The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2008

These Regulations prescribe certain matters for the purposes of section 7 of the Childcare Act 2006 (“the Act”). They apply in relation to England only.

Section 7 of the Act requires an English local authority (defined in section 106 of the Act) to secure that early years provision of a prescribed description is available free of charge for prescribed periods, for children who have attained a prescribed age.

Regulation 2(1) prescribes the early years provision that an English local authority must ensure is available free of charge. This is early years provision provided by a person to whom section 40 of the Act applies. Section 40 applies to early years providers who are required to be registered in the early years register (provided for under Chapter 2 of Part 3 of the Act) and also applies to early years providers who are not required to be registered in the early years register by virtue of section 34(2) of the Act, which sets out circumstances in which maintained schools, non-maintained special schools, and independent schools are not required to be registered. The effect is that an English local authority must ensure that free early years provision is made available by providers who are under a duty to provide the Early Years Foundation Stage. The Early Years Foundation Stage is established by the Secretary of State under section 39 of the Act. It is divided into two parts: learning and development requirements and welfare requirements. It removes the legal distinction between education and care for young children.

Regulation 2(2)(a) provides that early years provision in respect of which the Secretary of State has made a direction under section 46(1) of the Act is not prescribed. Regulation 2(2)(b) provides that early years provision in respect of which an early years provider has made a determination under section 46(2) of the Act is not prescribed. Section 46 of the Act gives power to the Secretary of State to make regulations enabling the Secretary of State and early years providers to grant exemptions from the learning and development requirements. Exemptions may be granted in respect of early years providers or in respect of a particular child. Local authorities are not required to secure that such early years provision is available free of charge.

Regulation 3 prescribes the periods during which an English local authority must ensure that prescribed early years provision is available free of charge. The periods are no fewer than 38 weeks in a year, and for twelve and a half hours during each of those 38 weeks. Although these are the periods that an English local authority must ensure are available free of charge, this regulation does not affect an authority’s discretion to secure that early years provision is available for other periods of time.

Regulation 4 prescribes the ages of children for whom an English local authority must ensure that the prescribed early years provision is available free of charge. The age of children is prescribed by reference to school term dates.

Section 7(2) of the Act requires an English local authority to have regard to guidance given by the Secretary of State. That guidance is the “Code of Practice on the Provision of Free Nursery Education Places for Three and Four Year Olds”, published by the Department for Education and Skills in February 2006. Copies of this document can be obtained from DCSF Publications, PO Box 5050, Sherwood Park, Annesley, Nottinghamshire NG15 0DJ. Copies can also be downloaded from the following website: www.surestart.gov.uk.

An impact assessment has not been produced for this instrument as no additional burden for business, charities, voluntary bodies, or the public sector is foreseen.