Secretary of State for Education extends free 2-year-old nursery places following successful High Court claim

Following a claim for judicial review the Secretary of State for Education has confirmed that many more 2-year-olds from the poorest families will be entitled to a free nursery place.

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. However, the eligibility criteria excluded some of the poorest children from migrant backgrounds because their parent(s)’ immigration status meant they could not claim welfare benefits, which was the trigger for entitlement.

Our client N, a 2-year-old British child, and her mother, who was lawfully in the UK but excluded from claiming welfare benefits, had a household income that was significantly less than a welfare benefits recipient. They challenged the lawfulness of the eligibility criteria adopted by the Secretary of State on various grounds including that it was discriminatory and inconsistent with the purpose of the scheme.

Shortly before the Court granted permission for the claim to proceed , the Secretary of State conceded and agreed to amend the eligibility criteria and to hold a consultation. As a result, 2-year-olds who would meet the financial criteria to claim welfare benefits , whose parents are lawfully in the UK on Article 8 human rights grounds or under EU law as a primary carer of a British child,  will now be entitled to a free nursery place.

Significantly, the Secretary of State agreed that this change to eligibility will apply immediately.

Clare Jennings, N’s solicitor and Head of Public Law at Matthew Gold and Co says:

“This is a wonderful outcome for the most disadvantaged children in our society, who should never have been excluded from accessing free nursery care in the first place. We hope that this will go some way towards improving the life opportunities of deprived and vulnerable children.

However, whilst this victory is welcomed, the ‘no recourse to public funds’(NPRF) restriction and the use of welfare benefits as a criteria , continues to exclude disadvantaged children from migrant backgrounds from a whole host of vital services. For example, from free school meals and the extra funding for schools from the pupil premium. We hope that the government will now look more generally at the NRPF condition and the impact it has on vulnerable children.”

Further information about the challenge can be found on Matthew Gold and Company’s website here or by contacting Clare Jennings at or Rachel Etheridge at