Publication - Advice and guidance

Early learning and childcare: statutory guidance - July 2021

Published: 13 Jul 2021

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 2021.

Early learning and childcare: statutory guidance - July 2021
Footnotes

Footnotes

1. Reynolds AJ et al: Long-term Effects of an Early Childhood Intervention on Educational Achievement and Juvenile Arrest: A 15-Year Follow-Up of Low-income Children in Public Schools. The Journal of the American Medical Association; 2001.

2. Information on the implementation of Funding Follows the Child and the National Standard for Early Learning and Childcare Providers, including detailed Operating Guidance for education authorities and providers, is available on the Scottish Government website.

3. The Bill contains provision which will mean it will automatically commence 6 months from Royal Assent. It also contains powers for the Bill to be commenced earlier than 6 months from Royal Assent.

4. The immigration status or nationality of the parent or child is not normally relevant to eligibility for this entitlement. However, certain immigration conditions might impact on entitlement to qualifying benefits and in turn affect eligibility for some 2-year olds. Education authorities still have power to provide discretionary early learning and childcare under section 1(1C) of the 1980 Act.

5. 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.

6. Rapid evidence review: Childcare quality & children's outcomes - Publications - Public Health Scotland

7. 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.

8. Article 3 of the Provision of Early Learning and Childcare (Specified Children) (Scotland) Order 2014. As set out in paragraph 36, an amendment to the 2014 Order will come into force from 1st August 2023 - this will revoke Article 3.

9. 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.

10. The Provision of Early Learning and Childcare (Specified Children) (Scotland) Amendment Order 2021.

11. 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".

12. In exceptional circumstances, an education authority may consider that a further year in early learning and childcare would be more appropriate than providing the child with education in primary school. Further information is outlined in paragraphs 77 and 78.

13. 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".

14. In exceptional circumstances, an education authority may consider that a further year in early learning and childcare would be more appropriate than providing the child with education in primary school. Further information is outlined in paragraphs 77 and 78.

15. 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.

16. For children with a birth date on or between 1 March and the school commencement date, there could also be exceptional circumstances, when an education authority considers that a further year in early learning and childcare would be more appropriate than providing a child with education in primary school. In these circumstances, the education authority can use their powers under section 1(1C) of the 1980 Act, to provide discretionary funded early learning and childcare. Further information is outlined in paragraphs 77 and 78.

17. Parents of school age children can choose to not send their child to school, but only where they intend to home educate the child. Section 30(1) of the 1980 Act sets out that it is the responsibility of the parent of every child of school age to provide their child with a suitable education either by causing them to attend a public school or by other means. While most parents fulfil their responsibility to provide education by sending their children to school, others choose to provide home-based education.

18. Under Section 1(1C) of the 1980 Act, an education authority has the power to provide school education (which includes early learning and childcare) to pre-school children as they see fit. Section 1(4B) of the 1980 Act provides that, for the purposes of section 1 of the 1980 Act, "pre-school children" means children under school age who have not yet started school and children who are of school age but who haven't started school.

19. Section 28(1) of the 1980 Act provides that in providing school education (which includes early learning and childcare) the education authority shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents.

20. The Children and Young People (Scotland) Act 2014 (Modification) Order 2021 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 2021.

21. 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 the 1995 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);

(c) who is subject to an order in accordance with which, by virtue of regulations made under section 33(1) of the 1995 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

(d) 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.

22. Part 5 of the 2014 Act has not been fully commenced. The Scottish Government intends to seek to repeal Part 5 of the 2014 Act which made provision for a statutory Child's Plan; however a child's plan continues to be best practice under Getting it right for every child.

23. Protected characteristics are defined under the Equality Act 2010 as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

24. 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. See the guidance on meeting the Fairer Scotland Duty.

25. 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.

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

27. See Section 20 of the Equality Act 2010

28. See Section 22 of, and Schedule 2 to, the 2004 Act.

29. 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.

30. Schools General (Scotland) Regulations 1975.

31. Principles of effective transitions are set out in a sector-wide position statement published in 2019.

32. Information on the implementation of Funding Follows the Child and the National Standard for Early Learning and Childcare Providers, including detailed Operating Guidance for education authorities and providers, is available on the Scottish Government website.

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

34. 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 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 2014 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 2014 Act defines "early learning and childcare" as having the same meaning as in Part 6 of the 2014 Act.

35. 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 2014 Act) defines "nursery class" as being a class which provides early learning and childcare.

36. "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 2014 Act means schools and classes which provide early learning and childcare.

37. Information on the implementation of Funding Follows the Child and the National Standard for Early Learning and Childcare Providers, including detailed Operating Guidance for education authorities and providers, is available on the Scottish Government website.

38. 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". "In need" is defined by section 93(4) of the 1995 Act.

39. The Bill contains provision which will mean it will automatically commence 6 months from Royal Assent. It also contains powers for the Bill to be commenced earlier than 6 months from Royal Assent.

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


Contact

Email: ELCPartnershipForum@gov.scot