Early learning and childcare - statutory guidance: consultation analysis

Impact on Understanding of the Legislation

The consultation asked two questions to determine whether the draft Guidance helped the reader's understanding of the legislation relating to education authorities' functions, and to identify any areas of the legislative framework that remained unclear. These questions were:

• Q1a - Does the Guidance help your understanding of the legislation relating to education authorities' functions in the delivery of early learning and childcare?
• Q1b - Are there any specific aspects of the early learning and childcare legislative framework that remain unclear after reading the Guidance?

The key issues discussed by respondents at each question are outlined below.

Understanding the Legislation

Q1a - Does the Guidance help your understanding of the legislation relating to education authorities' functions in the delivery of early learning and childcare?

Overall, 152 (78% of all) respondents provided a substantive response at this question, including 99 (75% of all) individuals and 53 (85% of all) organisations.

Nearly three quarters of those who provided an answer (n=111, 73%) indicated that the Guidance had helped their understanding of the legislation relating to education authorities' functions in the delivery of ELC. Organisations were more likely to feel that the Guidance was helpful compared to individuals, with 81% (n=43) of organisations and 69% (n=68) of individuals indicating this.

While many did not provide any further comments in this regard, those who did typically felt the Guidance was clear, easy to understand, helpful, and outlined the legislation/requirements appropriately:

"Clear, easy to read and supports the implementation and delivery of ELC." (Individual)

"Yes, it is clear and easy to understand." (Organisation)

"…the Early Learning and Childcare Statutory Guidance very clearly outlines and explains the legislative framework underpinning the delivery of Early Learning and Childcare, and Education Authorities' statutory functions arising from the legislation." (Organisation)

Conversely, 17 (11%) respondents indicated that they did not feel that the Guidance had helped their understanding, while a further 20 (13%) suggested it had only been partially helpful (the remaining four (2%) respondents provided more neutral comments which did not identify whether the Guidance had been helpful or not). Individuals were more likely to feel the Guidance was either only partially or not helpful, with 30% (n=30) of individuals and 13% (n=7) of organisations indicating this. Some suggested that the Guidance was vague/lacked clarity, and was very complex for parents/carers or lay persons to understand:

"Very legalistic and difficult for the 'person in the street' to understand." (Individual)

Respondents' main concern appeared to be that the Guidance was subjective and open to interpretation, as written. Many individuals and organisations (including those who felt the Guidance was helpful and those who felt it was not or only partially helpful) felt that there was still ambiguity over how local authorities would/could implement provision. It was felt that, as this was Guidance and not policy or a requirement, different local authorities could interpret this differently, leading to inconsistency in terms of the nature or application of provision:

"…as it is only guidance, much isn't mandatory and therefore LAs [local authorities] aren't required to abide by it. It therefore doesn't help parents to work out what their rights are and what they can force councils to do." (Individual)

"It is being interpreted differently by 32 different LAs, therefore, no consistency creating confusion." (Organisation)

Remaining Ambiguity

Q1b - Are there any specific aspects of the early learning and childcare legislative framework that remain unclear after reading the Guidance?

Overall, 146 (75% of all) respondents provided a substantive response at this question, including 95 (72% of all) individuals and 51 (82% of all) organisations.

Around a third of those who answered the question (n=49, 34%) stated that there were no specific aspects which remained unclear, including 35 individuals (or 37% of those individuals who answered the question) and 14 organisations (or 27% of organisations who provided an answer). The remaining 97 (66%) respondents, however, identified areas where they felt additional detail or clarity would be beneficial.

Deferrals

One of the main areas which individuals (and a few organisations) felt was still unclear was the treatment of deferrals and, in particular, the availability of discretionary deferrals for children whose birthdays were between August and December. It was felt the Guidance was unclear in relation to the eligibility/funding criteria for deferral and that this would remain open to interpretation by local authorities which would result in different policies and practices being implemented across the country:

"The legislation around funding for P1 deferral for August - December born children remains unclear. Whilst funding remains at the discretion of each council, there is an inequitable delivery of early years' childcare across Scotland." (Individual)

It was felt that, in such circumstances, deferral decisions could be made for financial reasons and not in line with Getting it Right For Every Child (GIRFEC) or the child's best interests. Further, it was suggested that there was not enough emphasis given to the parent's/carer's rights/voice in relation to deferral decisions, that there was a lack of an appeal process in some areas, and that greater information and support needed to be provided to parents/carers who chose to defer their child's entry to school:

"Leaves it too ambiguous and open for councils to do as they please to meet funding targets rather than a truly needs based and child centred approach." (Individual)

"It seems that the Guidance says you do not have to send your child to school until after their 5th birthday which is a clear message, but then it is unclear whether funding will be granted and what specific factors are to be considered in granting additional funding." (Individual)

"The process is a shambles and there is no clear route to take when choosing to defer your child's start date for school. We got passed from pillar to post… we were given no information, no help or support and nobody seemed to know what we could do next." (Individual)

Some also felt that the system would most negatively impact vulnerable families/children, with only those who could afford to self-fund being able to defer their child's school start date. Rather, it was suggested that the Scottish Government should require that automatic guaranteed funding be implemented for all legal deferrals:

"The current policy of discretionary funding is unfair and inequitable because there are different policies between councils. The only way to make things right for our children is to grant AUTOMATIC funding to all 4-year olds who do not wish to start school until they are 5. This would negate all the stress, time wasting and money that parents, nursery staff and council staff have to go through." (Individual)

It should be noted, however, that since the consultation on the revised statutory guidance was carried out, the Scottish Government's policy on funded ELC access for children who defer has been updated. In January 2021, the Scottish Parliament approved The Children and Young People (Scotland) Act 2014 (Modification) (No. 1) Order 2021. This Order amends legislation to provide an additional year of funded ELC to all children who defer their primary 1 start from August 2023^[4].

Funding Follows the Child

Some respondents (including both individuals and organisations) felt that the 'funding follows the child' aspect of the Guidance was either unclear, provided inconsistent messages, and/or did not match their personal experiences. A few individuals considered that the differing per child funding being applied by local authorities for children across the different settings was not in keeping with the ethos of funding 'following the child' and placed a different value on each child/environment depending on the ELC setting. Instead, several respondents felt that the same level of funding should be available to each child irrespective of the childcare setting. A few individuals also noted the impact this approach could have on staffing availability and the sustainability of the Private, Voluntary and Independent (PVI) sector, which they felt risked creating a two-tier system:

"It makes a complete mockery of funding follows the child as each child is valued differently depending upon the setting they are in. PVI settings are being funded below the level available within the model. The rates range from £5ph [per hour] to £6.50ph whilst council settings are funded at £7.31ph at least. This has led to displacement of staff - authorities offering significantly enhanced terms, conditions and salaries than PVI settings can afford on the rates paid or proposed." (Individual)

"Funding follows the child, what does that truly mean? If it truly followed the child the same amount of funding would be allocated no matter where the child attends." (Individual)

One individual suggested that clearer guidance on charging fees to parents/carers who wish to secure a funded placement from a partner provider was required. A few individuals also noted that they had been denied the ability to choose a private provider or a childminder, despite the Guidance making such provisions.

Further, several organisations (including one local authority) discussed limitations in funding being seen to follow the child in cross-boundary situations. It was suggested that clarification was required on how local authorities, who develop different models or policies on funding decisions and start/end dates for funding can support provision (or not) when a resident parent/carer chooses to utilise provision in a neighbouring authority.

Differing Funding for PVI and Local Authority Providers

In addition to the concerns raised above by individuals, the main concern for organisations was that the Guidance was open to interpretation by local authorities and allowed them to treat PVI providers differently compared to their own services. It was suggested that funding was not being shared fairly between all providers, and that the discrepancies in the funding being provided to local authority providers and PVI providers resulted in unequal terms and conditions for staff working in the various sectors, as well as sustainability and fairness issues for PVI providers.

In particular, it was noted that the lower per child funding rates for PVI providers were unsustainable, often not covering costs and making it difficult for PVI providers to pay staff the Scottish Living Wage (SLW) as required (and that inflation within the SLW was not taken into account with funding being fixed over several years). Rather, it was felt that the rate per child needed to be increased to match the rates allocated within local authority provision in order to cover costs and allow them to pay staff wages which were competitive with local authority provision. Respondents felt that the higher wages being offered by local authority providers meant that PVI providers were experiencing staff retention issues. It was also suggested that the PVI sector and public sector appeared to have to compete with each other and that capital funding was often more difficult for PVI providers to access:

"…it is very open to interpretation as is evident in how LAs are rolling out their services, increasing their staffing, building brand new nurseries next to PVI providers and not sharing the funding equally amongst all providers." (Organisation)

"…this is going to end up with a divided workforce, inequalities between LA and PVI sectors, a fall in quality in the PVI as they cannot compete with the salaries or maintenance of standards with a rate that does not even support SLW and the true cost of service delivery." (Organisation)

Issues for Childminding Services

Generally, it was felt that the Guidance lacked clarity and/or detail for childminders, and the methods for the introduction of new childminders in particular.

A few organisations and local authorities felt that the Guidance suggested that childminders would be able to charge a retainer fee for parents/carers opting for blended models, meaning they would be charged a fee while their child is accessing another provider. While two childminders welcomed this opportunity and stated that retainer fees were often vital in ensuring a viable business, this appeared to be a cause for concern for others as it was considered to place more financial onus on parents/carers by making them pay for hours/services that are not used. This also raised questions over other services being able to adopt retainer fees, with one local authority suggesting that the Guidance needed to make clear that no sector or provider should be able to charge retainer fees within ELC provision.

Managing Provision and Operational Issues

Several organisations and local authorities identified areas linked to managing provision and operational issues where they felt that further detail/clarity was needed or would be helpful, including:

• information on whether it is possible to utilise some of the 1140 hours to work with parents/carers for all two year olds, and possibly for some aged three and four;
• further guidance on the minimum length of a session, and session length to be kept under review to assess effects on children's wellbeing (and clarity on who would be responsible for such monitoring and reporting);
• information on local authorities' obligation to ensure, manage and monitor quality in all partner settings, and what actions should be taken when a service falls below the required standard;
• whether local authorities must enter into arrangements with providers who meet the standard in localities/areas where there is excess capacity, even where to do so may affect the viability of existing partners;
• clarification on whether a local authority must enter into an agreement with any partner that meets the standard;
• clarification on the extent to which a local authority must follow the Guidance or whether they can adapt their own terms for private partnerships;
• clarification about which body will be responsible for overseeing and monitoring to ensure that local authorities do not intervene in other areas of a funded providers' business arrangements outside that of the funded entitlement, and provide details on how this will be done;
• consideration of possible impacts on limited and mixed provision in remote and rural areas, e.g. where only one childcare provider exists the service may become full with ELC provision resulting in no provision for other age groups;
• guidance on what is required of local authorities to provide equal promotion of all providers and service types;
• clarification on whether 'holiday cover' refers to holidays taken by a childminder or by parents/carers during funded hours; and
• clarification on which settings need to provide evidence of all ten criteria^[5].

Providing Transparency

A few organisations and local authorities felt that additional information or clarity could be provided in relation to consultation activities and/or consulting with parents/carers. It was suggested that greater clarity could be provided on the duty to consult every two years and publish a plan, and it was suggested that longer term plans (e.g. 3-5 year plans) plus biannual consultation on progress would be more beneficial and achievable. It was also suggested that consultation should include parents/carers, funded providers, and practitioners, as well as capture children's voices. Also that guidance to local authorities on how to communicate their delivery plans to ensure they are accessible to parents/carers would be helpful. One respondent also noted that, while the Guidance stated that the school consultation process would be altered for opening new nurseries in schools, it did not change the process for closing nurseries for consolidation purposes.

Further, a few suggestions were made in relation to the information provided to parents/carers and processes that would be needed. Firstly, it was considered important to clarify to parents/carers that not everyone will be able to receive the exact model that they want as providers must fit with local ELC delivery plans. It was also suggested that information was needed in relation to any recourse available for parents/carers, e.g. if the provision they are offered does not meet their needs or they cannot access this, and that it would be necessary to provide a clear and easily accessible process for parents/carers who wish to challenge/ discuss further/raise issues with their local authority about their place offer, with transparency around admissions policies, place offering, waiting lists, etc. It was felt that there should be a clear process for parents/carers who do not wish to take up all of the 1140 hours and local authorities must not penalise parents/carers for not taking up their full entitlement.

A few also suggested that additional clarification was required over charges, including when parents/carers may have to make their own financial contribution above the 1140 funded hours, and that funded providers should not charge extra for the start/end of the day or over lunchtimes.

The need to incorporate some level of accountability was also discussed by a few individuals and organisations, with respondents highlighting a need for both local authorities to monitor and enforce best practice among providers, and for local authorities to be accountable and scrutinised/audited in relation to delivery with parents/carers being involved in such processes:

"…the Guidance needs to include aspects of audit, scrutiny and evaluation with parents leading on this." (Individual)

Incorporating the Education (Additional Support for Learning) (Scotland) Act 2004

Respondents highlighted that the Guidance did not fully explain, incorporate and highlight the duties that education authorities, practitioners and service providers have under the Education (Additional Support for Learning) (Scotland) Act 2004 ('the 2004 Act'). A few suggested that the Guidance should more fully embed the 2004 Act duties throughout, and ensure that language around ASN is clear with no ambiguity.

Areas where it was perceived that the duties and relationship between the ELC framework and additional support for learning framework could be highlighted included:

• acknowledge that deferred placement may be a form of 'adequate and efficient' support under the 2004 Act to meet additional support needs;
• acknowledge or reiterate in the Guidance that the right to 'additional support' can cover support beyond learning support, for example it can include feeding, intimate care, sleeping and medical needs;
• highlight that children who are too unwell to attend early years' settings, are still entitled to receive ELC and additional support;
• emphasise that children with ASN have the same right to access their entitlement, and the adequate and efficient support benefit from entitlement, as any other child;
• provide guidance for parents/carers, providers and local authorities on how separate decisions on discretionary funding from ASN will happen or be monitored; and
• in line with 'Included, Engaged and Involved'^[6][7] this Guidance should set out that exclusion should be a last resort as well as the duties in place when this does occur.

It was also noted that, while the duty lies with Local Authorities, all funded providers have a responsibility to meet the needs of children and young people. However, it was felt that this can be challenging to implement in practice, and can result in a drift of children with ASN to local authority provision. It was felt that the Guidance needed to show greater understanding of the implications of meeting such needs now and in future.

Incorporating Gaelic Medium Education

It was also noted that the Guidance failed to reference Gaelic Medium ELC and its specific requirements. Two organisations outlined suggestions to assist the Guidance to more fully incorporate Gaelic Medium Education providers.

One suggested that the Guidance should make clear that, when local authorities are considering implementation of the extended hours, Gaelic has equal status with English. This respondent noted that Section 2.5 - 2.8 of the Statutory Guidance on Gaelic Education provides information to education authorities regarding Gaelic Medium ELC. Therefore, it was recommended that a section on Gaelic Medium ELC be included within this Guidance, along with a link to the Statutory Guidance on Gaelic Education. They also recommended that links to the following documents prepared by Education Scotland should be included:

• 'Advice on Gaelic Education'; and
• 'Advice on Gaelic Education: Total Immersion'.

It was also highlighted that draft Guidance on Gaelic Medium ELC had been prepared and would go to consultation in February 2020. They suggested that it would be useful if this could be referenced within the Statutory Guidance on Early Learning and Childcare to enable education authorities to access more information around the delivery of Gaelic Medium ELC.

Further, it was suggested that the Statutory Guidance should:

• refer to the duties incumbent on local authorities under the Education (Scotland) Act 2016 to promote and support Gaelic Medium Education;
• advise that as education includes the provision of ELC, education authorities should promote and support Gaelic early years provision, in line with the Education (Scotland) Act 2016;
• include information on the importance of 'total immersion' in early years' settings;
• include information on the importance of fluent Gaelic speaking staff in early years settings to ensure the delivery of high quality provision; and
• advise on opportunities for professional learning available to Gaelic Medium practitioners.

Additional Suggestions

Other areas of clarity sought by individuals, typically by one or two respondents each, included:

• greater clarity regarding the flexibility of the 1140 hours, what choices parents/carers have regarding how many hours nursery they want for their child, and parents'/carers' ability to choose hours to suit their needs;
• a child's minimum entitlement to funded preschool education over the whole period. It was not clear whether this was 1.5 years or 2 years;
• a desire for further information about the private sector and what they have to offer;
• recognition of the need to consider infants born preterm who may need to be assessed for developmental readiness to enter formal school education;
• more specific detail in relation to children absent due to illness;
• advice relating to young children living in remote areas where travel time to early years' provision may be very tiring for a young child;
• information about grants or other financial support for resources or equipment for new providers and information on how payment for funded providers will be made;
• reference to the responsibility of the Education Authority to record education and care arrangements in a child's plan;
• non-statutory guidance on duties to consult and plan in relation to discretionary ELC; and
• guidance on mandatory and discretionary day-care and out of school care for children in need and not in need.

A few individuals also questioned whether blended models of childcare would be possible, i.e. mixing the use of nurseries and childminders either throughout the year, or utilising different providers in term time compared to the school holidays. A few organisations also suggested that it was important for blended models to be supported and promoted.

Other areas where further clarity was considered necessary by organisational respondents, again typically mentioned by just one or a few each, included:

• the guidance should fully reflect a human rights-based approach and, in particular, provide a greater focus on the rights of the child and having their best interests as the primary consideration, as per the requirements of the United Nations Convention on the Rights of the Child (UNCRC). It was suggested that the UN Committee on the Rights of the Child's General Comment No 7 (2005) on Implementing child rights in early childhood^[8] further outlines the State's role in relation to community-based and private providers of early education, and should be referenced in the Guidance;
• clarification and further explanation on eligible two year olds, as well as on how education authorities and services providers should communicate and promote the eligible two year old entitlement to increase uptake;
• providing a definition of 'care experienced' and 'looked after children', and clarification on whether the qualifying criteria extends to those in informal kinship care;
• clarification on the need for welfare foods/healthy snack provision, and information on any administrative changes that will be required for the Nursery Milk Scheme (NMS);
• clarification on the term 'flexible';
• providing some additional detail of the Care Inspectorate's responsibility to register or vary the registrations of care services;
• providing detail of the Children (Scotland) Act 1995 (section 22);
• strengthening the Guidance to place an emphasis on education authorities to ensure that Continuing Professional Development (CPD) is available and accessible to all providers across all sectors; and
• providing clarity around whom and for what purpose SEEMiS^[9] is not used and how consistency will be maintained across sectors, and provide timely guidance for funded providers around how to work efficiently during the switch over from the Nursery Application Management System (NAMS) to SEEMiS.

Finally, a few organisations suggested additional resources which may be useful to support the Guidance. This included:

• an appendix which provides an overview of models across the country;
• appropriate toolkits as to how each education authority should exercise their functions in relation to their discretionary powers to provide ELC for children outwith the eligibility criteria; and
• smaller, separate documents in relation to key themes, for example legislation with regards to looked after children and the relevant statutory obligations around this, as well as a summary version of the Guidance for providers.