Court challenge against exclusion of 2 year old children from accessing Government’s early nursery scheme

MG&Co has issued proceedings challenging our client’s exclusion from the early years nursery scheme.

In 2014 the government announced funding for a ‘fairness premium’ which entitled all disadvantaged 2-year-olds to 15 hours per week of free pre-school education. The scheme aimed  to narrow the gap in achievement between children from economically deprived backgrounds and their more affluent peers.

In practice, however, the eligibility criteria excludes many of the poorest children in the UK whose parent(s)’ immigration status mean they cannot claim means tested welfare benefits, which is a trigger for entitlement.

Our client, a 2 year old who was born in the UK, is a “child in need” in receipt of support and accommodation from his local authority under section 17 of the Children Act 1989. Without this help, he would be destitute and street homeless because his mother has no alternative source of support, as she is prohibited from working or claiming benefits due to her being in the UK currently without leave.

With only limited financial support being provided to the family, our client is growing up among the very poorest households in the UK. Nevertheless, by virtue of our client’s mother being unable to claim benefits, he is excluded from a free early nursery place despite the fact that his mother has significantly less income than the parents of children who are eligible for such a place.

Last year, following a successful challenge, the Government extended the free nursery places to 2-year-olds from NRPF households whose parents would meet the financial criteria to claim welfare benefits, when the parents have leave to remain under Article 8 human rights grounds or because they are a Zambrano carer (i.e. a primary carer of a British child). However, our client and the wider group he represents remains ineligible.

In response to our letter threatening judicial review, the Government confirmed that our client and other children in his situation would be eligible for a two year old nursery place as a temporary measure in light of the pandemic. However, the Government has declined to make this permanent and subsequently issued guidance confirming that the extension was being implemented temporarily to provide assistance to vulnerable children during the current restrictions.

The challenge therefore continues.

Rachel Etheridge, an Associate at Matthew Gold and Co says:

“Although the extension implemented last year benefited many children from NRPF households, our client remains ineligible due to his mother’s immigration status. This is completely contrary to the purpose of the scheme being to help close the educational attainment gap for the very poorest children.

We hope that the Government reconsiders its decision and further extends the scheme to ensure that all two year old children from the poorest backgrounds can consistently access a free nursery place as was intended when the scheme was implemented”.

For further information about the challenge please contact Rachel Etheridge or Clare Jennings. David Blundell QC and Julia Smyth of Landmark Chambers act as counsel.


  1. The Government’s guidance on temporary extension of the two year old nursery scheme during covid 19 restrictions is found here:
  2. More information about the previous judicial review which led to the extension of the scheme to certain NRPF groups, not including our client, can be accessed here: