan required
The floor plan and site plan required by the regulations to accompany your licence application must be clear, up-to-date, and to scale. The plans are very important as they are a record of the configuration of the licensed hostel premises. Plans might also be used by the Authority to inform decisions about whether to set special licence conditions (see regulation 24 for examples).
Depending on the age of your hostel, copies of plans held by the relevant building consent authority (City or District Council) may be suitable. However plans for licence application purposes do not need to be of the standard required for a building consent as long as they are drawn to scale.
The Authority will not require plans to be resubmitted if you are applying for a licence renewal, provided there have been no changes to the premises since the previous licence or renewal application was made.
Other information required
The regulations require applicants to provide a range of information about the hostel facilities and operations, and about the hostel owner. This helps to determine whether to grant or renew a licence and whether to impose any conditions.
As well as the specific requirements in the regulations, the application form and the associated checklist give a good indication of the type of information needed and the level of detail that you should provide. For example, information about any distinctive operating style, number of boarders of different classes (such as by year level or male/female ratios), months/days/hours of operation (5-day, 7-day, or provision for casual boarding), hostel staff, and any special needs of the boarders the hostel intends to cater for should be provided.
You will need to work through the requirements of the regulations and produce information showing there is good reason to believe the hostel and/or you, as the hostel owner, comply in all respects with all the relevant requirements.
The task may not be as daunting as it sounds. A great deal of general information may already be available (for example, hostel marketing materials, or written policies and procedures) and can be submitted to the Authority as they are.
The Authority may also consider the findings of a recent ERO report. Where this report has raised issues relating to the premises and facilities or hostel management, evidence that these issues have been addressed will be required with the application.
To avoid processing delays, provide as much relevant information as possible. Information that is clearly written and easily read and copied is of greatest value to the Authority. If you are providing information from hostel publications make sure you index and cross reference them on the application form.
In recognition of the different composition and requirements of bodies corporate, the requirements for assessing ‘fit and proper’ applies to the directors and persons involved in management of the body corporate. In confirming ‘fit and proper’ status, it is prudent for applicants to have a documented procedure for checking the suitability of directors or managers of a body corporate. For example, requiring prospective directors and managers to complete declarations stating they meet the regulatory requirements to be a ‘fit and proper person’.
The Criminal Records (Clean Slate) Act 2004 allows for people with less serious convictions, who have been conviction-free for seven years, and who meet the eligibility criteria to be deemed to be conviction-free. However, section 19(3)(e) of the Act (see below) also provides an exception for individuals who apply to act in a role predominantly involving the care and protection of children or young people and so all convictions must be declared.
Grant or renewal of licenses
Hostels operating immediately before 1 March 2006 are deemed to be a licensed hostel. This transitional licensing will last for 12 months within which time the hostel owner will need to make a full licence application. The regulations also have a provision allowing the Authority to require an owner to make an application within three months of being formally requested (see regulation 72).
Authority may grant or renew licences
The regulations put the onus on the applicant to provide enough information to enable the Authority to issue a licence. The Authority may grant or renew a licence, with or without special conditions, for a period of three years.
Before issuing the licence the Authority must be satisfied by the information it receives from the applicant (and from any other source) that the hostel, its management practices, and the owner, comply with the requirements of the regulations, and that the prescribed fee has been paid.
Applications in respect of different premises
Each licence can only relate to one hostel. The regulations enable the Authority to decide whether hostel premises comprise one or more hostels and if separate licences are required, and provide some criteria on this. For example, the Authority may issue a single hostel licence where hostel buildings on two different sites are used to accommodate junior and senior students separately but the management, staff and funding arrangements are shared.
Applications for renewal licences
Who may apply to renew a licence and how
The regulations require the licence renewal application to be lodged by, or on behalf of, the hostel ‘licensee’ (as defined by the regulations) on the application form provided by the Authority no later than 20 working days before the licence expires.
Special renewal applications are also required if there is a significant proposed change to the hostel operations, alterations are proposed to hostel buildings, or a new owner proposes to take over the hostel (see below).
As with the initial licence application, the renewal application form and the checklist developed by the Ministry give a good indication of the type of information needed and the level of detail you need to provide.
You should keep copies of your original licence application and all renewal applications to make it easier when you need to renew the licence because most of the information won’t change from one renewal to the next. Because supporting documents, a signed statutory declaration, and payment are required with your renewal application, it must be either posted or otherwise delivered directly to the Licence Administrator (see page 5 for postal and address details).
Authority may permit applications to be lodged late
You will be sent renewal reminders but it’s up to you to ensure your renewal application is made in time. You should begin the renewal process early.
The Authority may accept a late renewal application if it is made before the licence expires. The Authority will expect a written explanation for a late application to be submitted alongside the application.
If a licence expires without renewal the hostel becomes ‘unlicensed’ and the prohibitions referred to in the regulations will apply until a new licence is issued. A new licence application fee also applies instead of the lower renewal application fee.
Renewal required if premises or operations to change
The regulations require a renewal application to amend your licence if you want to make changes that affect the conditions of the licence, or make the hostel’s premises or operations significantly different from when the licence was granted or renewed. The renewal application must be made before changes take effect.
When this renewal requirement applies will be a matter of judgement by you and the Authority. Some examples of when it is likely to apply are:
- increasing the maximum number or specified class (for example, by age, sex or special needs) of boarders accommodated
- substantial physical alteration to the premises and/or changes to what the hostel premises are used for
- changing from 5-day boarding to 7-day boarding.
The information you provide with your renewal application must be explicit about the changes and if making physical alterations up-to-date scale plans will be required.
Renewal required if owner of hostel to change
The regulations require a renewal application to amend the licence if ownership of a hostel is to change. The renewal application must be made before the change takes place.
As indicated on the renewal application form, information will be required to satisfy the Authority that the new owner is a fit and proper person. You must allow sufficient time to gather and submit this information before a change of ownership takes place. Hostel sale and purchase agreements may need to be subject to the new owner being granted a licence.
Extent, content, form and conditions of licences
The regulations are very clear about the extent, content and form of licences, licence conditions and notices.
The licence will include a condition specifying the maximum permitted number of boarders that may be accommodated. You should suggest a maximum number for your hostel in your licence application and provide justification for the number. The Authority will consider the information, and other relevant guidelines, such as those relating to the numbers of people permitted to sleep in a bedroom (see the table under ‘sleeping’ on page 21).
The imposition of other special conditions is at the discretion of the Authority.
Notice of new directors etc of body corporate licensee
The hostel owner is required to give the Authority written notice when new directors or managers of a body corporate are appointed. An appropriate form for the notice is available from the Authority. The Authority will need to be satisfied that any new director or manager is a fit and proper person.
Formal directions to licensee to eliminate non-compliance
The content of the regulations on formal directions is largely self-explanatory. It includes matters relating to deadlines for eliminating non-compliance, the licensee being required to display a formal direction, and the conditions under which a direction may be revoked.
Enforcement of the regulations is a logical and necessary extension of administering the regulations. Many decisions made by the Authority about enforcement actions are likely to be substantially informed by the independent review and assurance activities of ERO.
ERO review activities include visits to hostels and reports on the physical and emotional environments in those premises. It is expected that there will be a regular cycle of reviews, (on average at least once every three years), and, as appropriate, in response to information indicating that a hostel is not meeting the requirements of the regulations. ERO review reports should be provided to you as the hostel owner.
As with other ERO reviews, good practice would be identified and any concerns highlighted. Where concerns were relatively minor ERO would generally indicate, informally, a time period and process for follow-up for the concern to be remedied. Where there were serious safety concerns ERO could notify Police or other relevant authorities (including the Authority) and could, where applicable, undertake a supplementary review.
The Authority will also appoint ‘authorised persons’ under the Education and Training Act with powers to enter and inspect hostels and hostel documentation. Compared to ERO review and assurance activities, licensing body inspections should be relatively infrequent and would largely relate to safety concerns outside the ‘supporting learning’ ambit of ERO, or as follow-up to licensing and other enforcement activities.
Education and Training Act 2020 Section 631 Inspection of hostels
(1) An authorised person may at any reasonable time do any or all of the following:
(a) enter any hostel premises and inspect the premises and facilities:
(b) inspect, and make and remove copies of, any information relating to the management of the hostel:
(c) require any person at a hostel to make or provide statements, in whatever form or manner is reasonable in the circumstances, about any matter relating to the safety of students who board at the hostel.
(2) An authorised person may exercise the powers in subsection (1) only for the purpose of monitoring compliance with minimum standards, codes of practice, licences, or licence conditions.
(3) The person in charge (or apparent charge) of the hostel must, if an authorised person requests it, co- operate in allowing the authorised person access to the premises, facilities, and information relating to the management of the hostel, including assisting the authorised person to copy (in usable form) any information required for the inspection.
(4) The person in charge (or apparent charge) of a hostel commits an offence and is liable upon summary conviction to a fine not exceeding $5,000 if he or she fails, without reasonable excuse, to comply with subsection (3).
(5) An authorised person may not enter or inspect the room or sleeping area of a student accommodated at the hostel unless—
(a) the authorised person believes on reasonable grounds that entry or inspection is necessary for a purpose specified in subsection (2); and
(b) prior notice of the inspection is given to the student, and the purpose of the inspection is explained; and
(c) the student is present during the inspection.
Depending on the circumstances, enforcement action by the Authority could commence with an informal written ‘notice to remedy’ detailing the safety concerns, recommended remedial actions and a timeframe for completion. If the response to this informal approach is not satisfactory, it is likely the Authority would issue a formal direction, and inspections would be done to check safety concerns had been addressed.
Enforcement action would not be taken arbitrarily and, wherever practicable, would always involve prior consultation with you. For example, if the non-compliance relates to the lack of provision of facilities, the Authority would probably allow time for these facilities to be designed and constructed including time to find appropriate contractors. If it related to a more straight forward matter, like the development of an appropriate written policy, a shorter time would probably be allowed.
There is a right of appeal against Authority decisions to the District Court (see page 32).
Suspension and cancellation of licences
The content of the regulations for suspension and cancellation of licences is largely self-explanatory. The content includes matters relating to:
- suspension and cancellation of a licence being effected by written notice to the licensee
- suspension notices specifying conditions to be complied with
- the return of suspended and cancelled licences to the Authority
- revocation of suspension
- the duties of the licensee when a licence suspension or cancellation takes effect.
Where a hostel fails to address serious safety concerns, or risk to student safety is such that an immediate remedy is needed, the regulations provide for suspension or cancellation of the hostel licence. The Authority might also initiate a prosecution for any offences committed (see page 32).
Enforcement actions are not undertaken lightly. Only in extreme circumstances would enforcement action occur without warning. For example, if the issues related to infectious disease concerns, the Authority would almost certainly have taken appropriate advice from health authorities before enforcing the closure of a hostel. In emergency situations, such as severe flooding damaging a hostel’s water treatment or sewerage plant, it is expected that hostels would close voluntarily.
Temporary or permanent closure of a hostel, owing to suspension or cancellation of a licence, could have a significant impact on the viability of schools as well as the hostel business (for example, where a large proportion of a school’s students are boarders and there is limited alternative accommodation near the school). It is likely that, with your prior consent, the Authority would consult with the governing body of any school it considers may be significantly affected by suspension or cancellation of a hostel licence. This would give the schools the opportunity to contribute to the resolution of safety concerns in the hostel.
Before cancelling a licence the Authority must take ‘all reasonably practicable steps’ to advise you it intends to cancel the licence. While these steps are not specified they may include verbal advice (including by phone) or written advice (including by fax, email or mail). The Authority must also take into account all representations made ‘within a reasonable time’ after you have been advised of the intention to cancel the licence. ‘Reasonable time’ is not defined in the regulations but is likely to be a relatively short period (hours or days, rather than weeks or months).
The Authority may also cancel a licence at your request or if satisfied the hostel has ceased operations and appears unlikely to operate again under the licence. For example, where a hostel has burned down and the owner has confirmed that they do not intend to rebuild.
Replacement licences and fees
The regulations require the licence to be displayed at the hostel. There is a fee for replacing a licence, so you should take to ensure it is not lost, stolen or defaced. If a licence contains errors, the hostel owner should notify the Authority in writing and a replacement licence will be provided.