Early learning and childcare: statutory guidance - July 2021

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

Under section 50(1) of the 2014 Act, education authorities must, at least once every 2 years:

• consult with persons who appear to be representative of parents of children under school age in their area about how they should make early learning and childcare available.
• 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

98. Consultation on the delivery of early learning and childcare provides an opportunity for parents to share their views on models, flexibility, types of setting where they wish to access their child's early learning and childcare (for example, across public, private, third and childminding settings) 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. It also provides the opportunity for realising every child's right to express their views and be heard, either directly or through a representative or appropriate body (Article 12 of the UNCRC – Respect for the views of the child). Education authorities may also consider if child consultation would be useful.

99. Examples of what the consultation on the delivery of early learning and childcare could seek views on are:

• the type and mix of settings available in the area;
• the pattern of delivery (e.g. whole day, half day, blended placements etc.);
• the number of weeks in the year provision is available;
• the desire for Gaelic medium provision;
• the desire for cross-boundary placements;
• the extra support children / families need to access their entitlement;
• the location of provision.

These are just examples, and it is for education authorities to decide what the consultation should cover to ensure that families are able to drive the nature, and type, of provision and support provided locally.

100. Education authorities are required to consult with what appears to them to be a representative sample of parents of children under school age in their local area. 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.

101. Education authorities are encouraged to use embedded good practice in how they consult, 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.

102. To ensure that consultations are representative and inclusive, education authorities should use a range of consultative methods to engage a wide range of parents. They should seek to include:

• Working parents
• Parents residing in rural areas
• Parents who are less likely to engage with statutory services
• Parents with lived experience of poverty and disadvantage
• Parents of children with additional support needs
• Parents with additional support needs
• Corporate parents
• Parents seeking Gaelic medium education
• Parents who live in communities where provision is limited
• Parents from the Veterans and Armed Forces community
• Parents who have or are parents of children with 'protected characteristics'^[23] e.g. minority ethnic families (including Gypsy/Traveller families), parents with a disability or parents of children with a disability, LGBTI parents, and those from religious communities. Consulting families with protected characteristics, helps education authorities meet the public sector equality duty under the Equality Act 2010 and section 3B of the 2000 Act and can inform local impact assessments. Further information is outlined in paragraphs 106 and 107.

103. 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, 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 listed as relevant authorities in terms of the schedule of that Act, should have regard to island communities in carrying out their functions.

104. Some families may wish for their child to access their early learning and childcare entitlement through the medium of Gaelic. Although there are no duties on education authorities to provide Gaelic early learning and childcare, education authorities retain a discretion to provide it. The Statutory Guidance on Gaelic Education recommends that authorities consider establishing Gaelic early learning and childcare as a step towards Gaelic Medium Primary Education (GMPE) and will be expected to strive for a degree of continuity of Gaelic medium education (GME) in accordance with their Gaelic Language Plan and the National Gaelic Language Plan. The duty to consult under the 2014 Act provides education authorities with the opportunity to consult parents on Gaelic early learning and childcare so that they can consider whether and if so how, they make such provision available in their area.

105. It is important to consult with parents 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 accessing their child's entitlement in a range of settings across the public, private, third and childminding sectors. Education authorities may also find it useful to consult parents whose children received the funded early learning and childcare entitlement, but are now at early school age. These parents 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.

106. 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^[24].

107. The duty to consult under the 2014 Act should provide useful evidence to help education authorities meet the public sector equality duty under the Equality Act 2010^[25] 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. The Equality and Human Rights Commission have produced a series of guides providing advice on the public sector equality duty in Scotland. This includes guidance to implement the duty as it relates to involvement.

Frequency of consultation

108. 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.

109. 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.

110. 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

111. Education authorities are under a duty to publish their plan for the delivery of early learning and childcare at least once every 2 years. 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.

112. 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.

113. 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.

114. 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.

115. 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 on the provision of the funded early learning and childcare entitlement at national and local levels. Education authorities should consider how they make parents aware of their child's entitlement, of the range of provision available, and how to access this.

116. In publishing their plans and communicating locally about the early learning and childcare entitlement, education authorities should consider how they can make this information readily accessible for parents within their local area. For example, ensuring information is in Plain English, and available in alternative formats such as audio tape, Braille, large print, British Sign Language (BSL), Easy Read, and other community languages. The Inclusive Communication Hub website includes tools, guidance and practical assistance on how to make information accessible to people. Education authorities should also consider how information will be made available for those who are not online, so hard copies may need to be provided to certain stakeholders to share with those who will need them.

117. Education authorities should ensure communities know that this information exists; where to find it; and that it is available in alternative formats. To maximise reach, education authorities can involve organisations and stakeholders such as third party organisations, advocacy groups or other relevant bodies, in sharing and cascading the information through their networks and communities or groups.

118. Good quality communication is central to building strong relationships with parents. It is also one of the key goals in the Scottish Government's 'Learning Together' Action Plan, a joint three year plan 2018-21 between Scottish Government and COSLA. The main focus of the plan is on ensuring parents 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.