The Childcare (Early Years Provision Free of Charge) (Extended Entitlement) Regulations 2016

PART 4Local authorities’ duty to secure early years provision

Duty to secure early years provision free of charge

33.  An English local authority must secure that the early years provision described in regulation 34 is available on the basis described in regulations 35 and 36 free of charge for each child in the authority’s area who is a qualifying child of working parents.

Nature of early years provision

34.—(1) The early years provision referred to in regulation 33 is early years provision that is provided by an early years provider, other than an excluded provider, to whom section 40 of the Childcare Act 2006(1) (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(2)) which does not meet the standards prescribed under section 157(1) of the Education Act 2002(3) in relation to the spiritual, moral, social and cultural development of pupils at the school;

(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.

Availability of early years provision

35.—(1) The provision must be available 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 section 1(1) of the Act, the first year commences on the date specified in paragraph (3) applicable to the child in question, and subsequent years commence on the anniversary of that date.

(3) The date is—

(a)1st April following the later of—

(i)the date of a child’s third birthday; and

(ii)the date on which the determination in paragraph (4) in respect of that child is made,

where the later of those two dates is in the period 1st January to 31st March;

(b)1st September following the later of—

(i)the date of a child’s third birthday; and

(ii)the date on which the determination in paragraph (4) in respect of that child is made,

where the later of those two dates is in the period 1st April to 31st August;

(c)1st January following the later of—

(i)the date of a child’s third birthday; and

(ii)the date on which the determination in paragraph (4) in respect of that child is made,

where the later of those two dates is in the period 1st September to 31st December.

(4) For the purposes of paragraph (3), “the determination” is the first determination that the criteria in section 1(2)(b), (c) and (d) of the Act are met in relation to a child made by—

(a)the Commissioners under regulation 17 or 21(6)(c); or

(b)the Tribunal under regulation 24(4).

Requirement on local authority when discharging its duty under regulation 33

36.—(1) A local authority must discharge its duty under regulation 33 by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision in cases where—

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

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

(i)any terms as to the payments which would be made to the provider in respect of the provision, and

(ii)any requirements which would be imposed by the local authority in accordance with regulation 38.

(2) In the case of early years provision other than by an early years childminder registered with an early years childminder agency, the requirement in paragraph (1) applies only if the provider is not the governing body of a maintained school, and—

(a)the overall effectiveness of the provision by the provider was awarded a grade of “satisfactory”, or “requires improvement”, or better, in the most recent early years provision inspection report published in respect of the provision; or

(b)an early years provision inspection report has not yet been published in respect of the provision.

(3) In the case of early years provision by an early years childminder registered with an early years childminder agency, the requirement in paragraph (1) applies only if—

(a)the childminder is registered with an agency which was awarded a grade of “effective” in the most recent early years childminder agency inspection report published in respect of the agency; or

(b)an early years childminder agency inspection report has not yet been published in respect of the agency.

(4) The requirement in paragraph (1) does not apply where—

(a)the local authority has reasonable grounds to believe that the person with whom the arrangements referred to in paragraph (1) are intended to be made is not able to satisfy a requirement imposed in respect of the early years provision; or

(b)in the case of early years provision by an early years childminder registered with an early years childminder agency, the early years childminder agency has notified the local authority that, in the reasonable opinion of the agency, the provision by the early years childminder registered with the agency is not of satisfactory quality.

(5) In this regulation “early years childminder agency inspection report” means a report under section 51E of the Childcare Act 2006(4).

Arrangements between local authorities and early years providers: termination

37.  Arrangements made by the local authority for the purpose of complying with the requirement in regulation 36(1) must include provision allowing the local authority to terminate the arrangements if—

(a)in the case of early years provision of the description in regulation 36(2)(a), the overall effectiveness of the provision ceases to meet that description;

(b)in the case of early years provision of the description in regulation 36(2)(b), an early years provision inspection report is subsequently published in respect of the provision and the overall effectiveness of the provision by the provider is not awarded a grade of “satisfactory”, or “requires improvement”, or better;

(c)in the case of early years provision provided by a childminder registered with an early years childminder agency of the description in regulation 36(3)(a), the agency ceases to meet that description;

(d)in the case of early years provision provided by a childminder registered with an early years childminder agency of the description in regulation 36(3)(b), an early years childminder agency inspection report is published in respect of the agency and the agency is not awarded a grade of “effective”;

(e)in the case of early years provision by an early years childminder registered with an early years childminder agency, the early years childminder agency has notified the local authority that, in the reasonable opinion of the agency, the provision by the early years childminder registered with the agency is not of satisfactory quality.

Arrangements between local authorities and early years providers: requirements

38.—(1) In making arrangements for the purposes of discharging its duty under regulation 33 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 36(1);

(b)enable the local authority to terminate the arrangements made pursuant to the requirement in regulation 36(1), in the circumstances prescribed in regulation 37;

(c)have as their purpose the satisfaction of any 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(5)) and children with special educational needs (within the meaning given by section 20(1) of the Children and Families Act 2014(6)) 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)in circumstances where an early years provision inspection report awards a grade of less than “good” to the overall effectiveness of the early years provision, that the early years provider takes the measures identified in that report as necessary to improve the overall effectiveness of the early years 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 accordance with paragraph (1)(c)(viii);

(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.

Having regard to guidance

39.  In discharging its duty under regulation 33 a local authority must have regard to any guidance given from time to time by the Secretary of State.