Early learning and childcare statutory guidance: consultation

Section 48: Mandatory amount of early learning and childcare

Education authorities are required to secure 1140 hours of funded early learning and childcare for eligible children in each year and a pro rata amount for each part of a year.

56. Under section 47(1) of the 2014 Act, an education authority must ensure that the statutory amount of funded early learning and childcare entitlement is made available for each eligible child belonging to its area.

57. Section 48 of the 2014 Act provides the statutory entitlement as 1140 hours of funded early learning and childcare in each year and a pro-rata amount for each part of a year of which a child is eligible.^[17] The starting point for the year is in-line with the school year, which is dependent on local authority term dates, and usually a date in August.

58. The legislation refers to the ‘mandatory amount of early learning and childcare’, however to avoid confusion this is referred to as the funded early learning and child entitlement in this guidance. This is to make clear that this is an entitlement for children but that it is not compulsory for parents to take up all, or any, of their child’s funded early learning and childcare entitlement.

59. Section 48(2) of the 2014 Act enables Scottish Ministers to change the amount of the funded early learning and childcare entitlement. Such an order would be subject to affirmative procedure by virtue of section 99(2) of the 2014 Act and in terms of Section 48(3) of the 2014 Act enables Scottish Ministers to make different provision for different types of eligible children, for example, different number of hours for children of different ages.

Funded early learning and childcare entitlement delivered without the payment of fees

60. Under section 33(1) of the 2000 Act, the entitlement to funded early learning and childcare must be provided without the payment of fees, including where this is delivered through a third party (i.e. providers in the private and third sectors, including childminders), under a section 35 arrangement. This means that:

• parents and carers are not asked to make any upfront payment, including a deposit or any other payment, in respect of the funded early learning and childcare entitlement;
• no top-up fees are charged to parents and carers relating to the funded early learning and childcare entitlement; and
• parents and carers are not required to purchase additional hours beyond the funded early learning and childcare entitlement in order to access their child’s funded early learning and childcare entitlement.

Charges for optional extras

61. Any charges which are in addition to the funded early learning and childcare entitlement should be for optional extras, and limited to, for example, snacks, costs of outings or extracurricular activities. These optional charges include where a setting offers an additional optional service such as the provision of localised cover arrangements required by parents and carers (for example acting as the emergency contact for a child, cover for shift patterns, holiday cover, etc) which requires the setting to retain a place in order to meet this demand during the hours that the child is receiving part of their funded early learning and childcare entitlement at another setting as part of a split placement.

62. It is expected that where parents and carers choose to purchase further hours, or optional additional services, in addition to the funded early learning and childcare entitlement, the associated fees and hours will be transparent and clearly set out in any parental communication and invoices.

Provision of additional early learning and childcare

63. Under section 1(1C) of the 1980 Act, education authorities have discretionary powers to provide early learning and childcare beyond the statutory funded early learning and childcare entitlement requirements under section 1(1) and (1A) of the 1980 Act and section 47(1) of the 2014 Act (i.e. the funded early learning and childcare entitlement). This can enable education authorities to prioritise certain children who would benefit most from such provision.

64. Education authorities are also, under section 33(2) of the 2000 Act empowered to charge fees for such discretionary early learning and childcare. The provision of discretionary early learning and childcare, through fees subsidised or otherwise, can provide additional flexibility. Any education authority fees for parents for discretionary early learning and childcare should be transparent.

65. Where education authorities charge for discretionary early learning and childcare, as part of their overall approach to setting charges for discretionary services, it is expected that they give appropriate consideration to the potential impacts on the competitiveness and business sustainability of other providers offering the funded early learning and childcare entitlement.

66. Under section 27 of the 1995 Act, there is also a duty on education authorities to provide any form of care, whether or not on a regular basis for children under 5 who are not in school and in need, and discretion to provide any form of care to those who are not in need.^[18]