Exclusive:Private nurseries threaten legal action over council failure to provide cross-border childcare
Private nurseries have raised repeated concerns that a refusal to fund cross-border childcare is harming children
Private nurseries have threatened councils will legal action over a funding decision they claim is harming young children.
The Scottish Early Years Association (SEYA) has sent a lawyer’s letter to local authorities and the Scottish government over “damaging” policy.
Currently all three and four-year-olds and some two-year-olds are entitled to 1140 hours of funded nursery placements.
Parents should be able to claim the hours in the nursery setting that suits their needs best no matter where they live.
However, City of Edinburgh Council last year limited its funding for cross-boundary placements to its own nurseries and now West Lothian has followed suit.
SEYA claims private nurseries are, in some cases, losing as much as £150,000 to £300,000 a year due to these restrictions.
Sharon Fairley, who heads up SEYA and owns the Little Flyers chain of private nurseries, said: “It's such an emotional journey choosing a nursery for your child.
“Now children are having to move, being unsettled and it’s not fair but we also don't think what they're doing is legal.”
SEYA represents nursery settings, affected families, nursery associations and childminders.
The letter describes “fundamental ongoing issues” and “damage” caused in a number of local authorities, including Edinburgh City Council and West Lothian Council.
They want any councils currently refusing to apply cross-boundary funding to undertake an immediate review and reverse the decision.
Private nursery settings say they are crucial to allowing the Scottish government to fulfil its pledge of 1140 funded hours of childcare to three and four-year-olds and some two-year-olds.
However, they claim the funding is not reaching them.
The scheme is set up on a principle of “the funding follows the child”, which SEYA argues should mean across local authorities.
Government statutory guidance states: “Under Funding Follows the Child the choice of setting available to families is not restricted to their own local authority boundary.
“Education authorities should, wherever possible, make arrangements that ensure families
accessing cross-boundary placements are treated on the same basis.”
Further guidance adds that “the choice of setting available to families is not restricted to their own local authority boundary.”
SEYA claims a number of local authorities are using procurement procedures that aim to limit the
number of eligible third or private sector providers that can gain partnership status.
The group says West Lothian Council and City of Edinburgh Council have tried to exclude funding for settings that are outwith their boundary.
Their letter sets out that City of Edinburgh Council has sought to run no procurement process at all relevant to third and private participation and has limited private sector participation in funding to settings that already have existing arrangements.
As well as significant funding loss to private nurseries, Mrs Fairley said children and families are being negatively affected.
One child, she said, had their place revoked due to West Lothian Council failing to provide cross-border funding.
Testimonials from a variety of private nurseries speak to children having to move placement.
Some - such as Mrs Fairley - are subsidising placements but say this is not sustainable.
One said nearly 70 families would be affected as children already in placement will no longer be able to use their funded hours due to cross-boundary changes.
The 1140 hours expansion was a key pledge of Nicola Sturgeon’s government, costing taxpayers £1 billion a year to implement.
However, recent government-commissioned research by Diffley Partnership found “no evidence” the flagship policy had improved cognitive or behavioural skills or led to a reduction in a poverty-related attainment gap.
A West Lothian Council spokesman said: “It would helpful if the Scottish government would conduct a root and branch review of the guidance, and policy and funding frameworks, associated with Early Learning and Childcare (ELC).”
Councillor James Dalgleish, City of Edinburgh Council’s Education, Children and Families Convener, said the local authority follows national guidance in offering funded places.
He added that the council works “in partnership with a range of providers to ensure that all parents and carers in Edinburgh are able to access quality funded” childcare.
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“In line with Scottish Government guidance, funding follows the child and we continue to provide cross boundary places for children from other local authorities within Edinburgh ELC settings,” he said.
Mr Dalgleish confirmed that parents cannot access funded places outwith their local authority area unless they use a council nursery.
He said: “Parents who are not Edinburgh residents and require full day all year-round provision to work in the city are able to access this in one of our full year 8am to 6pm local authority settings.
“If additional hours beyond their funded entitlement are needed, they are able to purchase these from a local authority setting.”
The West Lothian Council spokesman said the financial crisis facing councils is “of a magnitude which has never been experienced before”.
He said the recent decision to end cross-boundary funding for private providers was “based on the need to prioritise West Lothian Council resources for West Lothian’s children and families”.
The spokesman said: “Statutory Guidance is clear that West Lothian Council has a statutory duty to secure the statutory entitlement to funded early learning and childcare for children residing its area.
“There is no statutory duty on councils to make provision for residents of other areas.
“The Scottish Government has confirmed to us that there are no statutory duties on cross-boundary provision.”
West Lothian Council recently closed eight council nurseries due to oversupply of places, in light of falling birth rates and “funding follows the child which has resulted in a greater number of parents choosing to use funded provision with private providers”.
The council argues that had it not removed funding for non-West Lothian children, more nurseries may have had to shut, causing additional disruption to families.
He said: “We appreciate the potential impact this proposal may have on families who live out with West Lothian and rely on established childcare arrangements, and we recognise the importance of continuity and stability for children’s wellbeing.
“Families living out with West Lothian can still choose to place their children in one of our council nursery establishments.”
Minister for Children, Young People and The Promise Natalie Don Innes previously said: “In light of the representations from affected parents and providers, in 2024, the Minister for Children, Young People and the Promise highlighted concerns about consistency in cross-boundary provision at a national level to COSLA.”
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