Early learning and childcare statutory guidance: consultation

Section 47: Duty to secure provision of early learning and childcare for eligible children.

25. Section 47(1) of the 2014 Act provides that each education authority must secure the statutory funded early learning and childcare entitlement for each eligible young child belonging to (i.e. residing in) its area. Where an education authority has responsibility for a child residing out-with the education authority area, e.g. for foster care, kinship care or additional support needs; the host authority is responsible for securing the statutory entitlement; including providing appropriate transport arrangements.

26. Under section 35 of the 2000 Act, an education authority can enter into arrangements with any persons to secure the statutory funded early learning and childcare entitlement for children under school age, i.e. early learning and childcare providers in the private and third sectors including childminders.

27. Education authorities may work with providers in the private and third sectors, including childminders, to secure all or part of a child’s funded early learning and childcare entitlement. As such, education authorities may enter into a section 35 arrangement with such a provider, regardless of whether or not the provider can deliver the full statutory entitlement of 1140 hours of funded early learning and childcare.

28. Section 47(2) of the 2014 Act provides that an eligible child is a child who is under school age and has not yet started primary school. In addition a child is eligible if they fall within subsection (3) which includes 2 year old children who are or have been looked after or under a kinship care order.

29. Under section 47(2)(c)(ii) of the 2014 Act, a child is also an eligible pre-school child if they are under school age and have not yet started primary school; and, is within such age range, or is of such other description, as Scottish Ministers may specify by order. This provides Scottish Ministers with the power to specify and expand eligibility through secondary legislation subject to affirmative procedure before the Scottish Parliament.

30. The 2014 Order, as amended (made under these powers) sets out further information on who is an ‘eligible child’, including which 2 year olds are eligible and the start dates for all children’s eligibility commencing.

Eligible 2 year olds

31. Eligibility for funded early learning and childcare entitlement for 2 year olds is set out in the 2014 Act (for looked after children, children in kinship care and those with a parent-appointed guardian) and in the 2014 Order.

Looked after children, kinship care and guardianship orders

32. Section 47(3) of the 2014 Act provides that any child who is aged 2 or over and is or has at any time since their second birthday been looked after^[8], subject of a kinship care order, or who has or has had a guardian by virtue of an appointment under section 7 of the 1995 Act (a parent-appointed guardian), should be considered an eligible child entitled to funded early learning and childcare. As such, they remain eligible for the full funded early learning and childcare entitlement regardless of whether they remain looked after or not. Further detail on 2 year olds who are looked after, including arrangements to meet wellbeing needs, is outlined in this document in the guidance on section 49 of the 2014 Act.

33. Under section 47(4) of the 2014 Act, Scottish Ministers can specify that the children defined as eligible under section 47(3) of the 2014 Act (those who were entitled as 2 year olds where they were looked after, under a kinship care order, or with a parent appointed guardian) are no longer entitled to funded early learning and childcare once they reach school starting age. The 2014 Order^[9] makes the same provision for stopping those children from receiving funded early learning and childcare as for all other children.

Parents in receipt of qualifying benefits

34. Under the 2014 Order, 2 year olds from households where a parent or carer is in receipt of certain benefits will be eligible from the first term after their second birthday; or, the first term after the parent or carer starts receiving those benefits. Those 2 year olds will remain entitled to funded early learning and childcare regardless of whether the parent or carer in their household remains on those benefits or not.

35. All 2 year olds who have gained eligibility will remain eligible, even where a parent or carer’s circumstances change from the initial qualifying criteria, until their stopping date in relation to starting school.

36. As the 2014 Order may be subject to further amendments, a list of the current eligibility criteria can be found at: https://www.mygov.scot/childcare-costs-help/funded-early-learning-and-childcare/.

37. As uptake of the funded early learning and childcare entitlement is not compulsory, and depends upon parents or carers taking up a place for their child, education authorities and all agencies and services working with families have a crucial role in identifying eligible families and promoting the entitlement.

Starting and stopping dates for eligibility

38. Section 47(2)(c)(ii) and (4) of the 2014 Act gives Scottish Ministers the power to specify and expand eligibility for funded early learning and childcare through secondary legislation subject to affirmative procedure before the Scottish Parliament. The 2014 Order therefore specifies when eligibility for funded early learning and childcare starts and stops.

39. Starting and stopping dates for funded early learning and childcare depend on the date of the child’s birthday, local school term dates and, where relevant, whether the parent or carer has chosen to defer the child’s start at primary school for a year.

40. In terms of starting dates, under the 2014 Order, eligible 2 year olds and all 3 year olds will be eligible for funded early learning and childcare from the beginning of the first term after the child’s 2^nd or 3^rd birthday, as set out in the following table:

Where a child’s birthday falls on or between the following dates:	The child will become eligible from the terms set out below:
1 March – 31 August	August (autumn term) occurring in that year
1 September – 31 December	January (spring term) following their birthday
1 January – last day February	March/ April (summer term) following their birthday

41. Stopping dates under the 2014 Order are summarised as follows:

Where a child’s birthday falls on or between the following dates:	Stopping funded early learning and childcare and starting school:	Eligibility for funded early learning and childcare when deferring school entry:
1 March – the school commencement date[10] in August	Children’s entitlement to funded early learning and childcare stops from the August (autumn term) in the year they turn 5, at which point they will start school.	As these children will be 5 years old on the school commencement date, parents and carers cannot defer entry to school.
After the school commencement date in August – 31 December	Children’s entitlement to funded early learning and childcare stops from the August (autumn term) in the year they turn 5, at which point they can start school or parents and carers can defer their child’s entry to school to the August (autumn term) of the following year.	Children’s entitlement to funded early learning and childcare has ceased but parents and carers can request that the education authority provide an additional year of funded early learning and childcare using their discretionary power under section 1(1C) of the 1980 Act.
1 January – last day February	Children’s entitlement to funded early learning and childcare stops from the August (autumn term) in the year they turn 5. Children can start school in the August (autumn term) before they turn 5, or parents and carers can defer their entry to school until the August (autumn term) after they turn 5.	Children’s entitlement to funded early learning and childcare continues to the August in the year of their 5th birthday so they are still entitled to funded early learning and childcare if they defer school entry.

42. Education authorities who wish to offer funded early learning and childcare to children who are not an ‘eligible child’ can do so using their discretionary powers under section 1(1C) of the 1980 Act. For example, some education authorities use these powers to provide access before the statutory ‘start date’ or after the ‘stopping date’; or to widen local eligibility criteria for 2 year old children, beyond the statutory eligibility criteria.

43. A number of education authorities use these discretionary powers to provide funded early learning and childcare to 3 year olds from their 3^rd birthday, from the month after their 3^rd birthday, or to certain children before they are 3 years old. Arrangements to commence closer to the child’s 3^rd birthday are encouraged.

44. Powers under section 1(1C) of the 1980 Act also allow education authorities to provide an additional year of funded early learning and childcare to children born after the beginning of the autumn term, in August, and before 1 January whose parent or carer has chosen to defer the child’s start at primary school for a year.

Deferred school entry and eligibility

45. The school year starts in August, with any single school year group usually consisting of children born between the beginning of March in one year and the end of February the following year. School age is defined in sections 31 and 32 of the 1980 Act^[11]. Parents and carers of children that are still 4 years old on the date they are eligible to start school can defer their child’s start at primary school for a year.

46. When a parent or carer has chosen to defer their child’s primary school start for a year, a child’s entitlement to funded early learning and childcare depends on their date of birth. If a child’s entry to school is deferred for a year:

a) they will automatically get an additional year of funded early learning and childcare if their 5^th birthday is in January or February; or

b) parents and carers can apply to their education authority and request an additional year of funded early learning and childcare if the child’s 5^th birthday is after the beginning of the autumn term, in August, and before 1 January. The education authority will decide if the child is eligible for an additional year of funded early learning and childcare.

47. Parents and carers are entitled to defer their child’s entry to school for a year regardless of whether they are eligible for funded early learning and childcare.

48. Education authorities will have their own local procedures, guidelines and policies on using their discretionary power under section 1(1C) of the 1980 Act to provide an additional year of funded early learning and childcare for August to December born children whose school entry is deferred. These decisions should be based on an assessment of wellbeing, putting the child at the centre and working in partnership with families.

49. Good quality and transparent decision making will involve a holistic assessment of the 8 wellbeing indicators (safe, healthy, achieving, nurtured, active, respected, responsible, and included). The GIRFEC National Practice Model^[12] (including the My World Triangle and the Resilience Matrix^[13]) provides a consistent way for education authorities to assess, understand and define the needs of the child, in partnership with their family and with advice from relevant professionals; and to record the outcomes of that assessment. In some cases, that assessment and analysis will lead to the development of a Child’s Plan.

50. Education authorities’ decisions about the provision of discretionary funded early learning and childcare should be separate from their considerations about children’s additional support needs and the support that they may need. In relation to children with additional support needs (including those children with additional support needs arising from a disability within the meaning of the Equality Act 2010 (“the 2010 Act”)), it is important that professionals and parents and carers understand that children with additional support needs will be supported through the 2004 Act. Further information is outlined in this document in the guidance on section 50 of the 2014 Act.

51. Education authorities should consider how they ensure local policies and procedures are accessible for all parents and carers, and can be easily understood, so that parents and carers clearly understand how to request that their education authority provide discretionary funded early learning and childcare to their child using their powers under section 1(1C) of the 1980 Act. Education authorities may also wish to consider how they can involve parents and carers from the beginning of key decision making processes, ensuring that when a final decision is reached they provide parents and carers with a clear explanation of how and why the decision was taken. The Scottish Schools (Parental Involvement) Act 2006 (the 2006 Act) places duties on education authorities and schools to involve parents and carers in their child’s education, and this includes children attending nursery classes in a public school. Information on these duties can be found in the 2006 Act Statutory Guidance^[14].

52. Good quality communication is central to building strong relationships with parents and carers. It is also one of the key goals in the Scottish Government’s ‘Learning Together’ Action Plan^[15], a joint three year plan for 2018-21 between Scottish Government and COSLA. The main focus of the plan is on ensuring parents and carers get the support and information they need in appropriate formats and at the right times to support, and be fully involved and engaged with, their children’s learning.

53. Education authorities should consider how they make parents and carers aware of the deferral process; the support children will receive when transitioning to school; and any appeals or complaints processes. Education authorities should consider the variety of methods and approaches they can employ to ensure they are engaging parents and carers in an ongoing dialogue, recognising that a ‘one size fits all’ approach may not be appropriate for all parents and carers, and responding to feedback. Parents and carers are often balancing competing demands for their time and education authorities should consider how they can provide parents and carers with information with sufficient time, in advance of key deadlines, to allow parents to respond effectively. The timing of communication, particularly involving decisions on individual cases, is also key in allowing families and settings to plan transitions or make other arrangements.

54. When children do make the transition from early learning and childcare to primary school, Curriculum for Excellence provides a framework to ensure children are supported in an appropriate way. The Curriculum for Excellence Early Level begins at age 3, when most children will be in a range of early learning and childcare settings, and continues throughout their transition into a school setting and the early primary years.

55. All children and young people have an entitlement to a curriculum which they experience as a coherent whole, with smooth and well-paced progression through the experiences and outcomes, particularly when they transition between different settings, for example from early learning and childcare to primary. Those planning the curriculum have a responsibility to plan, in partnership with others involved in learning, how they will jointly enable children to move smoothly between settings, building on prior learning and achievement in a manner appropriate to the needs of the individual. Guidance on supporting transitions is included in National Practice Guidance on Early Learning and Childcare: Building the Ambition^[16], that builds on the current national framework of Curriculum for Excellence.