The Provision Of Early Learning And Childcare (Specified Children) (Scotland) Amendment Order 2020: equality impact assessment Results

Key Findings

Key Findings – potential Impacts on the ‘Needs’ of the Public Sector Equality Duty

Potential Impacts on Eliminating Discrimination

35. This process did not find evidence to suggest that this policy will discriminate against people who share the relevant protected characteristics.

36. The policy will have a statutory basis. This means that education authorities will have a statutory duty to secure funded ELC for all children that defer in their area, regardless of the family’s background or circumstances.

37. Funded ELC in Scotland is underpinned by the National Standard, which underlines our commitment to ensuring that children’s funded ELC entitlement is fully inclusive. Education authorities and ELC providers have a wide range of duties that they must already meet under existing legislation to eliminate discrimination, harassment and victimisation within ELC:

• Education (Additional Support for Learning) (Scotland) Act 2004^[11];
• Public Services Reform (Scotland) Act 2010^[12];
• Equality Act 2010^[13];
• Children and Young People (Scotland) Act 2014^[14]; and
• Standards in Scotland’s Schools etc. Act 2000^[15].

38. This means that ELC provision must be delivered in a way that ensures equality of access for, and accounts for the varying needs of, all children. Children should be able to learn free from discrimination and in settings which actively tackle health and social inequalities. Additional support therefore must be provided, over the short or the long term, to overcome needs arising from the care and learning environment, family circumstances, health needs or disability or social and emotional factors.

Potential Impacts on Advancing Equality of Opportunity

Protected characteristic - Age^[16]

In the Scottish Government’s ‘The Tackling Child Poverty Delivery Plan’ 2018-2022^[17], there is a focus on ‘priority families’ at high risk of poverty, this includes families with young mothers (where the mother is under 25 years of age) as 44% of children of mothers under 25 years of age are likely to live in relative poverty. Under the current system, parents who share this protected characteristic may therefore face financial barriers when considering deferral for their child, as ELC for children who defer with an August to December birth date, is not a statutory entitlement.

This Order will mean that children who defer in this age group do have a statutory entitlement to funded ELC, removing potential financial barriers some families may currently face, as the long-standing legislative position is that funded ELC hours must be free at the point of access regardless of which setting the hours are being delivered in.

The parent survey exploring uses of ELC in Scotland^[18] showed that household income and parent age showed the closest correlation with parents’ awareness of the planned ELC expansion in Scotland. Lower income households and parents aged under 35 were less likely to be aware.

Although these findings are related to awareness of the ELC expansion specifically as opposed to awareness of ELC access for deferred children, we are taking actions to ensure that all parents and carers are able to make informed decisions about deferral. National and local government both have a role to play in making sure parents/carers are aware of their child’s funded ELC entitlement.

Before the amended duty commences, we will develop a new page on Parentclub.scot^[19] with information about deferral, and ‘things to consider’ for parents and carers. We will also provide a PDF of this resource to local authorities, to share locally if required. We will also examine where other materials and resources could be made available.

Protected characteristic - Disability

In the Scottish Government’s ‘The Tackling Child Poverty Delivery Plan’ 2018-2022^[20], there is a focus on ‘priority families’ at high risk of poverty, this includes families which include a disabled adult or child as 30% of children from a family with a disabled adult or child are likely to live in relative poverty. Under the current system, parents from families with an adult or child with a disability may therefore face financial barriers when considering deferral for their child, as ELC for children who defer with an August to December birth date, is not a statutory entitlement.

This Order will mean that these children do have a statutory entitlement to funded ELC, removing potential financial barriers some families may currently face, as the long-standing legislative position is that funded ELC hours must be free at the point of access regardless of which setting the hours are being delivered in.

Data from the Scottish Study of Early Learning and Childcare^[21] show that at age four- and five-years old children with a long-term health condition or disability were more likely to demonstrate delayed development and to be assessed as having some behavioural difficulties than those without.

Evidence shows that children with a disability are more likely to defer P1 entry. In 2018, data from the pupil census^[22] shows that:

• The estimated deferral rate is higher for pupils with a recorded disability (38%) than for those without (15%). 19% of pupils with a disability born in August to December and 77% born in January and February deferred, compared with 4% and 44% for pupils born in the same months without a recorded disability.
• Deferred pupils are more likely to have a disability than other P1 pupils. 1.0% of all deferred pupils in P1 have a disability. The rate of disability in this group is around six times as high compared to all P1 pupils excluding deferrals, of whom 0.2% have a disability. Among deferred pupils born in January and February, 0.8% have a disability. While for those born from August to December, 1.7% have a disability.

We do not have evidence on if these children accessed ELC in their deferred year and if they did, whether this was funded by the Scottish Government, funded by the local authority on a discretionary basis, or funded by the family. However, as families with a disabled child may be more likely to defer their child’s P1 entry, this Order could have a disproportionately positive impact on this protected characteristic.

Protected characteristic - Sex^[23]

In the Scottish Government’s ‘The Tackling Child Poverty Delivery Plan’ 2018-2022^[24], there is a focus on ‘priority families’ at high risk of poverty, this includes lone parent families, 36% of children of lone parents are likely to live in relative poverty. Data from Scotland’s census shows that women accounted for 87% of lone parent families in Scotland.^[25]

Under the current system, lone parent families, the majority of which are headed by women, may therefore face financial barriers when considering deferral for their child, as ELC for children who defer with an August to December birth date, is not a statutory entitlement.

This Order will mean that children who defer in this age group do have a statutory entitlement to funded ELC, removing potential financial barriers lone parent families (typically headed by women) may currently face, as the long-standing legislative position is that funded ELC hours must be free at the point of access regardless of which setting the hours are being delivered in.

Evidence also shows that women generally carry out the majority of childcare and other caring responsibilities in the family.^[26] In the current system, we do not have evidence on if and how children with August to December birth dates who defer access ELC in their deferred year. We also do not have information on whether deferring children in this age-group, has an impact on the time the parent or carer spends caring for the child, and their subsequent ability to work or increase their hours of work. If in the current system, deferring children with August to December birth dates does impact on the time the parent or carer spends caring for the child, we would expect this Order to have a greater impact on women, as they typically take on the majority of the caring roles in the family. We know that when the ELC 1140 hour expansion is rolled out that families will generally have more flexibility with their ELC hours, compared to school hours, which may therefore benefit women’s ability to work.

Data from the Scottish Study of Early Learning and Childcare^[27] show that at age four- and five-years old boys were more likely to demonstrate delayed development and to be assessed as having some behavioural difficulties than girls.

Evidence shows that P1 pupils who deferred in 2018, were more likely than other P1 pupils to be male. In 2018, data from the pupil census^[28] shows that 61% of deferred pupils were male, compared with 50% of all P1 pupils excluding deferrals.

We do not have evidence on if these children accessed ELC in their deferred year and if they did, whether this was funded by the Scottish Government, funded by the local authority on a discretionary basis, or funded by the family. However, as male pupils may be more likely to defer, this Order could have a disproportionately positive impact on families with a male child.

Protected characteristic - Race

In the Scottish Government’s ‘The Tackling Child Poverty Delivery Plan’ 2018-2022^[29], there is a focus on ‘priority families’ at high risk of poverty, this includes minority ethnic families as 37% of children from minority ethnic families are likely to live in relative poverty.

Under the current system, minority ethnic families may therefore face financial barriers when considering deferral for their child, as ELC for children who defer with an August to December birth date, is not a statutory entitlement.

This Order will mean that children who defer in this age group do have a statutory entitlement to funded ELC, removing potential financial barriers minority ethnic families may be more likely to face, as the long-standing legislative position is that funded ELC hours must be free at the point of access regardless of which setting the hours are being delivered in.

The estimated rates of deferral are similar for White – Scottish, White - other British, White – other and all other ethnic groups for pupils born between August and December at around 4%.

For those born in January and February, the estimated deferral rate for all other ethnic groups (41%) is slightly lower than the rates for White – Scottish (45%), White – other British (43%) and White – other (47%).

Protected characteristic – Religion or belief

There is evidence that Muslim families, are at a higher risk of poverty. Data for 2013-18 for Scotland showed that Muslim adults were more likely to be in relative poverty than adults overall. 41% of Muslim adults were in relative poverty after housing costs, where the proportion for adults overall is 18%.^[30] All other religious groups and those with no religion had a relative poverty rate after housing costs similar to that found for the whole population.

Under the current system, Muslim families, may therefore face financial barriers when considering deferral for their child, as ELC for children who defer with an August to December birth date, is not a statutory entitlement.

This Order will mean that children who defer in this age group do have a statutory entitlement to funded ELC, removing potential financial barriers Muslim families may currently face, as the long-standing legislative position is that funded ELC hours must be free at the point of access regardless of which setting the hours are being delivered in.

Protected characteristics – Pregnancy and Maternity; Gender reassignment; and Sexual orientation

This EQIA process did not identify any positive or negative impacts relating to advancing equality of opportunity based on the protected characteristics sexual orientation, gender reassignment, and pregnancy and maternity. However, as we continue through the policy development, this will be kept under review.

Potential Impacts on promoting good relations

39. This EQIA process did not find any particular positive or negative impacts related to promoting good relations between groups who share and those who do not share particular protected characteristics as a result of this policy.

Key Findings – potential impacts on people living on low income or living in poverty

40. This legislative change will align children’s funded ELC entitlement more closely to the existing right parents’ have to defer for children who turn five years old between the August and December after the school commencement date.

41. As is the long-standing legislative position, funded ELC hours must be free at the point of access regardless of which setting the hours are being delivered in. This Order will therefore mean that families of children with a birth date in August to December who defer will be able to make decisions for their children, based on what they feel is in the best interests of the child, without the financial barrier of additional ELC costs. The impact on families with children with August to December birth dates who defer who are on low income or live in poverty, will therefore be positive, as in the current system, they will be less likely to be able to afford an additional year of funded ELC in a deferred year where discretionary funding was not granted by the local authority.

42. Evidence on deferral from the Scottish pupil census^[31] shows that 20% of deferred pupils in 2018, were from SIMD 1 (20% most deprived areas in Scotland), however, for all P1 pupils excluding deferrals, 24% of pupils are from SIMD 1. In contrast, a higher proportion of deferred pupils (22%) were from SIMD 5 (20% least deprived areas in Scotland) than for all P1 pupils excluding deferrals which was 19%.

43. This analysis also indicates that the rate of deferral increases as the area deprivation of a pupil’s home postcode decreases for those with a birth date in January and February (the age group who are already entitled to funded ELC in a deferred year), whereas the rate is consistent across all SIMD levels for children with an August to December birth date (the age group that is not currently entitled to funded ELC in a deferred year).

44. In addition, deferred entry for pupils born in January and February increases as the area deprivation of the pupil’s home postcode decreases, from 35% in the 20% most deprived areas to 55% in the least deprived areas. For pupils born from August to December, the estimated rate of deferral was the same (4%) for pupils’ whose home postcode was in the least deprived and those from the most deprived areas. We do not have data on why this difference exists, however, evidence regarding parental awareness of the ELC expansion^[32] indicated that lower income households, single earners and those in the most deprived areas were less likely than others to be aware of the planned expansion in funded hours, therefore the difference in deferral rate for children who already have an automatic entitlement to ELC in the deferred year, could be related to parents in more deprived areas having less knowledge of their children’s funded ELC eligibility.

45. National and local government both have a role to play in making sure parents/carers are aware of their child’s funded ELC entitlement. Although there is no obligation for parents to take up their child’s ELC entitlement, it is important that all parents are aware of their children’s entitlement and can make an informed decision for their child. Before this Order commences, we will work with partners to develop a new page on Parentclub.scot^[33] with information about deferral, and ‘things to consider’ for parents and carers. We will also provide a PDF of this resource to local authorities, to share locally if required and to aid discussion with families (particularly those who are less likely to use online resources). We will also examine where other materials and resources could be made available, particularly working with local authorities that are already implementing this policy in part or in full.

Key Findings – potential effects on an island community which are significantly different from the effect on other communities

46. Evidence on deferral from the Scottish pupil census^[34] shows for pupils born in January and February, some of the highest deferral rates in 2018 were in Island authorities (or authorities with significant island communities, which are listed as relevant authorities that must have regard to Island communities in carrying out its functions^[35]): Shetland Islands (89%); and Orkney Islands (86%). Highland (64%) also had relatively high rates of deferral for this age group in 2018. The rate of deferral for pupils born in January and February for Scotland in 2018 was 44%.

47. North Ayrshire (25%), another island authority was one of the authorities with the lowest rates of deferral for pupils born in January and February. Deferral rates in the other island authorities for January and February were:

• Argyll and Bute Council (42%)
• Comhairle nan Eilean Siar (54%)

48. For pupils born from August to December, Orkney Islands (37%), Shetland Islands (17%) also had the highest deferral rates for Scotland. The rate of deferral for pupils born in from August to December for Scotland in 2018 was 4%. Deferral rates in remaining Island authorities for January and February were:

• Argyll and Bute Council (3%)
• Comhairle nan Eilean Siar (7%)
• Highland Council (8%)
• North Ayrshire Council (3%)

49. Data from the Scottish ELC census^[36], shows a similar pattern. As set out in Table 1, all island authorities, excluding North Ayrshire, have percentages of those eligible for deferred entry (i.e. children with a birth date between mid-August and February) registered for an additional year of funded ELC, higher than the overall proportion for Scotland:

Table 1: Percentage of those eligible for deferred entry by local authority, 2019

	Percentage of those eligible for deferred entry
Argyll and Bute Council	23%
Comhairle nan Eilean Siar	32%
Highland Council	27%
North Ayrshire Council	12%
Orkney Council	42%
Shetland Council	50%
Scotland	19%

Source: Scottish Government: Funded early learning and childcare statistics in Scotland

50. The current ELC census does not have data on the birth dates of the children registered for funded ELC to be able to distinguish whether this ELC place was funded by the Scottish Government, or funded by the local authority on a discretionary basis. We also do not have evidence on if, and at what rate families with a deferred child with a Aug-Dec birth date, self-funded an additional year of ELC. As the rate of deferral for Aug-Dec pupils who deferred entry to primary school in island communities is higher than the Scotland average, the Order could have a particularly positive impact on these families, particularly if many families in the current system are self-funding ELC in the deferred year for children in this age group.

51. Overall, the evidence indicates that under the current legislative framework, deferral rates for children in each age category in island communities in general, are higher than deferral rates in non-island communities. The evidence gathered does not indicate why this could be, however we are aware anecdotally, that there can be a distinct approach to deferral in island communities, due to parental concerns about how old children will be when they complete schooling and leave home.

52. The nature of ELC and childcare provision in island communities (and other remote and rural communities) varies from provision in more populous areas. Settings are typically smaller and face higher operating costs due to smaller numbers of children. For ELC, childminding, third sector and local authority-run provision tend to be more prevalent than private settings^[37].

53. It is difficult to predict the parental response, and subsequent uptake of funded ELC in a deferred year by children with August-December birth dates, once this policy commences. If there is a particularly sharp rise in deferral rates and ELC uptake by these children once the new duty commences, local authorities could face capacity issues, and if these challenges arise, they could be particularly acute in an island authority due to the nature of ELC and childcare provision in an island context with a small population and where settings typically rely on a smaller workforce.

54. The extent to which local authorities are able to flex to meet any capacity issues that may arise is likely to be a key concern for island communities, particularly if they have fewer private ELC settings as funded providers to create additional capacity.

55. We have been working with island authorities and other stakeholders to consider implementation of the policy and we plan to continue to work with them to consider any further learning e.g. from authorities that are already delivering this policy in part or in full, or those who adopt the policy in advance of August 2023 as a result of local policy decisions. This will provide us with the opportunity to further explore any effects this policy could have on an island community which is significantly different from the effect on other communities.