Commentary on Sections Part 6 – Early Learning and Childcare Section 47 – Duty to secure provision of early learning and childcare
110.Subsection (1) provides that an education authority must, in pursuance of its duty under section 1(1) of the 1980 Act, secure that the mandatory amount of early learning and childcare (as defined in section 46) is made available for each eligible pre-school child belonging to its area. Section 23(3) of the 1980 Act provides that a pupil receiving school education is deemed to belong to the area where the pupil’s parent is ordinarily residing. This is subject to any regulations made by the Scottish Ministers.
111.Subsection (2) defines “eligible pre-school child”. It means a child who is under school age, has not started primary school and either falls within subsection (3) or is within such age range, or is of such other description, as the Scottish Ministers may by order specify.
112.Section 97(3) of this Act provides that “school age” has the same meaning as it has in the 1980 Act. Section 31 of the 1980 Act defines a person as being of “school age” if they have attained the age of 5 but not 16 years. Section 31 is however qualified by section 32(3) of the 1980 Act which provides that a child who does not attain the age of 5 on a school commencement date (defined in section 32(1)) shall for the purposes of section 31 be deemed not to have attained that age until the school commencement date following his or her 5th birthday.
113.Subsection (3) provides that, subject to subsection (4), a child is also an eligible pre-school child if the child is aged 2 or over, and is, or has been at any time since their 2nd birthday, looked after by a local authority (“looked after” is defined in section 97(2)), the subject of a kinship care order or a child falling within section 71(3)(f) (those with a parent appointed guardian).
114.“Kinship care order” is defined in subsection (6) as having the meaning given by section 72(1) and includes court appointed guardians. Subsection (4) introduces an order making power enabling the Scottish Ministers to prescribe the circumstances when those children who derive entitlement to early learning and childcare by virtue of section 47(3) are to no longer fall within that section and thus no longer be entitled to early learning and childcare. An order under section 47(2)(c)(ii) and (4) is subject to affirmative resolution procedure in accordance with section 99(2).
115.It is anticipated that an order made under section 47(2)(c)(ii) will include provision akin to that made in the Provision of School Education for Children under School Age (Prescribed Children) (Scotland) Order 2002 (SSI 2002/90) made under section 1(1A) of the 1980 Act (which order making power is to be removed from the 1980 Act by paragraph 2(2)(a) and (b) of schedule 5), so for example to set out that eligibility for early learning and childcare starts from the first term following the child’s 3rd birthday; or the 15% of 2 year olds from workless or job seeking households, or the 27% of 2 year olds whose parents are on certain welfare benefits. That Order also sets out when children cease to be eligible for early learning and childcare.
116.Section 47(4) ensures that equivalent provision can be made about when those who derive entitlement to early learning and childcare by virtue of section 47(3) cease to be eligible for early learning and childcare. Subsection (5) provides that an order under section 47(2)(c)(ii) may sub-delegate the function of determining the eligibility criteria to an education authority so for example the order might provide that a child is an eligible pre-school child only if the education authority is satisfied as to any matter relating to the child which is specified in the order.