School age childcare - new legal definition: consultation analysis

4. Exemptions for services operating within certain time limits

The current definition of “day care of children” includes an exemption so that services running for fewer than two hours cannot register as a day care of children service. This means that they are not inspected by the Care Inspectorate and their staff cannot register with the Scottish Social Services Council (SSSC).

The consultation paper notes that during discussions the Scottish Government held with stakeholders, mixed views were expressed about whether it is helpful to have an exemption to regulation based on the number of hours of operation. The paper suggests that some services would welcome an exemption covering a longer time, which would have the effect of removing a large number of after school clubs out of regulation altogether. Other services are in favour of no exemption so that anybody offering a service to children must be registered. This is explored in greater detail through responses to this question.

Among those answering Q3, 63% expressed the view that a new definition for school age childcare should not include an exemption to regulation based on the number of hours a service operates for. A further 17% felt that the current exemption should be kept for services running for fewer than two hours, 13% felt there should be an exemption but for an increased number of hours, and 7% felt there should be an exemption for fewer hours.

Having no exemption was favoured by 63% of both individuals and organisations, with the current exemption the second most preferred option among both audiences. Having no exemption was favoured by at least half of each type of organisation, ranging from half (50%) of local authorities and 64% of childcare organisations, to three quarters (75%) of membership organisations.

Just under three quarters of respondents answered the open question. Most commonly, many respondents expressed the view that the exemption should be removed so that all services are subject to the same standards and to reduce inequalities. However, some respondents each called for the number of hours to be increased, reduced or to stay the same as the current exemption.

No exemption

In line with the closed question results, many respondents suggested the exemption be removed. Most of these respondents felt that all services offering childcare should be subject to the same independent regulatory oversight and safety standards. They felt this should be the case regardless of how long a service offered provision.

“Care is care no matter how long for. Every setting should be accountable.” - Childcare Organisation

Several other respondents felt the exemption should be removed as it led to inequalities among service providers.

“There's a need for parity across the board for all educational and daycare settings.” – Individual

Other criteria beyond the number of hours

Several respondents were unsure or provided other ideas and suggestions. Of these, some respondents felt that the exemption should not be based solely on hours, but rather on the type of service the organisation provides. For example, a few respondents highlighted community or voluntary organisations offering services for working parents who could not otherwise afford childcare. It was felt that such organisations may not be able to afford the costs that could be incurred if they are not exempt from regulation.

“Any exemptions should be based on proportional and risk-based criteria rather than time thresholds, to ensure consistency, quality, and protection for children and families.” - Childcare Organisation

“Childcare regulation should be based on how you care for children and not how long you care for them.” - Childcare Organisation

A few respondents recommended a ‘lighter touch’ approach where there is still oversight for shorter programmes, but not as much as for childcare services. One individual recommended regulation through the Care Inspectorate, but not a regulatory board.

“I understand there is an ongoing concern regarding leisure activities, but I would think this should fall under its own specific criteria. A way of potentially doing this is looking at the typical working day, so anything that looks to be providing childcare for parents to attend work/study etc between the hours of 7.30am and 6pm should fall under 'wrap around care'.” - Childcare Organisation

“Whilst this may seem reasonable, an exemption based purely on hours carries risk for the children involved, as quality and safeguarding concerns do not disappear simply because a service operates for fewer hours per week. Any exemption should be accompanied by a clear quality threshold or minimum standards framework, ensuring that even shorter-hours services uphold children's rights to safe, freely chosen play. An hours-based exemption without any quality baseline would be difficult to justify from a safety and wellbeing standpoint.” - Individual

A few others felt that if a service operated without parents also in attendance, then it should not be exempt from regulation. Frequency of attendance was another criterion a few respondents suggested for consideration, and one individual suggested that regulations should prohibit children from attending consecutive two-hour services with the same organisation.

Increase the hours for the exemption

Some respondents recommended increasing the hours for exemption. There was support among some of these respondents to extend the exemption to three hours daily, and two individuals recommended extending it to four hours. They thought this would benefit parents who may need extra time to get from work to pick up their children. An even greater number of hours being considered for exemption was mentioned by a few respondents. One example provided was for organisations that offer Breakfast and After School Clubs for the same children and families. They suggested that five hours of exemption would provide them with the time needed to accommodate the two services.

“Registering as a childcare provider is a lot of work, and if someone is just looking for their child to be cared for for a few hours, I don’t think that it’s necessary to be registered. I think 3 hours a day would give people the flexibility of doing after school care. This would be an extra hour on what the legislation is just now.” - Individual

A few other respondents noted an exemption could be particularly important for rural and remote communities where childcare or activity options may be more limited and travel times to and from work may be longer. Respondents also suggested that rural and island areas may have a shortage of staff, and the exemption allows them to work more effectively.

“After school clubs and breakfast clubs run for relatively short periods of time but still provide valuable support to families, particularly in rural and island communities where options are fewer and travel times can be longer. Applying full regulatory requirements to very short sessions can place a disproportionate administrative burden on providers and may discourage the delivery of these flexible, community-based services. A threshold of around 3.5 hours would provide a more appropriate balance. It would allow breakfast clubs and shorter after school sessions to operate with greater flexibility, while still maintaining expectations around safety and quality. At the same time, services operating for longer periods would remain within full regulatory oversight, ensuring appropriate standards for staffing, documentation, and care are met.” – Local Authority

Reduce hours for exemption

Reducing the number of exemption hours was mentioned by some respondents. This included recommendations to reduce the exemption to one or one and a half hours daily, to more clearly differentiate the different services which should be exempt. For example, respondents highlighted the benefits of certain hobby clubs or breakfast clubs that provide essential services for a shorter period of time. They also expressed the view that these services, which usually run for less than two hours, would not be able to function if the costs of regulation and hiring staff with qualifications were considered.

“A new definition of School Aged Childcare (SAC) should include an exemption from regulation; however, we believe the current threshold should be reduced from two hours to 1.5 hours. Many short-duration activity sessions, such as sports clubs, arts groups, or brief after-school programmes, do not operate as childcare and therefore should not be subject to full regulatory requirements. Reducing the exemption to 1.5 hours would provide a clearer distinction between genuine short-term activities and services that function as regular wraparound childcare. This would help ensure that children attending longer sessions receive the appropriate level of oversight, care, and nurture, while still protecting smaller or community-led groups from unnecessary regulatory burden. This approach strikes a balance between maintaining quality and safeguarding standards, while supporting accessibility and flexibility within local communities.” - Childcare Organisation

Keep the exemption the same as it is currently

Keeping the exemption at two hours was advocated by some respondents. They felt that increasing the regulatory pressures on some organisations could force closures for childcare services and activities. A few of these respondents noted a preference to try to close loopholes that were being exploited by some service providers.

“There is already a long‑standing exemption for services operating under two hours per week, and this has not created problems in the system. It exists for a practical reason: without it, very small or occasional sessions would be subject to full regulation, including qualifications, staffing ratios and inspection requirements, which would be disproportionate.” - Local Authority

A small number of respondents raised concerns about removing the exemption and the toll this could take on organisations that provide shorter-length services. These included increased costs associated with administration, staffing numbers, and qualifications.