Early learning and childcare statutory guidance: consultation

Section 52: Flexibility in the way in which early learning and childcare is made available

Education authorities must have regard to the desirability of ensuring that the method by which it makes early learning and childcare available is flexible enough to allow parents an appropriate degree of choice when deciding how to access the service.

120. The purpose of section 52 of the 2014 Act is to support families through the provision of flexible hours that provide an appropriate degree of choice.

121. The intention is that education authorities will ensure that there is flexibility and choice for parents and carers in terms of the patterns of hours of funded early learning and childcare available across their authority area.

122. Flexibility in provision also extends to access to funded early learning and childcare delivered through settings in the private and third sector, including childminders.

123. Section 52 of the 2014 Act does not place an expectation that every setting will offer every possible pattern of provision that a parent or carer may request. This is to allow providers to effectively plan for and manage the capacity of their setting, and to acknowledge that for providers in the private, third and childminding sectors they will likely have a core offer for parents that underpins their business model. For example, settings will have established session times when delivering their service. While parents or carers should have access to a range of sessions of varying lengths and start times, it is not expected that individual settings must accommodate every request from parents to use their child’s statutory funded early learning and childcare entitlement for only part of a session (i.e. choosing their own drop off/pick up time).

124. Flexibility should be driven by local demand from families regarding the nature, and type, of provision that they require. The range of options available to families, should be established through consultation with representative populations of parents and carers as specified in section 50 of the 2014 Act.

125. The range should also be delivered within the framework as defined in section 51 of the 2014 Act.

126. This will enable education authorities to ensure an appropriate mix of provision within their area that reflects local circumstances and allows for choice of:

• Different types of settings including those in the private and third sector, and childminders.
• Choice in patterns of delivery such as varying lengths in sessions (whole day, half day, blended models etc.) and the number of weeks of the year in which they access the statutory entitlement (term time or year around provision).

127. It is important to stress that flexibility and choice is around patterns or models of provision. It will be for education authorities to design and develop those models in response to consultation; and to design systems of choice. Appropriate choice under section 52 of the 2014 Act is therefore intended around models and not individual providers or places.

128. Where providers in the private or third sector, or childminders, are delivering funded early learning and childcare sessions of a particular length, it is not necessary for education authorities to specify when those sessions should start and stop. Sessions also do not need to be in line with education authority timings as long as the framework for delivering funded early learning and childcare as defined in section 51 of the 2014 Act is met, as this will limit flexibility.

129. Parents may wish to alter the days of the week or the sessions during which they access their child’s funded early learning and childcare during a term. Providers offering the funded early learning and childcare entitlement should work with parents to accommodate this where possible, however Section 52 of the 2014 Act does not set an expectation that settings must accommodate frequent changes to the delivery pattern for a child’s funded early learning and childcare entitlement.

130. This flexibility in choices for parents and carers that arise from consultations will mean that education authorities will have to be adaptable. This will require a recognition that there will be an ongoing need to review and change models in response to demand from parents and carers within their area.

Transitions and split placements

131. The aim of flexibility is to provide options for families which are in the best interests of the child whilst also meeting the needs of the parents or carers. Being able to access funded and discretionary early learning and childcare, where they are required, at the same location can provide consistency for the child and their parent(s) or carers. However, there is no evidence to indicate that all of the child’s funded early learning and childcare entitlement should be delivered by the same provider. A mixed model of provision can be beneficial for children and parents, and education authorities should accommodate split placements across different providers where this meets the needs of the child and parents or carers.

132. The key priority in moving between settings is to manage those transitions well^[36]. This should be done by sharing responsibility for the child’s personal plan and focusing on developing a supportive and caring relationship between the child and their caregivers. The most important factor is that children receive high quality provision, wherever and however early learning and childcare is provided.

133. When a child starts at an early learning and childcare setting, they will make a number of transitions: from home to the setting, within the setting, potentially between settings, and from person to person. This can be exciting yet challenging for parents and children, as change often brings apprehension. If transitions are well supported, children can learn to manage change in a positive way, which is an important skill for life. A high quality early learning and childcare setting will build on the valuable learning and experiences that a child has had in and around the home; and, staff respond to children’s and parent’s needs to make sure the transition is positive and meaningful.

Additional guidance on other key legislation and policy relating to the delivery of early learning and childcare

134. This section sets out additional guidance on aspects of the legislative and policy framework which relate to the delivery of early learning and childcare, but are out-with the scope of section 34 of the 2000 Act under which the Early Learning and Childcare Statutory Guidance is issued. Links are provided where separate guidance, either statutory or non-statutory, is available on areas covered in this section.

Delivery of funded early learning and childcare through a range of providers

135. Under section 47 of the 2014 Act, it is the duty of the education authority to secure the statutory amount of early learning and childcare for each eligible child. Under section 35 of the 2000 Act, the education authority can enter into arrangements with any persons to make that provision for children under school age. As a result funded early learning and childcare is delivered through a mixed economy model with a mixture of public, private and third sector providers, including childminders, offering the funded early learning and childcare entitlement.

Securing high quality provision

136. Under section 66(1A)^[37] of the 1980 Act, Scottish Ministers have the power to cause inspection by HM Inspectors of Education of those providing early learning and childcare under a section 35 arrangement.

137. In addition, under the Public Services Reform (Scotland) Act 2010 (the PSR Act), all care services classed as day care of children including nurseries, children's centres, crèches, and childminders must be registered with the Care Inspectorate. The Care Inspectorate has a statutory responsibility to inspect and regulate all registered providers of day care and childminding against the National Health and Social Care Standards^[38] and, under section 50 of the PSR Act, Scottish Ministers are required to keep any standards under review.

138. Therefore, all settings delivering the funded early learning and childcare entitlement will be inspected by the Care Inspectorate on a risk-based frequency cycle. Some providers may also be sampled for inspection by HM Inspectors of Education.

139. Under section 3 of the 2000 Act, Scottish Ministers and education authorities are under a duty to endeavour to secure improvement in the quality of school education which is provided in Scotland; this includes early learning and childcare; and, under section 3(3)(b) of the 2000 Act, education authorities are under a duty to endeavour to secure improvement in school education (which includes early learning and childcare) which is provided by providers under arrangements made under section 35 of the 2000 Act.

140. Therefore education authorities also have a key role in securing improvement of quality in their own settings and in settings offering the funded early learning and childcare entitlement. Education authorities undertake this through quality improvement, learning and development, CPD (continuing professional development) and other forms of support. This is most effective when carried out jointly with their own settings and other providers delivering funded early learning and childcare. Education authorities should develop an integrated approach to work through forums and networks with providers in their area delivering funded early learning and childcare to maximise access to information, learning and development, CPD, and other support in order to assure and improve quality; and, ensure effective implementation of early learning and childcare and related policies.

141. Representative bodies of private and third sector providers, and childminders, also contribute significantly to quality assurance and improvement; and, work in partnership locally and nationally to achieve this.

Local funding arrangements

142. It is the responsibility of education authorities to determine fair and sustainable settlements locally with providers who are delivering funded early learning and childcare under a section 35 (of the 2000 Act) arrangement, while securing high quality provision. Guidance has been produced to support education authorities to set sustainable rates for providers delivering the funded early learning and childcare entitlement from August 2020.^[39]

143. Providers can include third sector organisations, social enterprises, private businesses and childminders. It is not for education authorities to seek to comment on or intervene in fees charged by these providers out-with the funded early learning and childcare entitlement.

144. Providers will have important views on a range of issues to ensure the easiest and most effective method of payments and fees, such as distribution and spread of funding arrangements. All providers including education authority settings who charge fees will be aware of other systems of subsidy available to parents and carers through the tax and social security systems.

145. Education authorities should not deduct payments to providers delivering funded early learning and childcare based on short term absences of children or short term emergency closure of an establishment, e.g. due to severe weather. This would not be a sustainable practice in any provision where the place is expected to be there for the child.

Consultation under the Schools Consultation (Scotland) Act 2010

146. Under the 2010 Act, education authorities must consult on any proposal to permanently discontinue a nursery school^[40] or all the nursery classes^[41] in a public primary school.

147. To support the expansion and reconfiguration of early learning and childcare, the Schools (Consultation) (Scotland) Act 2010 (Modification) Regulations 2017 removed the requirement to carry out a statutory consultation on proposals to establish a new nursery school or new nursery class and proposals to relocate a nursery school or nursery class under the 2010 Act.

148. The requirement for education authorities to consult on the establishment of a new nursery school or a new nursery class can be reinstated through an affirmative order.

149. Further information can be found in Schools (Consultation) (Scotland) Act 2010: guidance^[42].

Admissions policies and cross boundary arrangements

150. Education authorities can put in place admission policies to ensure they meet their statutory duty to secure the statutory entitlement to funded early learning and childcare for children within their area.

151. Admissions policies can include cross-boundary arrangements, and education authorities should, wherever possible, seek to meet families’ requests for cross-boundary placements, providing there is a space available.

152. It is recommended that a cross boundary no charging policy is implemented uniformly by education authorities.

153. It is recommended that education authorities meet on a regional or neighbouring basis to identify movement and places across boundaries and reach sustainable and mutually beneficial arrangements.

154. Funding Follows the Child and the National Standard For Early Learning and Childcare Providers: Transition Options Guidance on Contracting^[43] provides additional guidance, for where a procurement process will be undertaken, on education authority contracting arrangements with settings in the private and third sectors where there are high levels of cross boundary places.

Meals, snacks and drinks

155. Section 53 of the 1980 Act sets out the arrangements for the provision of school meals, snacks and drinks for pupils in attendance at public schools. This can apply to an eligible young child who receives funded early learning and childcare in an education authority establishment or in settings in the private and third sectors, including childminders, delivering funded early learning and childcare through a section 35 arrangement.^[44]

156. All meals and snacks must meet the most up-to-date nutritional guidance provided for Early Learning and Childcare (currently included in Setting the Table).^[45]

Free school meals

157. The 1980 Act provides criteria for children eligible for free school meals. Current information on eligibility criteria can be found on mygov.scot web pages.^[46]

158. Education authorities have a statutory duty to provide free school meals to eligible children when they are accessing their statutory entitlement to funded early learning and childcare.

159. Under section 53(12) of the 1980 Act, a school lunch means anything provided in the middle of the day which the education authority considers is appropriate for consumption as a meal at that time of day. It is for education authorities to determine at what point they serve school lunches within the general meaning of the middle of the day.

Early learning and childcare meal commitment

160. As part of the agreement to deliver the expanded statutory entitlement to funded early learning and childcare, the Scottish Government and COSLA made a joint commitment that every child attending a funded early learning and childcare session – which is any session that includes funded early learning and childcare hours, regardless of whether they are mixed with ‘paid for’ hours – from August 2020 will be provided with a free meal.

161. Children already eligible for free school meals will continue to receive their meal entitlement, which will be expanded to include all children attending a session that includes funded early learning and childcare hours.

162. Education authorities will provide settings who are delivering funded early learning and childcare with the funding to deliver the free meals, unless, in cases where a setting does not have onsite catering facilities, there may be an agreement that the education authority will provide the meals to the setting. Education authorities are expected to work in partnership with providers in the private and third sector, including childminders, to support them in identifying solutions to deliver the free meals commitment, particularly where they do not have onsite catering facilities.

163. As is the case for free school lunches, the up-take of the free meal is optional. Parents and carers who prefer to provide their child with a packed lunch are free to do so.

164. Where children access their funded early learning and childcare in a blended model or a split placement, settings should seek to establish methods to effectively share information with other practitioners. This will ensure that practitioners are aware of what food a child has consumed during a funded early learning and childcare session, and ensure appropriate delivery of the free meals commitment.

165. Further information is available in Funding Follows the Child and the National Standard for Early Learning and Childcare Providers: Operating Guidance^[47].

Additional meals/snacks

166. Under 53 (2b) of the 1980 Act, education authorities have discretionary powers to provide food and drink, including school meals, to all young children; and, to provide this free or at a charge. This means that they can provide free meals to any young children at their own discretion or under their own local priorities; and, can provide those meals at any time of the day. They can also provide snacks and meals at any time of the day and charge for children who don’t fall within the eligibility criteria for a free school lunch.

Nursery Milk

167. Nursery milk can be provided under the Nursery Milk Scheme (NMS). Under current provision, all children under five in a day care, or early years setting, for two or more hours a day, are eligible to receive a free daily drink of 189 ml (1/3 pint) cow’s milk. Children less than one year old are given infant formula milk.

168. Responsibility for the Nursery Milk Scheme was devolved to the Scottish Government through the Scotland Act 2016^[48]. Work is ongoing to develop how the scheme will be administered in Scotland. In the interim period, the Nursery Milk scheme will continue to be run by the Department of Health.

169. More information on the current scheme can be found at: https://www.nurserymilk.co.uk/

Enforcement of statutory obligations

170. Any concerns regarding whether an education authority is fulfilling its statutory obligations in relation to early learning and childcare should be pursued initially through the local authority complaints process and, where necessary, the Scottish Public Service Ombudsman^[49].

171. Section 70 of the 1980 Act will also apply to the discharge of any statutory duties relating to early learning and childcare under the 1980 Act and the 2014 Act. Where, for example, Ministers are satisfied than an authority has failed to fulfil its statutory duties relating to early learning and childcare, then section 70 enables Scottish Ministers to require education authorities to discharge those duties. There are now statutory timescales within which a matter being considered under section 70 must be dealt with^[50].