The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014

Made: 11th August 2014

Laid before Parliament: 14th August 2014

Coming into force: 8th September 2014

The Secretary of State for Education makes the following Regulations in exercise of the powers conferred by sections 7, 7A, 9A and 104(2) of the Childcare Act 2006[^f00001].

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014 and come into force on 8th September 2014.

• (2) In these Regulations—

• “the 2006 Act” means the Childcare Act 2006;

• “Chief Inspector” means His Majesty’s Chief Inspector of Education, Children’s Services and Skills;

• “early years childminder” means a person registered as—an early years childminder with domestic premises under section 37(1) or 37A(1) of the 2006 Act;an early years childminder without domestic premises under section 37(2A) or 37A(1A) of the 2006 Act;an early years provider other than a childminder under section 37(2) or 37A(2) of the 2006 Act in respect of early years provision which would be early years childminding, at least some or all of which is on domestic premises, but for section 96(5) of the Act

• “early years childminder agency” has the meaning given by section 98(1) of the 2006 Act[^f00002];

• ...

• “early years provider” has the meaning given by section 96(3) of the 2006 Act;

• ...

• “eligible child” means a young child— whose parent is entitled to any one or more of the following— ...the guaranteed element of state pension credit under the State Pension Credit Act 2002;income-based jobseekers’ allowance under the Jobseekers Act 1995;income-related employment and support allowance under the Welfare Reform Act 2007;income support under the Social Security and Contributions Act 1992;support under Part VI of the Immigration and Asylum Act 1999;universal credit where that parent had, in the relevant assessment period, earned income not exceeding the applicable amount;.........for whom an EHC plan is prepared under section 37 of the Children and Families Act 2014 (education, health and care plans)[^f00011]who is entitled to disability living allowance under section 71 of the Social Security Contributions and Benefits Act 1992[^f00012]; who is— currently looked after by a local authority in England within the meaning given by section 22(1) of the Children Act 1989; orcurrently looked after by a local authority in Wales within the meaning given by section 74(1) of the Social Services and Well-being (Wales) Act 2014; or who has previously been—looked after by a local authority in England within the meaning given by section 22(1) of the Children Act 1989; orlooked after by a local authority in Wales within the meaning given by section 74(1) of the Social Services and Well-being (Wales) Act 2014,and is no longer so looked after as a result of the making of one of the following orders—an adoption order within the meaning given by section 46(1) of the Adoption and Children Act 2002;a special guardianship order within the meaning given by section 14A(1) of the Children Act 1989;a child arrangements order within the meaning given by section 8(1) of the Children Act 1989 which consists of, or includes, arrangements relating to when the child is to live with any person or with whom the child is to live or both of those things;

• “inspection report” means—in relation to an early years childminder agency, a report under section 51E of the 2006 Act,in relation to an early years provider, a report under—section 5 of the Education Act 2005,section 50 of the 2006 Act, orsection 109 of the Education and Skills Act 2008;

• “term” means a term the dates of which have been set under section 32 of the Education Act 2002[^f00017].

• “universal credit” means the benefit payable in accordance with Part 1 of the Welfare Reform Act 2012.

• (3) For the purposes of paragraph (a)(vii) of the definition of an eligible child—

• (a) “earned income” means income for the purposes of Chapter 2 of Part 6 of the Universal Credit Regulations 2013;

• (b) the relevant assessment period and the applicable amount are those referred to in paragraphs (4) to (6) as applicable;

• (c) where the parent is—

• (i) a member of a couple who have jointly made a claim for, and are entitled to, universal credit; or

• (ii) a member of a couple but has claimed, and is entitled to, universal credit as a single person,

references to applicable amounts in paragraphs (4) to (6) as applicable are to be read as references to the combined income of the couple.

• (4) Except where paragraphs (5) or (6) apply, where the parent had earned income which did not exceed £1,283.34 in the universal credit assessment period immediately preceding the date of the request for early years provision (period 1)—

• (a) the relevant assessment period is period 1; and

• (b) the applicable amount is £1,283.34.

• (5) This paragraph applies where paragraph (4) does not because the applicable amount referred to in that paragraph is exceeded and there is a universal credit assessment period (period 2) immediately preceding period 1 referred to in that paragraph—

• (a) the relevant assessment period is the sum of period 1 and period 2 (SAP); and

• (b) the applicable amount is £2,566.67.

• (6) This paragraph applies where paragraph (5) does not because the applicable amount referred to in that paragraph is exceeded and there is a universal credit assessment period (period 3) immediately preceding period 2 referred to in that paragraph—

• (a) the relevant assessment period is the period made up of SAP and period 3; and

• (b) the applicable amount is £3,850.

Prescribed early years provision

2

• (1) The prescribed early years provision for the purposes of section 7(1) of the 2006 Act (duty to secure early years provision free of charge) is early years provision that is provided by an early years provider, other than an excluded provider, to whom section 40 of the 2006 Act (duty to implement Early Years Foundation Stage) applies.

• (2) In paragraph (1), an “excluded provider” is —

• (a) an independent school (other than an Academy within the meaning of section 1A of the Academies Act 2010[^f00018]) which does not meet the standards prescribed under section 157(1) of the Education Act 2002 in relation to the spiritual, moral, social and cultural development of pupils at the school; or

• (b) an early years provider in relation to whom the local authority has reasonable grounds to believe—

• (i) does not actively promote the fundamental British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs; or

• (ii) promotes as evidence-based views or theories which are contrary to established scientific or historical evidence and explanations.

Prescribed description of a young child

3

• (1) For the purposes of section 7(1)(b) of the 2006 Act, a young child is of a prescribed description if the young child meets the conditions in paragraphs (2) or (3).

• (2) The condition is that the young child—

• (a) has attained the age of two years at the start of the term beginning on or following the date in paragraph (4); and

• (b) is an eligible child on or after the date in paragraph (4) applicable to the child in question.

• (3) The condition is that the young child has attained the age of three years at the start of the term beginning on or following the date in paragraph (4).

• (4) The date is—

• (a) in the case of a child who was born in the period 1st January to 31st March, 1st April following the child’s birthday;

• (b) in the case of a child who was born in the period 1st April to 31st August, 1st September following the child’s birthday;

• (c) in the case of a child who was born in the period 1st September to 31st December, 1st January following the child’s birthday.

Availability of early years provision

4

• (1) For the purposes of section 7(1) of the 2006 Act, an English local authority must secure that the prescribed early years provision is available for each young child for a period of 570 hours in any year and during no fewer than 38 weeks in any year.

• (2) For the purposes of paragraph (1) and subject to paragraph (3), the first year commences on the date in regulation 3(4) applicable to the child in question, and subsequent years commence on the anniversary of that date.

• (3) Where a young child becomes an eligible child on a date after the date in regulation 3(4) applicable to the child in question, the first year commences on the date in regulation 3(4) next following the date on which the young child becomes an eligible child, and subsequent years commence on the anniversary of that date.

Requirement on local authority when discharging its duty under section 7 to secure early years provision free of charge

5

• (1) An English local authority must discharge its duty to a young child under section 7 of the 2006 Act by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision to which the child is entitled in cases where—

• (a) the early years provider is willing to provide it, and

• (b) the early years provider is also willing to accept—

• (i) any terms as to the payments which would be made to him or her in respect of the provision, and

• (ii) any requirements which would be imposed in respect of it.

• (2) The requirement in regulation 5(1) applies subject to regulation 6.

Scope of the requirement in regulation 5(1)

6

• (1) The requirement in regulation 5(1) does not apply if the early years provider is any of the following—

• (a) a provider (other than an early years childminder registered with an early years childminder agency) that is awarded a specified grade in its most recent inspection report,

• (b) an early years childminder registered with an early years childminder agency where—

• (i) the agency is awarded a grade of “ineffective” in its most recent inspection report, or

• (ii) the agency notifies the local authority that, in its reasonable opinion, the childminder has ceased to provide childcare of satisfactory quality,

• (c) a provider the local authority has grounds to believe would not be able to satisfy a requirement the authority would impose if arrangements were made.

• (2) In this regulation, “specified grade” means, in relation to an inspection specified in the first column of the table in the Schedule and conducted on a date in the corresponding entry in the second column—

• (a) where the early years provision is for a child who meets the condition in regulation 3(2) but does not meet the condition in regulation 3(3), any of the grades specified in the corresponding entry in the third column of the table,

• (b) where the early years provision is for a child who meets the condition in regulation 3(3), any of the grades specified in the corresponding entry in the fourth column of the table.

Termination of the arrangements

7

Except in the case of arrangements with the governing body of a maintained school, arrangements made by the local authority for the purpose of complying with the requirement in regulation 5(1) must include provision allowing the local authority to terminate the arrangements if the early years provider with whom the arrangements are made becomes a provider mentioned in regulation 6(1)(a) or (b).

Requirements governing arrangements made for the purpose of discharging the duty of the local authority under section 7

8

• (1) In making arrangements for the purpose of discharging its duty under section 7 of the 2006 Act with an early years provider (other than the governing body of a maintained school), or with an early years childminder agency, a local authority may impose on the person with whom the arrangements are made only requirements which—

• (a) enable the local authority to comply with the requirement in regulation 5(1);

• (b) enable the local authority to terminate the arrangements made pursuant to the requirement in regulation 5(1), in the circumstances prescribed in regulation 7;

• (c) have as their purpose the satisfaction of one of the following objectives—

• (i) that the early years provision is provided free of charge;

• (ii) that the early years provision is provided in a pattern to suit the needs of the parents of the children for whom the early years provision is provided;

• (iii) that any financial assistance provided by a local authority under the arrangements is used properly and in accordance with the arrangements;

• (iv) the meeting of the needs of disabled children (within the meaning given by section 6 of the Equality Act 2010[^f00019]) and children with special educational needs (within the meaning given by section 20(1) of the Children and Families Act 2014)[^f00020] for whom the early years provision is provided;

• (v) the effective safeguarding and promotion of welfare of the children for whom the early years provision is provided;

• (vi) the active promotion of the fundamental British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs;

• (vii) that views or theories which are contrary to established scientific or historical evidence and explanations are not promoted as evidence-based in the early years provision;

• (viii) where the early years provider is awarded a specified grade in its most recent inspection report, that the provider takes the measures identified in that report to improve the effectiveness of the provision, including, where applicable, participation in a training or other quality improvement programme; or

• (d) are otherwise necessary for the effective administration of the arrangements.

• (2) But a local authority may not impose requirements which—

• (a) where the arrangements are made with an early years provider—

• (i) subject the quality of the early years provision to a quality assessment process by the local authority; or

• (ii) require the provider to attend any training or other quality improvement programme, other than any training or quality improvement programme identified in an ... inspection report as a measure necessary for the improvement of the early years provision, ...

• (b) where the arrangements are made with an early years childminder agency, subject the quality of the services provided by the childminder agency to a quality assessment process by the local authority.

• (3) In this regulation, “specified grade” means, in relation to an inspection specified in the first column of the table in the Schedule and conducted on a date in the corresponding entry in the second column, any of the grades specified in the corresponding entry in the third column of the table (irrespective of whether the provision is for a child who meets the condition in regulation 3(2) or 3(3)).

Revocations

9

The following are revoked—

• (a) the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2013[^f00021]; and

• (b) the Local Authority (Duty to Secure Early Years Provision Free of Charge) (Amendment) Regulations 2014[^f00022].

Signed

John Nash — Parliamentary Under Secretary of State — Department for Education — 11th August 2014

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

Section 7 of the Childcare Act 2006 (“the 2006 Act”) places a duty on an English local authority to secure early years provision to a young child in its area, free of charge, and in accordance with regulations.

Regulation 2 of these Regulations prescribes the early years provision which an English local authority must secure free of charge. Regulation 3 prescribes the description of children for whom an English local authority must ensure prescribed early years provision is available free of charge. Regulation 4 sets out the amount of free prescribed early years provision which an English local authority must make available.

Section 7A of the 2006 Act makes provision for regulations to require an English local authority to discharge its duty to a young child under section 7 by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision to which the child is entitled in cases where the early years provider is willing to provide the provision, and to accept the terms of the local authority imposed in respect of the provision.

Regulation 5 of these Regulations imposes that requirement. The requirement in regulation 5 is subject to regulation 6, which describes the kind of early years provider and the kind of early years provision which fall within the scope of the requirement. Regulation 7 sets out the circumstances in which the arrangements may be terminated.

Section 9A of the 2006 Act makes provision for regulations to prescribe requirements which may, or may not, be imposed in arrangements made by an English local authority for the purpose of discharging its duty under section 7. Regulation 8(1) prescribes the requirements which may be imposed, and regulation 8(2) prescribes the requirements which may not be imposed.

Regulation 9 revokes the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2013 and amending regulations.

An Impact Assessment has not been produced for this instrument as no, or no significant, impact on the private or voluntary sectors is foreseen.

Footnotes

[^f00001]: 2006 c.21. Section 7 was substituted by section 1(2) of the Education Act 2011 (c.21). Sections 7A and 9A were inserted by section 87 of the Children and Families Act 2014 (c.6). See section 106 for the definitions of “prescribed” and “regulations”.

[^f00002]: The definition of “early years childminder agency” was inserted into section 98(1) by paragraph 82 of Schedule 4 to the Children and Families Act 2014.

[^f00011]: 2014 c.6.