Education and Skills Committee

Meeting date: Wednesday, May 22, 2019

Official Report 597KB pdf

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Subordinate Legislation

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St Mary’s Music School (Aided Places) (Scotland) Amendment Regulations 2019 (SSI 2019/144)

Item 2 is consideration of SSI 2019/144. It is a negative Scottish statutory instrument and details are provided in paper 1. Do members have any comments on the instrument?

My question is not on this instrument, because it makes relatively minor changes, but it would be useful if the committee could write to the Government to ask when the next full SSI on St Mary’s will come. They come relatively infrequently before the Parliament and, from the bits that I have seen, they have historically not been particularly scrutinised. It would be useful to get an indication of when the next full SSI will come.

I think that we would be content to do that.

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Children and Young People (Scotland) Act 2014 (Modification) (No 1) Order 2019 [Draft]

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Children and Young People (Scotland) Act 2014 (Modification) (No 2) Order 2019 [Draft]

Item 3 is evidence on two affirmative instruments that amend the Children and Young People (Scotland) Act 2014 with regard to funded childcare. These pieces of draft subordinate legislation are subject to the affirmative process. Information about the instruments is provided in papers 2 and 3.

The affirmative instruments will be covered under three agenda items, the first of which provides an opportunity for the minister to talk to the two instruments and for members to ask her and her officials questions for clarification. We will then turn to agenda items 4 and 5 under which we will debate the two motions on the instruments.

I welcome Maree Todd, the Minister for Children and Young People. Accompanying her are Alison Cumming, the deputy director for early learning and childcare, and Nico McKenzie-Juetten, who is a lawyer in the legal directorate. They are both with the Scottish Government. I invite the minister to make an opening statement to explain the two instruments.

Good morning. In partnership with local government, we have made an ambitious commitment to almost double the funded early learning and childcare entitlement for all three and four-year-olds and eligible two-year-olds from August 2020. The package of orders will provide the necessary legislative basis to underpin the work that local authorities are already doing to deliver, from August 2020, an expanded ELC offer that is of a high quality, flexible and responsive to parental demand.

The first order provides for changes to the maximum and minimum session lengths for the delivery of funded ELC, which are currently set at a minimum session length of 2.5 hours and a maximum session length of eight hours. The changes in the order will extend the maximum session length to 10 hours and will remove the minimum session length.

The changes will support our efforts to ensure that Scotland’s ELC offer is sufficiently flexible for families. Extending the maximum session length means that families can have the option of a full 10-hour session of funded ELC that is more closely tied to the working day. We understand that 10-hour sessions are commonplace for many families and that those who can do so purchase the additional two hours of ELC as wraparound care. We would like to ensure that parents can access the entirety of 10-hour sessions through their funded entitlement.

The order removes the minimum session length, because we consider that to be unnecessary in the context of the expanded entitlement. Care Inspectorate registration requirements will continue to ensure that a high-quality service is delivered, regardless of the session length.

It is intended that the changes to session length will come into force on 1 August 2019. Introducing the changes ahead of the full roll-out of 1,140 hours will support local authorities to provide more flexibility in session lengths and to test new models of delivery during the phase-in period. The order will not place an obligation on settings to provide 10-hour sessions where they are not already offered. Local authorities should continue to ensure that funded ELC is delivered through an appropriate mix of providers and patterns of delivery within their authority areas.

The second order proposes that the mandatory amount of funded ELC to which eligible children are entitled be changed in legislation from 600 hours to 1,140 hours. Subject to parliamentary approval, that will come into force from 1 August 2020.

We are 15 months away from the national roll-out of 1,140 hours. I am proud that more than 11,000 children are already benefiting from early phasing of the expanded hours. Laying the orders now signals our continued commitment to deliver the expanded offer from August 2020 and our confidence in the readiness of local authorities to fulfil their duty. We have robust joint governance arrangements to ensure that local authorities have the required capacity and capability in place and are well supported as they prepare for August 2020. We want every one of Scotland’s children to grow up in a country where they feel loved, safe, respected and able to reach their full potential. I have been heartened by the shared commitment across Parliament to our transformative policy ambition to expand ELC entitlement to 1,140 hours by 2020. I am determined and confident that, together, we will deliver for Scotland’s children and their families.

I welcome the orders, including the increase from 600 funded hours to 1,140 funded hours. For the avoidance of doubt, I am not arguing against that, but I want to explore something around it.

We are providing a universal entitlement to funded hours of early years education for every child in Scotland in the two years running up to their entry into formal education. However, children whose parents have chosen to defer their entry into primary 1 but whose birthdays fall before the end of the year are excluded from that. In those cases, local authorities have the discretion to refuse that entitlement. I want to understand why the Scottish Government is not taking this opportunity to correct that anomaly.

Children with September to December birthdays will continue to have an automatic right to school deferral. Whether they are entitled to additional childcare funding will remain at the local authority’s discretion. I expect local authorities to make that decision based on assessment of the child’s wellbeing and parental input. Parents must be provided with accurate information and should be fully involved in the decision-making process. I do not intend to change that.

The anomaly is that the right of parents to defer their child’s entry to primary 1 is not based on any judgment about the child’s readiness for going into primary 1 apart from the parental judgment. However, their access to that other entitlement to early years education in a nursery is based on a judgment that is at the discretion of the local authority. In many local authority areas, by asserting one entitlement to defer, the parent loses the other entitlement, which we do not think should be at the local authority’s discretion. That is why you are introducing this statutory instrument. There is an inconsistency and an anomaly that could be readily corrected. I do not understand why the Government is not prepared to correct it.

I am comfortable with the flexibility that the legislation offers. We have been very clear that parents, should they choose to, have the right to defer. In conjunction with the parents, local authorities will make the decision based on the child’s wellbeing and interests. I am comfortable with that.

That means, however, that, having chosen to defer, a family’s ability to continue with the early years education of their child depends first, on where they live and secondly, on how much money they have. Some families will not be able to afford to self-fund. Are you really saying that you are comfortable with that?

Are you really saying that local authorities do not make the decision, in conjunction with the parents, with the child’s wellbeing at heart?

My question is not for local authorities; it is for you, minister. Are you comfortable that, for this group of children and their families, their ability to get the entitlement that we are legislating for—

Their ability to get the entitlement—

Excuse me. Let me finish. Their ability to get their entitlement depends on how much money the family has and whether they can afford to pay for nursery education.

No, it does not.

Yes it does.

No, it does not. That entitlement depends on the discretion of the local authority, which will make the decision, in conjunction with the parents, on the basis of the wellbeing of the child.

Should children whose parents have decided to defer continue to have access to funded early years education?

That decision is for local authorities, which will make it on the basis of the wellbeing of the child and in conjunction with the parents.

Why are we considering a statutory instrument that provides a universal entitlement at the hand of the Government and Parliament for all children except these? Why are they different? Why should their entitlement be at the local authorities’ discretion when other children’s is not?

I can only reiterate what I have said. We have built in sufficient flexibility. The majority of children will start school at the age that they are due to start school. Those children who have a January birthday will be entitled to automatic further funding. Funding for those who have a birthday between August and December will be at the discretion of the local authority, which will base its decision on the welfare of the child and make it in conjunction with the parent.

Why are you picking on and excluding that group of children?

I am confident that local authorities all over Scotland can discharge that duty appropriately. I am confident that my local authority colleagues can do that.

You are comfortable with a situation in which some families will be able to make that decision because they can afford to begin to self-fund nursery education while other families will have to either send their child to school before they think they are ready or withdraw their child from early years education for a year. You are comfortable with that.

Let me reiterate—

No, I am not asking you to reiterate. I am asking whether you are comfortable with that position.

I am comfortable with the local authorities discharging their duties towards the children in their area. I am comfortable that we can clarify the basis for exercising discretion in a refresh of statutory guidance. The system will work appropriately.

Why are we imposing the 1,140 hours on local authorities? Why not give them the discretion to decide whether that is appropriate for the children? It is anomalous.

You call it anomalous; I call it flexible.

I think we will move on from there. Ms Smith?

I associate myself with Iain Gray’s questions. There is an anomaly and I hope that the Government will consider its response to Mr Gray.

Minister, you will recall that, two years ago, Audit Scotland was pretty critical of the Scottish Government’s arithmetic around the funding that is required. I draw your attention to the second instrument that we have today. You say that you have

“identified an additional recurring revenue cost of £567 million per annum from 2021-22 and an additional £476 million capital cost for the four financial years from 2017-18 to 2020-21 inclusive.”

What makes you comfortable about those particular statistics, given that the previous ones were so heavily criticised by Audit Scotland?

You will remember that we made a shared decision with local authorities on the appropriate costs that will be required to deliver the funded entitlement. Audit Scotland conducted its audit before those negotiations were completed. By the time the negotiations were completed, we had interrogated the data on both sides and we were comfortable with the decision that we made. That is what gives me the confidence that the figures that we have agreed on with local authorities are appropriate.

09:45  

One of Audit Scotland’s criticisms was that the stakeholders that are due to provide the service had not been consulted fully, and that some of their arithmetic was very different from that of the Scottish Government. Have you got assurance—not just from the Convention of Scottish Local Authorities but from private sector providers, who will need to deliver additional care—that the statistics that are in our papers are accurate?

The funding agreement was between the Government and COSLA. I think that you are referring to partner provider funding rates.

I am.

You will be aware that we are working all over Scotland to improve partnership and that partner provider rates are increasing, in some cases by more than 50 per cent, which will ensure that partner providers are paid a sustainable rate. That has been adequately funded.

You can produce evidence from those involved in the public-private partnership deals that the statistics that you have produced are correct.

Yes.

Would it be possible for the committee to have that evidence?

Yes.

Thank you. That would be helpful.

I will return briefly to the points that Iain Gray raised. Has the Government done an equality impact assessment on a decision that might mean that some young people who ought to defer—everyone might agree that they should defer—will decide not to defer because their parents will not be able to afford early years provision?

I reiterate that the local authority will make the decision—

I understand that. I am asking why the local authority should make the decision.

You are presuming that a local authority would decide not to apply discretion in a case in which everyone agrees that a child should defer.

Why will you not give families certainty? Have you done an equality impact assessment? How many young people might be affected? Why are you choosing to give discretion in one element and not in others? Do you accept the argument that some families with a child who defers will not be able to access their entitlement to early years education, even if there is agreement that the child should defer? As a consequence, even though everybody agrees that it is the right thing to do, families might decide that the child should not defer. It might not be that it is just that the family feels that the child is not ready; there might be issues with disability and development. Everyone might agree that the child should defer, but the family is not guaranteed the same entitlement that is provided to the child’s peers.

Again, I put the point to you: in what situation would a local authority make a decision that was against the best interests of a child? If everybody is agreed—

Why not provide certainty? We might as well ask why a local authority would provide only 600 hours of funded care when it could provide 1,140 hours. Everybody welcomes the certainty that you have provided on that point, so why not provide certainty on this point? We are not talking about a huge group of young people, but, if you did an equality impact assessment, you might discover that the issue is quite significant.

I agree that we are not talking about a huge group of young people. Let me reiterate: I am fully confident that my local authority colleagues will make the decisions appropriately.

Is it reasonable for families to expect more than your confidence? Should they not expect the same entitlement as other young people receive?

The system provides sufficient flexibility and discretion. Local authorities make decisions on the basis of the best interests of the child and in conjunction with the parents.

What do you mean by “flexibility”? What is there the flexibility to do?

Let me reiterate: as with many decisions, local authorities make such decisions on the basis of on the best interests of the child, using the getting it right for every child principles. Local authorities make decisions on the provision of entitlement to children in their areas with parental input. In the way that you are framing this, you are saying that, routinely—

I did not use the word, “routinely”.

—local authorities make poor decisions that are not based on the best interests of children. I have confidence that my local authority colleagues are making good decisions that are based on the best interests of the child and that they are working with the parents. I cannot say any more than that.

Would you be willing to do an analysis of how many young people are involved, how many defer and, of them, how many then get support for early years? Would you be willing to do some sort of survey or equality impact assessment of those who may be—

Certainly.

Would you be willing to do an equality impact assessment in those cases in which everyone is in agreement that the child should defer but a decision is made to send them to school anyway?

Absolutely. I am more than happy to work with colleagues in the Convention of Scottish Local Authorities to explore that.

Will you report back to the committee on that?

Yes.

As others have done, I welcome the extension of the rights that are covered in the instruments. How does that fit in with the wider question of workforce planning? Obviously, the rights, in themselves, are meaningful only if local authorities have planned to have in place the workforce to put them into practice. Is anything being done to encourage such workforce planning in local authorities?

A great deal of work has been done to ensure that we will have an adequate workforce in August 2020, when the policy is due to be implemented. There has been an increase in the availability of apprenticeships and an increase in college and university courses. We are confident that we will have an adequate workforce.

We have a joint delivery board that is co-chaired by me and Councillor Stephen McCabe from the Convention of Scottish Local Authorities. Around that table there are representatives of various groups: the Association of Directors of Education in Scotland, the Society of Local Authority Chief Executives and Senior Managers, finance personnel from local authorities and so on. We monitor data and intelligence from every local authority on issues including workforce in order to ensure that we are on target and are achieving the workforce level that we expected to achieve by this phase of delivery.

I have listened with interest to what has been said, and I appreciate that you are absolutely confident that things will work out. However, I have a genuine question. Do you feel that the children who do not receive the extra year are getting the best outcome?

I am confident that local authority colleagues will make decisions on deferral based on the best interests of the child, working with the parents. The entitlement that we are discussing entitles children from the age of three to two years of 1,140 hours of childcare a year.

We know that quality is vital to delivery of the outcomes that we want for children, so we have built in a number of quality characteristics. Early entrance to that level of childcare from the age of two is possible for children from families who are entitled to certain benefits. I am confident that the package will meet children’s needs and improve outcomes for them.

I appreciate your confidence, but can you envisage a situation in which parents’ outlook is different to the local authority’s, and in which, ultimately, they will not get their entitlement, because the parental choice differs from the view of the local authority?

Again, you are saying to me that you do not believe that local authorities can, along with parents, act in the interests of children. I do not share that view.

I am saying that I have confidence in the parents, to be perfectly honest. I cannot understand how you cannot hear what the committee is saying to you and take it on board. There are not a lot of children in the category—

I have said that I am willing to look at the numbers with COSLA; we will certainly explore the issue with it. I am willing to strengthen statutory guidance so that the factors that ought to be taken into account when a decision is being made are clearer. I am happy to consider the matter further, but I am confident that local authorities act in the best interests of children.

I still think that there is an anomaly and that you should consider that, but thank you.

That concludes the committee’s questions. Thank you, minister.

The next agenda item is consideration of motion S5M-17294, which is in the name of the minister. Neither the minister nor committee members have any comments.

Motion moved,

That the Education and Skills Committee recommends that the Children and Young People (Scotland) Act 2014 (Modification) (No 1) Order 2019 (SSI 2019/draft) be approved.—[Maree Todd]

Motion agreed to.

The next agenda item is consideration of motion S5M-17295, in the name of the minister. Neither the minister nor committee members have any comments.

Motion moved,

That the Education and Skills Committee recommends that the Children and Young People (Scotland) Act 2014 (Modification) (No 2) Order 2019 (SSI 2019/draft) be approved.—[Maree Todd]

Motion agreed to.

The committee will report to Parliament on the instruments. Are members content for me, as the convener, to sign off a report to Parliament on the instruments?

Members indicated agreement.

That concludes the committee’s consideration of subordinate legislation. I thank the minister and her officials for their attendance this morning.

09:56 Meeting suspended.  

09:57 On resuming—