Early learning and childcare statutory guidance: consultation

This consultation sets out updated Statutory Guidance to education authorities to support them in exercising their functions in relation to the delivery of early learning and childcare from 1 August 2020.


1 The Children and Young People (Scotland) Act 2014 (Modification) (No. 1) Order 2019 and the Children and Young People (Scotland) Act 2014 (Modification) (No. 2) Order 2019.

2 Funding Follows the Child and the National Standard for Early Learning and Childcare Providers: Principles and Practice provides an overview of the approach and can be found at: https://www.gov.scot/publications/funding-follows-child-national-standard-early-learning-childcare-providers-principles-practice/.

3 More information on Funding Follows the Child, including all supporting guidance and documentation, is available at: https://www.gov.scot/policies/early-education-and-care/national-standard-for-early-learning-and-childcare/.

4 https://www.mygov.scot/childcare-costs-help/when-funded-early-learning-and-childcare-can-start/ and


5 https://www.parentclub.scot/elc

6 ‘https://education.gov.scot/improvement/learning-resources/building-the-ambition/ (This document will be updated with ‘Realising the Ambition’ Education Scotland, January 2020.)

7 “the UNCRC” means the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989.

8 In terms of section 97(2) of the Act, “looked after” is to be construed in accordance with section 17(6) of the 1995 Act.

9 Article 3 of the Provision of Early Learning and Childcare (Specified Children) (Scotland) Order 2014

10 Each education authority fixes a date or dates for the commencement of attendance at primary schools in their area. This is referred to as the “school commencement date”.

11 Sections 31 and 32 of the 1980 Act provide that a child is of school age where the child has reached the age of 5 on the school commencement date set by the education authority (a date in August). Where the child has not reached 5 on that date, the child is deemed not to have reached statutory school age until the school commencement date next following the child’s 5th birthday. Where a child is not yet 5 at the school commencement date but will turn 5 before the ‘latest appropriate date’ set by the education authority (normally a date at the end of February), the authority can admit the child to start school in August before the child’s 5th birthday.

12 https://www.gov.scot/publications/girfec-national-practice-model/

13 https://www.gov.scot/publications/shanarri/

14 https://www.gov.scot/publications/guidance-scottish-schools-parental-involvement-act-2006/

15 https://www.gov.scot/publications/learning-together-scotlands-national-action-plan-parental-involvement-parental-engagement/

16 https://hub.careinspectorate.com/media/1459/building-the-ambition-national-practice-guidance-on-early.pdf

17 The Children and Young People (Scotland) Act 2014 (Modification) (No. 2) Order 2019 amended the mandatory amount of funded early learning and childcare defined in Section 48 from 600 hours to 1140 hours. This order came into force on 1 August 2020.

18 Under the 1995 Act, ‘day care’ is understood as “any form of care provided for children during the day, whether or not it is provided on a regular basis;”

19 Any reference in this Chapter of this Part to a child who is “looked after” by an education authority, is to a child—

(a) for whom they are providing accommodation under section 25 of this Act;

(b) who is subject to a compulsory supervision order or an interim compulsory supervision order and in respect of whom they are the implementation authority (within the meaning of the Children's Hearings (Scotland) Act 2011);

(d) who is subject to an order in accordance with which, by virtue of regulations made under section 33(1) of this Act or section 190 of the Children's Hearings (Scotland) Act 2011 (asp 1) (effect of Orders made out-with Scotland), they have responsibilities as respects the child; or

(e) in respect of whom a permanence order has, on an application by them under section 80 of the Adoption and Children (Scotland) Act 2007 (asp 4), been made and has not ceased to have effect.

20 Part 5 of the Children and Young People (Scotland) Act 2014 is not currently in force. The Scottish Government intends to seek to repeal Part 5 of the Children and Young People (Scotland) Act 2014 which made provision for a statutory Child’s Plan; however child’s plan continues to be best practice under Getting it right for every child.

21 http://www.voicescotland.org.uk/

22 Section 3B of the 2000 Act, imposes certain duties on education authorities when making and implementing strategic decisions affecting pupils experiencing inequalities of outcome as a result of socio-economic disadvantage. In addition, the Fairer Scotland Duty under section 1 of the Equality Act 2010, places a legal responsibility on education authorities to actively consider (have due regard' to) how they can reduce inequalities of outcome caused by socio-economic disadvantage, when making strategic decisions and a written assessment must be published showing how this has been done. Guidance on meeting the Fairer Scotland Duty can be found at https://www.gov.scot/publications/fairer-scotland-duty-interim-guidance-public-bodies/pages/2/

23 The public sector equality duty under section 149 in the Equality Act 2010 requires education authorities in exercising functions, to have 'due regard' to the need to: eliminate discrimination, harassment, victimisation; advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, education authorities must assess and review policies and practices against the needs mentioned under section 149 in the Equality Act 2010.

(2) https://www.gov.scot/publications/learning-together-scotlands-national-action-plan-parental-involvement-parental-engagement/

24 As set out in the United Nations Convention on the Rights of the Child: https://www.unicef.org/sites/default/files/2019-04/UN-Convention-Rights-Child-text.pdf

25 /publications/supporting-childrens-learning-statutory-guidance-education-additional-support-learning-scotland/

26 Section 23 of the 2004 Act.

27 /publications/supporting-childrens-learning-statutory-guidance-education-additional-support-learning-scotland/

28 Annex B including column 1 and notes

29 See section 5(2) and (3) of the 2004 Act.

30 Section 20 of the Equality Act 2010: http://www.legislation.gov.uk/ukpga/2010/15/section/20

31 2002 asp 12: http://www.legislation.gov.uk/asp/2002/12/contents

32 See section 22 of, and Schedule 2 to, the 2004 Act.

33 The Children and Young People (Scotland) Act 2014 (Modification) (No. 1) Order 2019 introduced the requirement that from 1 August 2019 a funded early learning and childcare session should be 10 hours or less; http://www.legislation.gov.uk/ssi/2019/206/contents/made

34 Schools General (Scotland) Regulations 1975.

35 https://www.gov.scot/publications/guidance-education-children-unable-attend-school-due-ill-health/pages/2/

36 Principles of effective transitions are set out in a sector-wide position statement published in 2019: https://earlyyearsscotland.org/Media/Docs/What's%20New/ScottishEarlyChildhoodChildrenandFamiliesTransitionsPositionStatementFinal_May2019.pdf

37 Subsection (1A) was inserted into section 66 of the Education (Scotland) Act 1980 by section 36 of the 2000 Act.

38 The Health and Social Care Standards came into force in April 2018 and can be found at: http://www.newcarestandards.scot/.

39 https://www.gov.scot/publications/funding-follows-child-national-standard-early-learning-childcare-providers-guidance-setting-sustainable-rates-august-2020/

40 Paragraph 1 of Schedule 1 to the 2010 Act refers to “school”; section 21(1)(a) of the 2010 Act defines “school” by reference to a public school as defined in section 135(1) of the Education (Scotland) Act 1980 (the 1980 Act); under that section “school” includes a “nursery school”. The definition of “nursery school” is contained in section 135(1) of the 1980 Act and was amended by the Act (paragraph 2(6)(b) of schedule 5) to define a nursery school as a school which provides early learning and childcare. Section 135(1) of the 1980 Act, as amended by paragraph 2(6)(a) of the Act defines “early learning and childcare” as having the same meaning as in Part 6 of the 2010 Act.

41 Paragraph 12 of Schedule 1 to the 2010 Act provides that “nursery class” is to be construed in accordance with section 135(1) of the 1980 Act. That section (as amended by paragraph 2(6)(b) of schedule 5 to the Act) defines “nursery class” as being a class which provides early learning and childcare.

42 https://www.gov.scot/publications/schools-consultation-scotland-act-2010-statutory-guidance/

43 https://www.gov.scot/publications/funding-follows-child-national-standard-early-learning-childcare-providers-transition-options-guidance-contracting/

44“Pupil” is defined in section 135(1) of the 1980 Act as meaning “a person of any age for whom education is or is required to be provided under the Act”; and “public school” means any school under the management of an education authority.; “school” means an institution for the provision of primary or secondary education or both primary or secondary education being a public school, a grant-aided school or an independent school, and includes a nursery school and a special school; and the expression “school” where used without qualification includes any such school or all such schools as the context may require. “Nursery school” and “nursery class” have the meanings assigned by section 1(5)(a)(i) of the 1980 Act which as amended by the Children & Young People (Scotland) Act 2014 means schools and classes which provide early learning and childcare.

45 The current version (at the time of this guidance being published) of Setting the Table is available at http://www.healthscotland.com/uploads/documents/30341-Setting%20the%20Table.pdf. Updated Setting the Table guidance is due to be published in September 2020.

46 https://www.mygov.scot/school-meals/

47 https://www.gov.scot/publications/funding-follows-child-national-standard-early-learning-childcare-providers-operating-guidance/

48 Scotland Act 2016, Section 27: http://www.legislation.gov.uk/ukpga/2016/11/section/27/enacted

49 https://www.spso.org.uk/

50 These are set out in the Section 70 (Procedure) (Scotland) Regulations 2017.


Email: elcstatutoryguidance@gov.scot

Back to top