Early learning and childcare statutory guidance: consultation

Section 50: Duty to consult and plan on delivery of early learning and childcare

Under section 50(1)(a) of the 2014 Act, education authorities must consult with persons who appear to be representative of parents and carers of children under school age in their area about how they should make early learning and childcare available. This consultation must be carried out at least once every 2 years.

Under Section 50(1)(b) of the 2014 Act education authorities must have regard to the views expressed in the consultation and must prepare and publish a plan setting out how they intend to make early learning and childcare available.

Undertaking the consultation

74. Consultation on the delivery of early learning and childcare should provide an opportunity for parents and carers to share their views on models, flexibility and systems of choice so that parents can inform options on offer and education authorities can develop systems to allocate options. The aim is to deliver high quality early learning and childcare that meets a range of needs.

75. Education authorities are required to consult with representative samples of their local population. However this does not mean that education authorities will be required to ask every current or prospective parent of a child eligible for the funded early learning and childcare entitlement about their individual choice of setting or pattern of hours.

76. Education authorities are encouraged to use embedded good practice in how they consult^[21], ensuring that they consult on a wide scope of needs, rather than a closed set of options. Education authorities should use this opportunity to encourage broad, open and transparent dialogue with parents and carers.

77. To ensure that consultations are representative and inclusive, education authorities should use a range of consultative methods to engage a wide range of parents and carers including:

• Working parents/carers
• Minority ethnic families
• Parents/carers residing in rural areas
• Parents/carers from the gypsy traveller community
• Parents/carers who are less likely to engage with statutory services
• Parents/carers with lived experience of poverty and disadvantage
• Parents/carers of children with a disability or additional support needs
• Parents/carers with a disability or additional support needs
• Corporate parents
• Parents/carers seeking Gaelic medium education
• Parents/carers who live in communities where provision is limited

78. It is also recognised that there are increased barriers that families in rural areas face in accessing early learning and childcare. Education authorities in rural areas should engage with parents and carers, providers offering the funded early learning and childcare entitlement, and communities to explore all funding and support options to ensure high quality funded early learning and childcare is accessible for families. This may include encouraging and developing innovative and/or community-led provision of funded early learning and childcare. In addition, under section 7(1) of the Islands (Scotland) Act 2018, education authorities which are relevant authorities in terms of the schedule of that Act should have regard to island communities in carrying out their functions.

79. It is important to consult with parents and carers who have children currently using provision (including those who use the funded early learning and childcare entitlement only, and those who purchase additional unfunded provision); as well as those with younger children who will use provision over the next few years. Education authorities should consult with parents and carers accessing their child’s entitlement in a range of settings across the public, private and third sector, including childminders. Education authorities may also find it useful to consult parents and carers whose children received the funded early learning and childcare entitlement, but are now at early school age. These parents and carers may be able to offer a retrospective view that provides insight into past parental experiences of accessing the entitlement, and the outcomes of that provision.

80. When education authorities are consulting on the delivery of early learning and childcare and preparing their plans in response to these views, they must assess the impact on persons with ‘protected characteristics’ (defined under the Equality Act 2010 as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) and consider how to reduce inequalities of outcome as a result of socio-economic disadvantage^[22].

81. The duty to consult under the 2014 Act should provide useful evidence to help education authorities meet their duties under the Equality Act 2010^[23] and section 3B of the 2000 Act and inform local impact assessments. When consulting on the delivery of early learning and childcare, it is therefore important that education authorities engage directly with persons with ‘protected characteristics’ and persons with lived experience of poverty and socio-economic disadvantage.

Frequency of consultation

82. Education authorities are under a duty to carry out a consultation on the delivery of early learning and childcare at least once every two years.

83. The aim of requiring consultation every two years is to ensure that services are regularly taking into account local needs, recognising that the children and families accessing early learning and childcare will be changing year on year.

84. Section 50 (2) of the 2014 Act gives Scottish Ministers the power to vary the frequency of that consultation by order subject to affirmative procedure.

Preparing and publishing a plan on early learning and childcare delivery

85. Education authorities are under a duty to publish their plan for the delivery of early learning and childcare. These plans should set out the comprehensive strategic direction for the delivery of early learning and childcare in their local area, respond to local need and will reflect the diversity of communities that education authorities cover.

86. Under section 50 (1)(b) of the 2014 Act education authorities must have regard to the views expressed in consultation as described above, before preparing the plan. Education authorities should ensure that the final consultation results can be easily accessed.

87. In preparing their plans for the delivery of early learning and childcare, education authorities should be clear about the need for delivery to be manageable and affordable within their resources.

88. Ongoing engagement with the early years workforce across all early learning and childcare sectors will be a necessary part of the planning process and service design.

89. In publishing their plans, education authorities should consider how they can make this information readily accessible for parents and carers within their local area.

90. 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(2), a joint three year plan 2018-21 between Scottish Government and COSLA. Many of the actions within the plan focus on ensuring parents and carers get the support and information they need in appropriate formats and at the right times. 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.

91. National and local government both have a role to play in making sure parents can make informed choices about their child’s entitlement. In addition to formal consultation there is a need to provide clear information for parents and carers on the provision of funded early learning and childcare entitlement at national and local levels. Education authorities should consider how they make parents and carers aware of their child’s entitlement, of the range of provision available, and how to access this.

Additional Support Needs

Education authorities have duties under the Education (Additional Support for Learning) (Scotland) Act 2004 and should have regard to this when providing funded early learning and childcare to eligible children with additional support needs

92. Children and young people will progress differently, depending on their circumstances, but every child and young person has the right^[24] to expect appropriate support from adults to allow them to develop as fully as possible across each of the wellbeing indicators and curricular areas. Education authorities should seek to engage with parents and carers with children who are disabled or have other additional support needs as part of their duty to consult under Section 50 of the 2014 Act.

93. Section 1(1) of the 2004 Act explains that a child or young person has additional support needs where, for whatever reason, they are likely to be unable, without the provision of additional support, to benefit from school education. Education includes the provision of early learning and childcare. Education authorities are required to have regard to the 2004 Act for any eligible young child entitled to the funded early learning and childcare entitlement with additional support needs.

94. Statutory Guidance on the 2004 Act is contained in the Code of Practice on Additional Support for Learning (ASL Code of Practice).^[25]

95. Education authorities and other agencies (including NHS boards^[26]) have a wide range of duties under the 2004 Act, meaning they are required to identify, provide for, and monitor, the additional support needs of their children and young people. In addition, authorities have duties to plan for transitions, to consider placing requests, and to establish co-ordinated support plans, where appropriate. Full details of the responsibilities on education authorities and other agencies can be found in Chapter 1 of the ASL Code of Practice^[27] which supports implementation of the 2004 Act.

96. Following identification of additional support needs, a plan should be established as to how those needs will be met, and reviewed. The National Practice Model, part of the GIRFEC approach, is well established good practice and provides a consistent framework for practitioners across all services to plan for children’s wellbeing. Where a Co-ordinated Support Plan is required, this should form part of the Child’s Plan as outlined in the ASL Code of Practice. Education authorities duties to plan for the transition into and from early learning and childcare will also be of relevance for this group of children.

97. A key issue for young children with additional support needs is the early identification of those needs. A Universal Health Visiting Pathway for Scotland was published in October 2015 http://www.gov.scot/Publications/2015/10/9697. The refreshed Health Visiting Pathway presents a core home visiting programme to be offered to all families by health visitors as a minimum standard.

98. The provisions of the 2004 Act apply to looked after 2 year olds. Under section 1(1A) of the 2004 Act a looked after child is deemed to have additional support needs unless or until they are assessed otherwise. This assessment should also include an assessment as to whether a co-ordinated support plan is required.

99. The 2004 Act duties will apply when a child becomes eligible for funded early learning and childcare and so will apply to eligible 2 year olds who are subject to a kinship care order or with a parent appointed guardian or whose parents are in receipt of certain benefits. In relation to those subject to a kinship care order, carers (like any carer or parent) can request that the additional support needs of the child be assessed and this can include a specific type of assessment.

100. In certain circumstances the duties under the 2004 Act will apply earlier. The 2004 Act imposes a duty on an education authority to provide appropriate additional support for certain disabled children under school age^[28] before entitlement to the mandatory amount of early learning and childcare; potentially from birth and generally before the age at which children become eligible for early learning and childcare, where this need is identified^[29].

101. Under the Equality Act 2010 responsible bodies have a duty to make reasonable adjustments for disabled young children and provide auxiliary aids and services to avoid substantial disadvantage.^[30]

102. Further, under the Education (Disability Strategies and Pupil Educational Records (Scotland) Act 2002^[31] responsible bodies have duties to develop and publish accessibility strategies to increase access to the curriculum, the physical environment, and communication.

103. A summary of the overlap between the Equality Act 2010 and the 2004 Act definitions of children and young people is attached at Annex B.

104. Under the 2004 Act parents and carers can make a placing request for early learning and childcare in relation to a child with additional support needs either within the authority they reside (home authority) or another education authority (host authority) area^[32].

105. Where a placing request is successful, the home authority is responsible for the costs of early learning and childcare. They may also provide free transport to the host authority, but are not under a duty to do so. The host authority is therefore not responsible for the costs of the placement or any associated transport. It is therefore essential to confirm transport arrangements with parents to inform their placing request.

106. Information for parents and carers about all of the provisions of the 2004 Act is available in the Enquire guide.