Early learning and childcare: statutory guidance - July 2021

Section 49: Looked after 2 year olds: alternative arrangements to meet wellbeing needs

Section 49 of the 2014 Act provides that the duty to make available the statutory funded early learning and childcare entitlement to every 'eligible pre-school child' can be disapplied for children aged 2 and over that have, since their second birthday, been looked after by a local authority where: an assessment of the child's needs has taken place, and the local authority considers that alternative arrangements for the child's education and care would better safeguard or promote the child's wellbeing.

91. Looked after children are defined in section 97(2) of the 2014 Act in accordance with section 17(6) of the 1995 Act^[21].

92. Under section 47(2) of the 2014 Act, any child aged 2 or over who is looked after, or has been looked after at any point since their second birthday, is considered an 'eligible pre-school child' for the purposes of the duties on education authorities in relation to access to early learning and childcare. As such, they remain eligible for the full statutory entitlement of funded early learning and childcare regardless of whether they remain looked after or not.

93. The purpose of section 49 of the 2014 Act is to provide increased flexibility in the type of service education authorities can make available for the education and care of children aged 2 or over who have been looked after at any time since their second birthday, and are eligible only because they have been looked after, i.e. under section 47(3)(a)(i).

94. Under section 49(2) of the 2014 Act, the education authority does not need to comply with their duty to provide access to early learning and childcare (under section 47(2) of the 2014 Act) for these children only where:

a) an assessment of needs has been made (to consider whether alternative arrangements for the child's education and care would better safeguard or promote the child's wellbeing than access to 'early learning and childcare'); and

b) an authority makes 'alternative arrangements in relation to the child's education and care as it considers appropriate for the purposes of safeguarding or promoting the child's wellbeing'.

However, as set out under section 49(3) of the 2014 Act, these exceptions do not apply if a parent of a child who is not being looked after by the authority, objects to the authority making alternative arrangements.

95. 'Appropriate' alternative arrangements are not further defined in the 2014 Act. Reference to ensuring that alternative arrangements 'safeguard or promote the child's wellbeing' relates to section 96 of the 2014 Act which relates to guidance on an 'assessment of wellbeing'.

96. Where there is an assessment of wellbeing, it must be undertaken with reference to the 8 wellbeing indicators described within Part 18, section 96 of the 2014 Act.

97. The assessment and recording of outcomes in a child's plan will ensure that there are considered and transparent reasons to support the decision making on alternative arrangements made under section 49(2)(b) of the 2014 Act as good practice.^[22]