Nursery Management: 30 Hours - Do you agree?

Forget relaxing on the beach with the latest bestseller – holiday reading for many early years managers has been a weighty tome issued by their local authority. Every council has been asked to produce a local agreement, setting out the terms under which providers will be funded to deliver the 30 hours childcare and early education entitlement, which launches nationally this month.

Many local authorities have asked settings to read through and sign the document within a week of receiving it – sometimes even more quickly. This has not gone down well, especially for those settings which close over the summer, or whose managers were on holiday at the crucial period.

‘Agreements are being railroaded through, but it’s important to stand your ground and have time to think about it,’ says Claire Schofield, then NDNA policy director.

The NDNA is working with law firm Morgan LaRoche to offer members a discounted fixed-fee service advising on issues relating to the local agreements. ‘Ours is around 45 pages long, and ambiguous in many places,’ says Claire Ainscough, owner of Munchkins Village Nursery in Lancashire. ‘There is so much content, it feels in order to interpret it you need to spend a lot of time going through it point by point.’

Local contracts are based on a model agreement, which the Department for Education published in March, with gaps for local authorities to insert specific local policies. The model agreement states that nurseries can make additional charges for items such as food and extra classes like music, and recently updated statutory guidance goes further by stating parents ‘should expect’ to pay for these things.

However, both model agreement and statutory guidance are clear that such payments must be voluntary. The NDNA says this approach is unworkable. ‘We want to be allowed to make mandatory additional charges, although our ideal position is to have adequate funding so that is not necessary,’ says Ms Schofield.

Ivana la Valle, research consultant at the University of East London, is co-author of an evaluation of the pilot 30 hours schemes. ‘For childminders, who tend to offer all-inclusive fees, it is a particular issue,’ she explains. ‘Their fees may cover outings, for example, and that means if some parents don’t want to pay then nobody goes.’

LOCAL DIFFERENCES

As expected, local authorities seem to be taking different stances on what they will allow when it comes to additional charges.

‘There are definitely going to be local differences with some local authorities treating issues such as additional services and hours differently and more narrowly than others,’ says Andrew Manners, director at Morgan LaRoche.

While the model agreement was put in place to promote consistency across local authorities, many seem to be making significant changes, says Mr Manners. ‘Notwithstanding the model agreement, local authorities are departing from these by inserting more onerous, and what we view as unreasonable, provisions on providers,’ he explains. ‘The statutory guidance limits the requirements which councils can impose on providers, including, for example, the circumstances in which councils can cease funding.’

The Department for Education says the wording and headings of the model agreement should be used in every provider agreement ‘unless there is good reason not to’.

‘Local authorities must have good reason for departing from the headings and wordings, it will be for individual authorities to determine if there are exceptional circumstances that justify any departure from the model agreement,’ says a DfE spokesperson.

The model agreement also states that local authorities should make clear their processes for dealing with ‘the grace period’ – the period between a parent losing eligibility for funding and the funding being withdrawn. The length of the period, however, is set nationally except in exceptional circumstances.

The DfE tells Nursery World, ‘Local authorities can extend this period in very exceptional circumstances – such as if a parent is forced to leave their home and paid employment, is a victim of domestic abuse or other serious crimes.’

After receiving her local agreement, Munchkins Village’s Ms Ainscough wrote to her local authority on behalf of a group of providers who all had concerns, requesting a breakdown of where its agreement differs from the model version, and why.

‘One of the problems is that in many cases they use “must” instead of “should”,’ she says. ‘For example, our agreement said the provider “must” avoid artificial breaks and if a child is attending morning and afternoon sessions, lunch “must” form part of the offer. I am open for ten-and-a-half hours, and our logical approach was to offer five funded hours in the morning and a separate session of five funded hours in the afternoon, with a half-hour gap in the middle. Staff need breaks and we have to have a safe changeover, so that half-hour break is imperative.’

INTERPRETATION

Ms Ainscough also objected to a clause that does not appear in the model agreement, stating a funded place cannot be provided if the child is related to the registered owner of the childcare setting, where the registered owner is directly providing the childcare to the related child. ‘There is room for misunderstanding there,’ she says. ‘One provider rang up and asked the council, and was told you can claim for a related child if they are not in the same room, but another was told categorically they cannot claim.’ In response to these objections, the local authority reverted back to the wording of the model agreement regarding continuous provision. It also added to the wording on related children, with ‘This clause is of particular relevance to childminders. It will not apply in a ... setting provided the registered owner is not included in the ratios of staff providing childcare directly to a group that includes their related child (e.g. key person).’

The circumstances in which local authorities can withdraw or claw back funding is another bone of contention. ‘One local authority said if a child is consistently removed from nursery early – for example, if they were meant to be there until 5pm but a parent finished work early and wanted to pick them up at 4pm – the child is not using that hour and the local authority could claw back the money,’ explains Cassie Richards, associate solicitor at Morgan LaRoche. ‘But what constitutes ‘consistently’?There has to be a degree of flexibility – a provider can’t fill that hour gap with another child.’

Ambiguous, vague and undefined wording has been a problem across many of the local agreements that Morgan LaRoche has seen. ‘As an example, a contract I looked at yesterday stated that “any safeguarding issue” would lead to funding being withheld, but the word “issue” was not defined,’ says Mr Manners.

‘I can’t see how any of the agreements wouldn’t need amending given what we have seen so far,’adds Ms Richards.

There is some confusion among providers as to whether they must sign the contract in order to receive funding, partly fuelled by the fact that while new guidance states local authorities don’t have to fund a provider that refuses to sign, information given to the NDNA by the DfE seems to suggest there is no requirement to sign.

‘Local Authorities have to enter into formal, enforceable arrangements with providers and so providers do have to sign, but they should definitely get advice first, or at least make sure they have the time to consider the contract carefully against the updated statutory guidance, which comes into effect in September, and the model agreement,’ says Mr Manners.

Some elements of the model agreement were welcomed by providers, such as the fact that settings are able to charge parents refundable deposits in return for keeping places free. And most providers agree that local agreements are necessary. ‘Nurseries want agreement on how and when they are going to get paid, and local authorities want a written note of what has been agreed to,’ says Ms Schofield. ‘The issue is not the principle of having an agreement but what is in it, and the speed at which nurseries are being asked to sign.

CASE STUDY: CUMBRIA

When Ann McEwan, proprietor of the ABC Nurseries chain, received her local agreement, she was on sick leave. ‘A lot of providers just signed it, but because I was at home I went through ours with a fine-tooth comb,’ she says. ‘I found some anomalies.’

Ms McEwan discussed the agreement with members of the local NDNA group and they approached the local authority for a meeting.

She says, ‘While on the whole the document was fair and true to the DfE guidance, there were some differences, and I kept reminding the local authority that the model agreement was put in place so everyone wasn’t just going off on a tangent and doing their own thing.’

Most of the issues providers had with the agreement were around interpretation. It was agreed that rather than rewrite the contract, a letter clarifying a number of issues would be sent to settings, including those that had already signed. Ms McEwan insisted that the agreement should also contain the amount of funding that was to be received by settings. ‘There was no way we could sign the agreement without the amount being there,’ she says.

One area of contention was around unannounced local authority visits. ‘In the agreement the council said they may do unannounced visits to inspect the quality of the delivery,’ says Ms McEwan. ‘I don’t think so! We get Ofsted inspectors, we are not going to be at the mercy of the LA saying “this is how you should be doing it”.’

At the meeting the local authority explained visits would only take place if a setting was ‘inadequate’ and needed additional support, something that it iterated in the clarifying letter.

While Ms McEwan is pleased by the changes that were made, she thinks providers should have been consulted before the document was put together. ‘They have said that this will happen next time,’ she says.

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