Early learning and childcare - statutory guidance: consultation analysis

Analysis of responses to a public consultation on updated statutory guidance for early learning and childcare.

Executive Summary


The Scottish Government updated the Statutory Guidance for Early Learning and Childcare (ELC) to reflect changes in the overarching policy framework for the delivery of ELC since the guidance was first published in 2014 including legislative changes that were planned to come into effect from August 2020. A public consultation was conducted to elicit feedback on the revised Statutory Guidance in order to inform the development of the final version.

The final version was intended for publication by the end of May 2020, however the coronavirus (COVID-19) pandemic necessitated a delay to the statutory roll‑out to increase children's ELC entitlement from 600 to 1140 hours from August 2020. Full statutory roll out of 1140 hours is now planned for August 2021, and the final version of the Statutory Guidance is now planned for May 2021.

The consultation ran for 10.5 weeks, opening on 20 December 2019 and closing on 4 March 2020. It asked 5 questions, focussing mainly on the clarity and readability of the revised Guidance. A total of 194 substantive responses were received and included in the consultation data analysis. This included 132 responses from individuals and 62 responses from organisations.

Key Results

Impact on Understanding of the Legislation

The consultation asked two questions in relation to how well the Guidance helped respondents to understand the legislation relating to education authorities' functions in the delivery of ELC, and whether there were any specific aspects of the legislative framework that remained unclear.

Just under three quarters of respondents (73%) indicated that the Guidance had helped their understanding of the legislation, with organisations (81%) more likely to feel that the Guidance was helpful in this regard compared to individuals (69%).

Key areas that were considered to remain unclear or caused concern included:

  • the Guidance being subjective and open to interpretation, and specific ambiguity over how local authorities would/could implement provision;
  • the treatment of deferrals and, in particular, the availability of discretionary deferrals for children whose birthdays are between August and December. It was felt that the rationale for this was not clear/would be left to the discretion of each local authority[1];
  • the 'funding follows the child' aspect of the Guidance was either unclear, provided inconsistent messages, and/or did not match respondents experiences;
  • that the Guidance allowed local authorities to treat Private, Voluntary and Independent (PVI) providers differently compared to their own services;
  • that greater clarity may be required as to whether blended models of childcare would be possible;
  • a need to incorporate greater levels of accountability for both providers and local authorities;
  • greater clarity to be provided regarding childminders' abilities to charge retainer fees; and
  • a desire to allow childminders to care for family members within the ELC provision.

A few also suggested that the Guidance needed to better embed the rights of the child and the United Nations Convention on the Rights of the Child (UNCRC), as well as the Education (Additional Support for Learning) (Scotland) Act 2004 and Gaelic Medium Education provision.

Clarity of the Guidance

Again, the consultation asked two questions which sought feedback on the clarity and readability of the Draft Guidance, and any suggestions for improvements.

Around three quarters of those who responded (77%) indicated that they felt the Guidance was clear and readable. Again, organisations (85%) typically felt that the Guidance was clearer and more readable than individuals (73%).

Two key issues were identified by respondents in this respect:

  • Accessibility - issues with the Guidance were identified for and by lay persons, parents/carers and some ELC practitioners. It was felt that the use of jargon, 'legal speak', the length of the document, numerous references and lengthy definitions could make the Guidance less user friendly/accessible. It was suggested that the information should be prioritised using bullet points for key information; that legislative references be included in a table, as a footnote, hyperlink or bracketed text; and that a summary version may be beneficial.
  • Open to Interpretation - it was felt that much of the Guidance was open to interpretation by local authorities, which respondents expected would lead to differing approaches being adopted and maintained across the country.

Other Comments

The consultation asked one other question to allow respondents to provide any other comments they wished to make in relation to the Draft Guidance.

Some respondents (n=51) adopted a standard/campaign style response, highlighting seven issues largely relating to childminding, as follows:

  • ability to charge retainer fees (n=50);
  • local authority requirement to promote all partner providers equally (n=33);
  • models of ELC being offered by local authorities being too prescriptive and limited, and not flexible enough for parents/carers or modern childminding practices (n=33);
  • support for flexibility driven by demand from parents/carers/families (n=32);
  • support for blended care models and suggestions that local authorities should not be allowed to only offer single-provider models (n=34);
  • that support should be considered to allow childminders to provide their services to family members within the ELC provision (n=32); and
  • support for the commitment to play (n=25).

Other respondents raised similar concerns in relation to childminders, as well as perceptions that they were not fully considered and supported in the Guidance. There was also discussion of the potential challenges or loss of business which they perceived childminders may encounter as a result of the changes.

Again, concerns around deferrals were discussed, including a need for a more standard approach to be adopted, for parents/carers to be provided with more information on this and given a greater voice in the decision making process, and for the process to be more transparent and provide the opportunity for appeal. Similarly, respondents repeated the need for greater equality and fairness to be provided between all funded providers, including a need for equal promotion, equality in funding and access to funding for expansion/resources, considering PVI capacity before local authorities embark on expanding their own premises, and more effective consultation with PVI providers.

Support was expressed for blended models, while some were concerned that the desired level of flexibility may not be possible, and others reported a possible reduction in the number of hours that could be provided per day.

It was also suggested that the Guidance should be strengthened to ensure it could not be interpreted in a way that negatively impacted children living in poverty, and ensured that local authorities actively promoted and engaged with families. It was also felt that the Guidance should stress that it is not compulsory for families to take up all or any of their entitlement, and there should be no penalties for not utilising their full entitlement.


Overall, the consultation achieved a relatively high response rate, both in general and to each individual question posed. There was significant consistency in the issues discussed by respondents, both between questions and across respondent groups. Respondent feedback identified several key areas of concern, for parents/carers, PVI providers and local authorities, and provided some constructive suggestions which will help the Scottish Government to further improve the Guidance ahead of its publication.


Email: ELCProgrammeOffice@gov.scot

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