View ISC's consultation response.
The proposed new Code is available here.
The new Code (15 pages down from 49) is proposed to take effect in September 2012. Unsurprisingly it does not suggest that a new pot of money has been found to fund the Free Entitlement properly, nor does it concede that schools can charge "top-up fees". Realistically, this would be a difficult move for the government politically as it would undermine the "free" aspect of the childcare offer, and would be reported as a policy affecting women negatively.
However, on our reading, the proposed new Free Entitlement Code helpfully restores to LAs the necessary discretion (taken away in the 2010 Code) to work with high quality schools which charge for additional services. This has been achieved by downgrading some duties which previous were stated as "must", to "should", and even "must" is defined to allow departure from the guidance where there is good reason.
The draft Code
- allows some matters to be left to local determination
- clearly envisages that private providers will be making charges for provision over and above the free entitlement and that this is lawful
- indicates that private providers are to be included in the matrix of local provision
- confirms that it is for the LA to ensure that the full entitlement is available in their area; the onus is not on individual providers.
Interestingly, para 4.9 instructs LAs to "consider and determine whether to fund providers/children with exemptions from the EYFS Learning and Development requirements". This surely indicates the direction of travel. However, as currently, schools will need to indicate clearly on their invoices which hours are the free hours, and which hours and services attract additional charges. Colleagues should be careful to avoid the use of the phrase "top-up fees".