DfE updates operational guidance on 30 hours of ‘free’ childcare while evaluation report shows mixed results for early implementation pilot
Chris Hook
Experienced commercial lawyer specialising in the charity, education and sport sectors
20 August 2017
Last month the Department for Education published updated operational guidance for local authorities and providers on early years entitlements, including 30 hours of ‘free’ childcare, which comes into effect in September. On the same day it also published its long-awaited report into the early implementation areas. But some key issues remain unresolved.
Updated operational guidance
Last week the Department for Education (“DfE”) published updated operational guidance for local authorities and providers on early years entitlement, including 30 hours of ‘free’ childcare, which comes into effect in September.
Following feedback the updated guidance contains more detail about the local authority audit process and eligibility for 30 ‘free’ hours. In addition, the guidance – now some 60 pages long – has an updated section on charging models. There is now a presumptions that parents should expect to pay for meals, other consumables (e.g. nappies) or additional activities (e.g. trips). Nonetheless, as with the previous guidance, these charges must be voluntary and providers must give “alternative options” to parents who cannot or do not wish to pay (e.g. a packed lunch).
The updated guidance makes clear that private, voluntary and independent providers are free to set their own admission criteria (subject to the non-discrimination requirements of the Equality Act 2010). Nonetheless, all parents should have the same rights to access a free entitlement place regardless of whether they choose to pay for additional hours of provision, additional activities or meals.
In addition, while the child continues to take up the 30 hours’ entitlement, there should be no restrictions on that place (e.g. parents should not have to reserve a place each term). Providers should ensure that their admissions information is clear and accessible for parents.
Furthermore, the guidance now makes clear that provider can charge a refundable deposit for free entitlement places to give assurance to providers that the parent will take up the place (or, if not, the provider may retain the deposit). Providers should also ensure they have clear invoicing structures in place for parents.
The guidance also stresses the need for providers to have a written agreement with parents that take up a free entitlement place (and DfE has produced a sample agreement at Annex A of the Model Agreement).
Evaluation into early implementation pilot
On the same day DfE published its long-awaited independent evaluation of early implementation of 30 hours free childcare.
In September 2016 eight local authorities in England commenced delivery of 30 hours of ‘free’ childcare to approximately 5,000 children. The report was clear that the scheme was not yet working for the benefit of providers or parents. Forty per cent of providers, for example, reporting a fall in profits despite many increase their occupancy rates. There seems little doubt that inadequate funding rates do not fully reflect providers’ actual costs, which many providers reported to have increased under the scheme.
The report recognised that many providers would need to charge parents for additional items but acknowledged that what a provider may (or may not) charge for under the DfE’s guidance is not as clear as it could be. The report also recommended readjusting the balance between allowing some additional charges while ensuring they do not deter take-up of the extended hours.
The report nonetheless concluded that the main problems faced by providers are one of perception rather than reality, and there is no reason that to think the scheme “will not be a success”. As providers restrict places and face growing financial pressures, it remains hard to share in the authors' confidence.
IT problems
So how is it looking now with only two weeks to go?
Despite the fact that the Childcare Service website, which is run by HM Revenue & Customs, has been in operation since April 2017, it continues to be plagued by glitches affecting parents’ ability to register for tax-free childcare and the 30 hours’ entitlement.
Earlier this month Nicky Morgan MP, former Education Secretary and now chair of the Treasury Committee, wrote to the head of HMRC demanding answers and reassurance that parents will not be out of pocked as a result. HMRC has now set up a compensation scheme for affected parents.
Fingers crossed everything gets sorted in time…
Chris Hook is an associate solicitor at Hempsons in Newcastle upon Tyne. He provides specialist legal advice to charities, social enterprises and educational institutions on a wide range of charity, commercial, regulatory and public law matters. He can be contacted at [email protected] or 0191 230 6052. You may also be interested in his other articles below.
Disclaimer: This article contains information which is necessarily general. It does not constitute legal advice. It is essential that, before proceeding with a particular course of action, you take specialist legal advice on any relevant considerations which may apply in your specific circumstances so that you can properly assess your options and any associated risks and benefits.
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