Project 17

Extension of early years education for two-year-olds to some migrant families

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.

The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014 introduced 15 hours of free early education provision for 2-year-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 with the aim of improving 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.

In a judicial review challenge brought by Matthew Gold and Co. Solicitors, the lawfulness of the definition of “eligible child” in the 2014 Regulations was challenged. The Claimants were a British 2-year-old and her vulnerable mother supported by a Local Authority pursuant to section 17 of the Children Act 1989 and had a household income much lower than welfare benefits recipients. The Claimant mother met the conditions of being a ‘Zambrano carer’ but had no outstanding applications with the Home Office and was excluded from claiming mainstream benefits. 

The Claimants argued that the Regulations excluding British children whose parents could not claim mainstream welfare benefits due to their immigration status from free early-education provision was unlawful on a number of grounds, including that it was inconsistent with the statutory purpose of the scheme and was discriminatory. 

Shortly before the Court granted the application permission, the SSE 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:

  1. They satisfy the criteria for a derivative right to reside under regulation 16(5) of the Immigration (European Economic Area) Regulations 2016 (including those who have made no application for recognition of this right or who have made other immigration applications); or

  2. 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.

A second judicial review challenge brought by  Central England Law Centre (coincidentally at the same time) has  resulted in the SSE also extending eligibility to 2-year-olds in families claiming s.4 asylum support.  

Significantly, the SSE also agreed as part of the orders  settling both sets of proceedings that 2-year-olds who fall into one of these three 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. 

Families who are now eligible for free nursery places but who are refused support by local authorities should seek advice on challenging such decisions.   

Whilst this is a wonderful outcome, children of families with no recourse to public funds remain excluded from other vital support, such as free school meals and the extra funding in schools which comes from the pupil premium based on the same eligibility criteria. Further work is now anticipated exploring these issues.

Further information on the Matthew Gold case can be found at www.matthewgold.co.uk or by contacting clare@matthewgold.co.uk or william@matthewgold.co.uk and for further information about the Law Centre case please contact Megan Ward on 02476 253155 or megan.ward@centralenglandlc.org.uk

- Clare Jennings, Director and Head of Public Law and Community Care at Matthew Gold

 

The guidance can be viewed here

 

While we welcome this change, we are also aware that it does not go far enough. This change will not benefit all families without access to public funds and the extended 30 hours of funded childcare for 3 and 4 year olds will still be unavailable to parents with NRPF.