04 Oct Briefing note: changes to the eligibility criteria for free 2-year old nursery places
Secretary of State for Education extends eligibility for free nursery places for 2 year olds in No Recourse to Public Funds (‘NRPF’) households following successful judicial review challenge
In 2014 the government introduced an entitlement to free early education places for two years olds from low-income households. The objective of the scheme was to provide free nursery care to the 40% most disadvantaged two-year olds in British society. The aim of the scheme was to improve outcomes and narrowing the gap in educational achievement between children from deprived backgrounds and their more affluent peers.
However, the trigger for qualifying for free nursery care was a parent’s entitlement to social security benefits, or the child’s membership of particular identified groups. It therefore excluded children whose parents have NRPF, despite the fact that these are some of the poorest households in the UK.
The judicial review challenge
Matthew Gold and Company were instructed to challenge the definition of “eligible child” in regulation 1(2) of the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014 and proceedings were issued in April 2019.
The claimants were a British 2-year-old and her vulnerable mother. The claimant mother met the conditions of being a ‘Zambrano carer’ i.e. as the sole-carer of a British child she had a directly effective right of residence in the UK under Article 20 of the Treaty on the Functioning of the European Union, pursuant to the principle in Case C-34/09 Zambrano  QB 265. However, she had not applied to have this right recognised by the Home Office, nor applied for leave to remain on any other basis.
The claimant mother’s immigration status prevented her from claiming mainstream benefits and the family were in receipt of support from the local authority pursuant to s.17 Children Act 1989. The claimants’ household income was significantly lower than it would have been if they had been entitled to claim welfare benefits.
The claim challenged the exclusion of children in the same position as the claimant from free nursery places alleging that the eligibility criteria in the 2014 Regulations was unlawful on the basis that the criteria was:
- Inconsistent with the statutory purpose of providing free nursery care to the most economically disadvantaged children;
- Discriminatory on the grounds of immigration status and nationality under Article 14 read with Article 8 of the European Convention on Human Rights and under the Equality Act 2010 on the grounds of race;
- Was in breach of the Public Sector Equality Duties in section 149 of the Equality Act 2019;
- Failed to have regard to material considerations and considered immaterial matters.
Shortly before the Court granted the application permission, the Secretary of State for Education conceded the claim. The SSE agreed that following consultation, the Regulations would be amended to extend eligibility to 2-year olds from low-income households whose parents could not claim public funds due to their immigration status, and who possessed one of the following immigration status:
- They satisfy the criteria for a derivative right to reside under regulation 16(5) of the Immigration (European Economic Area) Regulations 2016. This includes (a) those who have had an EU derivative right recognised by the Home Office and (b) those who satisfy the Zambrano principles but who have not yet made any applications to the Home Office, or have an outstanding application with the Home Office either for recognition of their EU derivative right or on some other basis.
- Leave to remain had been granted on Article 8 family or private life grounds either within the rules (Appendix FM or 276E(2)) or outside the rules but were subject to a NRPF condition.
Significantly, the SSE also agreed as part of the order settling the proceedings that 2-year-olds who fall into one of these groups would be treated as eligible prior to the Regulations being amended and that this would be communicated to local authorities. Therefore, two-years from such households should be able to immediately take advantage of this change in eligibility and claim their free nursery place.
A copy of the consent order settling the claim is available here.
The eligibility criteria has been immediately expanded to include the families above. Therefore, local authorities should apply this amended criteria when considering whether a child is entitled to the free nursery hours.
The Department for Education has published guidance setting out in full the eligibility criteria and it is hoped that this will have been communicated to all local authorities. This is temporary guidance and will be replaced on 30 November. Feedback is sought by the DfE on its operation.
Possible issues you might encounter
Despite issuing this new guidance, at the time of writing, the Department for Education’s website has not been amended to reflect this change. You may therefore encounter local authorities who are not aware of the change of the eligibility criteria and they should be directed to the DfE guidance.
The DfE guidance also states that local authorities are not expected to undertake outreach work to identify eligible children. Therefore, the extent to which local authorities choose to promote remains to be seen and so parents and those charities and support workers who work with this client group may be unaware of the change too.
It is also possible that local authorities may struggle to assess who is eligible and may misapply the guidance issued. We can foresee two situations where this may be most likely to arise.
First, the guidance does acknowledge that a Zambrano carer does not have to apply to the Home Office for recognition of such right. However, in the context of providing section 17 support, it is common to see local authorities treat families who arguably satisfy the Zambrano principles and are therefore lawfully in the UK, as unlawfully present in the UK. Usually these would be families with no outstanding immigration applications at all, or who have an outstanding immigration application but not for recognition of their Zambrano right. It is therefore possible that local authorities when considering eligibility for the free nursery place will look for some form of confirmation from the Home Office of a right to reside and fail to proactively assess for themselves whether a family may actually be eligible because of a Zambrano right. It is important to note that a Zambrano carer does not need to have had their Zambrano status confirmed by the Home Office or even applied for it to be eligible for the free 2 year old nursery place.
Second, the guidance states that in assessing whether a parent has a Zambrano right one of the criterion is that the child is a British citizen. Whilst it does not state that the child seeking the nursery place needs to be British, it is possible that local authorities will interpret the guidance as requiring the 2-year-old child to prove British citizenship. That is not correct. All that is necessary is for the parent to have acquired a Zambrano right to reside, which they may have done if they are primary carer to another child (perhaps an older or younger sibling of the 2-year-old) who is a British citizen.
For further information about the claim or if you encounter any difficulties with families accessing a free 2-year-old nursery place, please do not hesitate to contact Clare Jennings (email@example.com), Rachel Etheridge (firstname.lastname@example.org) and William Flack (email@example.com)
A second claim for judicial review – section 4 asylum support
A second judicial review challenge brought by Central England Law Centre (coincidentally at the same time) has also resulted in the SSE also extending eligibility to 2-year-olds for families claiming s.4 asylum support.
The SSE also agreed as part of the order settling those proceedings that 2-year-olds whose parent(s) claimed s.4 asylum support would be treated as eligible prior to the Regulations being amended.
For further information about the Law Centre case please contact Megan Ward on 02476 253155 or firstname.lastname@example.org