Childcare Counsel: opening and closing in lockdown

When the latest English lockdown was announced on 4 January, the Government announced that early years settings would be the only education sector to remain fully open.

Guidance issued by the DfE in January said, ‘Early years providers should stay open and allow children to attend their normal timetabled hours.’ In further guidance, it stated, ‘This is the default position for all areas irrespective of national lockdown restrictions.’

But the ‘Actions for early years and childcare providers during the coronavirus (COVID-19) outbreak’ guidance, updated last month, notes, ‘We understand that it may not be possible for all settings to be open at this time. Early years settings should work together with local authorities to agree the provision needed locally to support the needs identified.’

While the term ‘should’ is repeatedly used in the statutory guidance, the Government does have a legal power to direct a setting to remain open, or to close. The relevant law is schedule 17 to The Coronavirus Act. This states that the Secretary of State may give ‘a temporary continuity direction’, which can include an order to remain open, to a relevant institution which includes a registered childcare setting. There are similar powers in Wales.

A basic legal principle is that if some good reason can be demonstrated to justify departing from the statutory guidance, then this can be lawful. It could be argued that high community infection rates, high numbers of staff sick or self-isolating, or a lack of testing, all constitute good reasons to close/remain closed in this context.

If a setting does close, what happens to free entitlement funding? DfE guidance (January 2021) has changed from the previous position to only divert funding from closed settings as a last resort. Since the autumn term, councils should only fund providers which are open, or closed due to public health reasons, i.e. not fund providers closed without public health reasons. Our view is that ‘a public health’ reason could include the above examples. Such arguments will be fact-specific, and each case will be different.