Early learning and childcare: statutory guidance - July 2021

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

163. 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, third, and childminding sector providers, offering the funded early learning and childcare entitlement.

Funding Follows the Child and the National Standard for Early Learning and Childcare Providers

164. Funding Follows the Child^[32], which was agreed by the Scottish Government and COSLA, ensures that the funded early learning and childcare entitlement is delivered in high quality settings. This approach is 'provider neutral' and is underpinned by a National Standard that all settings – regardless of whether they are in the public, private, third or childminding sectors – that wish to deliver the funded entitlement have to meet.

165. At the heart of the National Standard is a clear and consistent set of quality criteria, to ensure that all settings which are offering the funded entitlement are delivering the highest quality early learning and childcare experience. Funding Follows the Child also enables choice as parents can access their child's funded early learning and childcare entitlement at the provider of their choice if that provider meets the criteria in the National Standard, has a space available and is willing to enter into a contract with the education authority.

166. This is intended to support a wider system for the delivery of funded early learning and childcare that is built upon a mixed economy model of provision in the public, private, third and childminding sectors. It is expected that education authorities and providers offering the funded early learning and childcare entitlement will work together meaningfully and in genuine partnership to deliver high quality and flexible early learning and childcare provision.

Securing high quality provision

167. Under section 66(1A)^[33] 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.

168. Under the Public Services Reform (Scotland) Act 2010 (the PSR Act) The Care Inspectorate has a statutory responsibility to inspect and regulate all registered providers of day care and childminding services including those that provide early learning and childcare under a section 35 arrangement. The Care Inspectorate must take account of the National Health and Social Care Standards in making any decision and, under section 50 of the PSR Act, Scottish Ministers are required to keep any standards under review.

169. Under section 59 of the PSR Act, any person seeking to provide a care service must apply to the Care Inspectorate for registration of that service. It is an offence under section 80 of the PSR Act to operate a service without registration. All care services classed as day care of children services including nurseries, children or family centres, creches and those providing a childminding service must be registered with the Care Inspectorate. When registration is granted, the provider is issued a certificate of registration with conditions of the service that can be provided.

170. Under section 70 of the PSR Act, any person providing a care service may apply to the Care Inspectorate for a change to the care service for the variation, removal or addition of a condition of registration. The date of the application of change to care service must not be less than 3 months before the proposed change is to take place. If the Care Inspectorate grants a variation to registration the care service provider will be issued with a new certificate of registration.

171. 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.

172. 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.

173. 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.

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

Local funding arrangements

175. 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.

176. 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.

177. 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 through the tax and social security systems.

178. 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.