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.

Section 49: Looked after 2 year olds: alternative arrangements to meet wellbeing needs

Section 49 of the 2014 Act provides that the duty to make available 1140 hours of early learning and childcare to every ‘eligible child’ can be disapplied for 2 year olds that have been looked after by an education authority where: an assessment of their needs has taken place and; alternative arrangements for their education and care are made that the authority considers more appropriate for the purposes of safeguarding or promoting the child's wellbeing.

67. Looked after children are defined in section 97(2) of the 2014 Act in accordance with section 17(6) of the 1995 Act[19].

68. Under section 47(2) of the 2014 Act, any 2 year old child who is looked after, or has been looked after at any point since their second birthday, is considered an ‘eligible child’ for the purposes of the duties on education authorities in relation to access to early learning and childcare. As such, they remain eligible for the full statutory entitlement of funded early learning and childcare regardless of whether they remain looked after or not.

69. The purpose of section 49 of the 2014 Act is to provide increased flexibility in the type of service education authorities can make available for the education and care of 2 year olds who are (or have been since their second birthday) looked after.

70. Where an assessment of needs has been made (to consider whether alternative arrangements for the child’s education and care would better safeguard or promote the child’s wellbeing than access to ‘early learning and childcare’), then the education authority does not need to comply with the duty to provide access to early learning and childcare.

71. If it decides it is appropriate for the duty (under Section 47 of the 2014 Act) not to apply to a child, an authority must make alternative arrangements appropriate to safeguard or promote the child’s wellbeing. Appropriate alternative arrangements are not further defined in the 2014 Act.

72. Where there is an assessment of wellbeing, it must be undertaken with reference to the 8 wellbeing indicators described within Part 18, section 96 of the 2014 Act.

73. The assessment and recording of outcomes in a child’s plan will ensure that there are considered and transparent reasons to support the decision making on alternative arrangements made under section 49(2)(b) of the 2014 Act as good practice.[20]


Email: elcstatutoryguidance@gov.scot

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