Education Bill

Memorandum submitted by the Department for Education (E 43)


To aid the Committee’s consideration of the Education Bill, this note provides further information on the delegated powers in clause 1.

Policy background

1. Last year, the Deputy Prime Minister announced the introduction of the Fairness Premium, £7 billion of additional funding to give the poorest children the chance to get ahead. The first part of this premium is extra funding so that disadvantaged two year olds have access to 15 hours a week of free early education.

2. Since September 2009, all 152 local authorities have been funded to deliver up to 15 hours free early education to their most disadvantaged two year olds. Approximately 20,000 children and their families currently benefit from this per year.

3. The expansion of this policy and the extra funding committed to it as a result of the Spending Review will increase this number so that an estimated 130,000 children (approximately 20% of all two year olds) will be able to benefit.

4. National funding for the expansion will be: £64 million in 2011-12 ; £223 million in 2012-13 ; £331 million in 2013-14 ; and , £380 million in 2014-15 . For the first two years of the Spending Review period funding will be routed to local authorities through the Early Intervention Grant. This is intended to enable local authorities to begin to prepare for an entitlement from 2013. We are considering the most appropriate route for funding from 2013-14.

Clause 1

5. The legislation we are introducing through the Education Bill will enable us to place a statutory duty on local authorities to provide the entitlement for disadvantaged two year olds from 2013.

6. Section 7 of the 2006 Childcare Act already enables regulations to be made placing a duty on local authorities to secure free early education for young children in their area. However, the wording of section 7 means that the regulations can only use the child’s age as criteria for entitlement, and not any other factors. Clause 1 will substitute this with a new section 7. It is similar but will additionally enable us, through regulations, to introduce a statutory entitlement to free early education for disadvantaged two year olds.

Planned regulations

7. Regulations made under Section 7 currently require local authorities to secure free provision for all children from the beginning of the term following their third birthday until they reach compulsory school age. We are absolutely committed to keeping free provision for all three and four year olds for 15 hours a week 38 weeks a year; this commitment formed a key part of the Chancellor’s Spending Review statement on 20 October 2010. The new regulations made under the section amended by Clause 1 of the Bill will replicate the current position for three and four year olds.

8. In addition, the regulations will require local authorities to secure free provision for children from the beginning of the term following their second birthday if they meet additional qualifying criteria. This measure is intended to support families on low incomes because the evidence shows that less than half ( 44 % ) of all children who live in the most deprived areas achieve a good level of development at age five compared to nearly 70% of those living in the least deprived areas. The intention is therefore that the qualifying criteria should be based principally on indicators of economic disadvantage.

9. The Department is committed to consulting publicly on the eligibility criteria for the new two year old entitlement. However, the question of eligibility will be of interest to the Committee and we set out briefly the Government’s initial thinking on the eligibility criteria.

10. In policy terms, there are strong arguments to use the same criteria currently used to assess eligibility for Free School Meals (FSM) which are provided in the attached annex. Using these criteria would mean that there would be a single indicator for deprivation for children aged between 2 and 16 and it would be relatively straightforward for local authorities to implement. Indeed, this approach would mean we could simply expand the current online tool used to check FSM eligibility. This tool has transformed the process of eligibility checking for Free School Meals and recently won a Civil Service 2010 Award for cost savings and improved service.

11. However, while the policy intention is to broadly cover the same children who are eligible for Free School Meals, changes to tax credits and social security benefits being proposed by the Welfare Reform Bill (which will introduce a new ‘universal credit’ in place of a range of in- and out-of-work payments) mean that current eligibility criteria for Free School Meals will change. The Department has started developing options for new eligibility criteria for Free School Meals and is working closely with the Department for Work and Pensions.

12. Alongside seeking views on the nationally defined eligibility criteria we will use to define disadvantage, the consultation will also consider whether and how local authorities could be provided discretion to fund places beyond this. In other respects, it is likely that the content of the new regulations as they apply to two year olds will remain broadly the same as the current regulations made under section 7 of the Childcare Act 2006 [1] apply to three and four year olds. For example, the description of early years’ provision and the amount of provision (570 hours over a minimum of 38 weeks per year) will be the same. 


13. Although the statutory duty on local authorities will not come into force until 2013, we intend to consult on regulations at the earliest opportunity so that local authorities know what is expected of them and have time to plan and build capacity with early years providers. The first stage of this process will be a consultation with the sector in the Autumn followed by a formal consultation on the regulations next year. The consultation process will cover not just the question of eligibility criteria, but also other aspects of the policy – for example, the quality of provision that should be used.

14. The mechanism for distributing the funding from 2013 onwards for this entitlement to local authorities has yet to be decided but it is likely that we will allocate funding based on the number of places taken up by eligible children within each authority.

Support for local authority implementation

15. There are a range of issues that local authorities are going to need to address, including the capacity within the authority and the identification of eligible children.

16. The trials the Department will be funding are seeking to put local authorities in the lead in addressing some of these issues and in disseminating good practice. These will complement the findings of the final evaluation on the implementation of the pilot programme in the coming months. In drafting the regulations, account will be taken of the outcome of the consultation and the views of the Committee.

17. In ensuring the most vulnerable and disadvantaged families benefit from free early education for 2 year olds, Ministers recognise the important role that Sure Start Children's Centre outreach workers and family support has to play. With this in mind, the Department is working closely with the Department of Health to define an ongoing role for outreach, which takes into account the broad range of issues which outreach workers deal with.

18. Gaps between advantaged and disadvantaged children begin to show at an early age and quality early years provision can be of great benefit to disadvantaged children, giving them the head start they need in life and ensuring they don’t fall behind. The Government cannot overestimate the transformational potential of this kind of investment.

Department for Education
Annex – Criteria for eligibility to Free School Meals

A child is eligible for Free School Meals if the child’s parent is in receipt of any of the following:

· Income Support;

· income-based Jobseeker's Allowance;

· income-related Employment and Support Allowance;

· support under Part VI of the Immigration and Asylum Act 1999;

· the Guarantee element of State Pension Credit;

· Child Tax Credit, provided they are not entitled to Working Tax Credit and have an annual income (as assessed by HM Revenue & Customs) that does not exceed £16,190 (NB. this figure changes annually in line with changes to wider tax credit thresholds); or

· Working Tax Credit during the four-week period immediately after their employment finishes or after they start to work less than 16 hours per week

March 2011

[1] The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2008 (S.I. 2008 / 1724) as amended by S.I. 2010 / 301