Early learning and childcare: statutory guidance - July 2021

Section 47: Duty to secure provision of early learning and childcare for eligible children

Section 47 of the 2014 Act places a statutory duty on education authorities to ensure that the funded early learning and childcare entitlement is made available for eligible children in their local area. Section 47 of the 2014 Act and the 2014 Order further define which children are eligible for funded early learning and childcare.

31. Section 47(1) of the 2014 Act provides that each education authority must ensure that the statutory funded early learning and childcare entitlement is made available for each eligible young child belonging to (i.e. residing in) its area^[4].

32. Under section 35 of the 2000 Act, an education authority can enter into arrangements with any persons to secure the statutory funded early learning and childcare entitlement for children under school age, i.e. early learning and childcare providers in the private, third and childminding sectors.

33. Education authorities may work with providers in the private, third and childminding sectors, to secure all or part of a child's funded early learning and childcare entitlement. As such, education authorities may enter into a section 35 arrangement with such a provider, regardless of whether or not the provider can deliver the full statutory entitlement of 1140 hours of funded early learning and childcare.

34. Section 47(2) of the 2014 Act defines an "eligible pre-school child", by setting out the three conditions that must be met, in order for a child to be eligible. The first two conditions (Section 47(2)(a) and (b)) must be met by all children, and then the third condition (section 47(2)(c)) has two alternatives, and one of these must be met, in order for a child to be eligible, as set out below.

35. An "eligible pre-school child" is a child who:

• is under school age;
• has not commenced attendance at a primary school (other than at a nursery class in such a school); and is either:

(i) aged 2 or over and is or has at any time since their second birthday been looked after^[5], is the subject of a kinship care order, or who has or has had a guardian by virtue of an appointment under section 7 of the 1995 Act (a parent-appointed guardian).

or

(ii) within such age range, or is of such other description, as Scottish Ministers may specify by order. This provides Scottish Ministers with the power to specify and expand eligibility through secondary legislation subject to affirmative procedure before the Scottish Parliament. This has been done through the 2014 Order.

36. The 2014 Order, as amended (made under the powers referred to in Section 47(2)(c)) therefore sets out further information on who is an 'eligible pre-school child', including which 2 year olds are eligible and the start dates for all children's eligibility commencing. The combination of eligibility criteria defined under section 47(2)(c)(ii) of the 2014 Act and the 2014 Order, also means that some children who defer their start at primary school for a year, are eligible. An amendment to the 2014 Order that comes into force from 1st August 2023, means that from that date all children with birth dates on or between the day after the school commencement date in August and the last day in February who defer their entry to school for a year, will be eligible.

Discretionary early learning and childcare

37. Under section 1(1C) of the 1980 Act, education authorities are empowered to provide discretionary early learning and childcare, over and above the statutory entitlement. Some education authorities use these powers to provide access before the statutory 'start date' or after the 'stopping date'; or to widen local eligibility criteria for 2 year old children, beyond the statutory eligibility criteria. Examples of how this discretion can be used are described throughout this guidance.