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
Eligible 2 year olds

Eligible 2 year olds

Rationale behind the policy

38. Evidence from both UK and international evaluations and studies of early learning and childcare programmes[6] support the fact that all children, and especially those facing the most disadvantage, can benefit in terms of social, emotional and educational outcomes from attending high quality early learning and childcare.

39. This is the basis for the investment in early learning and childcare for all 3 and 4 year olds and eligible 2 year olds. The specific link to improved outcomes for those children facing the most socio-economic disadvantage is the rationale for targeting investment in early access to high quality childcare for eligible 2 year olds.

40. Eligibility for funded early learning and childcare entitlement for 2 year olds is set out under Section 47(3) of the 2014 Act (for looked after children, children in kinship care and those with a parent-appointed guardian) and in the 2014 Order (for those on qualifying benefits).

41. In addition, there are circumstances when the Scottish Government and COSLA can agree a national approach to using education authorities' discretionary early learning and childcare powers, to offer additional early learning and childcare over and above the statutory entitlement, to certain children. The policy to extend early learning and childcare eligibility to 2 year olds with a care experienced parent has been brought in through this route. We have also previously used this approach to bring in new income thresholds for those on qualifying benefits in advance of regulations being approved by the Scottish Parliament. This process is normally only used temporarily, until legislation can be amended. The latest eligibility criteria are made available on mygov.scot and the Knowledge Hub and the Scottish Government will also communicate directly with education authorities and the wider sector when there are any changes to eligibility.

Looked after children, kinship care and guardianship orders

42. Section 47(3) of the 2014 Act provides that any child who is aged 2 or over and is or has at any time since their second birthday been looked after[7], is the subject of a kinship care order, or who has or has had a guardian by virtue of an appointment under section 7 of the 1995 Act (a parent-appointed guardian), is an eligible child entitled to funded early learning and childcare. As such, they remain eligible for the full funded early learning and childcare entitlement regardless of whether they remain looked after or not. Further detail on 2 year olds who are looked after, including arrangements to meet wellbeing needs, is outlined in this document in the guidance on section 49 of the 2014 Act.

43. Under section 47(4) of the 2014 Act, Scottish Ministers can specify that the children defined as eligible under section 47(3) of the 2014 Act (those who were entitled as 2 year olds where they were looked after, under a kinship care order, or with a parent appointed guardian) are no longer entitled to funded early learning and childcare once they reach school starting age. The 2014 Order[8] makes the same provision for stopping those children from receiving funded early learning and childcare as for all other children.

Two year olds with a care experienced parent

44. From August 2021, the 2019 Programme for Government commitment to extend eligibility of the provision of funded early learning and childcare for 2 year olds who have a care experienced parent commences. Until such a time when legislation is put in place, education authorities should use their discretionary powers under section 1(1C) of the 1980 Act to provide places to 2 year olds who have a parent who has experience of care. We encourage the use of a wide definition of 'care experience', which is in line with the findings of The Independent Care Review, published in The Promise; alongside a pragmatic and sensitive approach to establishing eligibility.

Parents in receipt of qualifying benefits

45. Under the 2014 Order, 2 year olds from households where a parent is in receipt of certain benefits are eligible from the first term after their second birthday; or, the first term after the parent starts receiving those benefits.

46. Education authorities may use their discretionary powers under section 1(1C) of the 1980 Act to provide earlier access to these eligible children, for example to provide access from their 2nd birthday.

47. All 2 year olds who have gained eligibility will remain eligible and entitled to funded early learning and childcare until the child's stopping date in relation to starting school, regardless of whether:

a) a parent's circumstances change from the initial qualifying criteria;

b) the parent in their household remains on those benefits or not.

48. The 2014 Order may be subject to further amendments (including income thresholds for certain benefits which may vary annually). A list of the current eligibility criteria can be found on the mygov website.

Use of discretionary powers for 2 year olds

49. One example of how some education authorities use their discretionary powers under section 1(1C) of the 1980 Act, is to widen local eligibility criteria for 2 year old children who would not otherwise be eligible and are homeless; or to 2 year olds whose mothers have been part of the Family Nurse Partnership Programme.

50. There are a range of benefits that are now available to families in Scotland that have a degree of overlap with eligibility criteria for the 2 year old entitlement. For example, eligibility criteria for Best Start Foods have been based on eligibility for the 2 year old early learning and childcare entitlement and so education authorities may use their discretionary powers to accept receipt of this benefit as a passport to eligibility. Other benefits, such as Best Start Grant and Scottish Child Payment have wider eligibility criteria than the early learning and childcare entitlement. Education authorities may decide to use their discretionary powers to offer additional early learning and childcare, to children whose families are in receipt of these benefits, before they are eligible to the funded early learning and childcare entitlement, or may choose to include a similar income threshold as that in place for the 2 year old criteria for those in receipt of Universal Credit and Working Tax Credits.

51. Scottish Government communications for the Best Start benefits have included information on the 2 year old early learning and childcare entitlement to raise awareness of the offer. Education authorities may wish to make these connections in communications locally too.

Promoting the entitlement

52. As uptake of the funded early learning and childcare entitlement is not compulsory, and depends upon parents taking up a place for their child, education authorities and all agencies and services working with families have a crucial role in identifying eligible families and building relationships to provide reassurance to families and promote the benefits to children and families of the entitlement. This may be through:

  • Working collaboratively with local services who are well connected with eligible families, such as promoting the entitlement through health and social work staff, local community groups and third sector services.
  • Making connections with other departments of the local authority e.g. housing and council tax to raise awareness internally.
  • Ensuring local early learning and childcare providers, are kept up to date on processes for applying for places.
  • Providing support to families and workers with application processes and making administrative processes as simple and streamlined as possible.
  • Ensuring local offers meet the needs of local families by ensuring eligible families are represented in local consultations on provision.
  • Considering how the 2 year old offer can be cross-promoted with other local and national entitlements e.g. Best Start Grant and Best Start Food.

Contact

Email: ELCPartnershipForum@gov.scot