EYFE provider agreement

1. Introduction

Objective – to outline how the Early Years Free Entitlement (EYFE) works and the relationship between Brighton & Hove City Council (BHCC) and the Provider.

1.1

The Agreement between BHCC and the Provider consists of these Terms and Conditions and the Annual Core Offer – Providing the Early Years Free Entitlement (EYFE) as signed by a new Provider and subsequently submitted by existing providers, and agreed by BHCC.

1.2

This Agreement is based on the DfE Model Agreement early years provision free of charge and free childcare June 2018. By submitting and signing (as outlined in Section 1.1) the Annual Core Offer form the Provider agrees to abide by these terms and conditions, and to provide EYFE as set out in their Annual Core Offer form as a condition of EYFE funding from BHCC.

1.3

This Agreement applies to the 15 hour entitlement for eligible 2 year olds, the 15 hour entitlement for 3 and 4 year olds (the universal entitlement) and the 30 hour entitlement for 3 and 4 year olds whose parents are working (the extended entitlement) as set out in Appendix 3 “Early Years Free Entitlement (EYFE) Eligibility Information for Providers”.

1.4

The following frameworks and legislation underpin the responsibilities, rights and obligations as set out in this Agreement:

1.5

Providers will not be funded for providing EYFE unless the Annual Core Offer form and supporting documentation has been submitted and agreed by BHCC. Before agreeing to the Provider’s Annual Core Offer BHCC will check that the details on the form comply with this Agreement. Where any issues relating to the Annual Core Offer form submitted arise BHCC will raise with the Provider to resolve before agreeing to fund the Provider to offer EYFE.

1.6

Supporting documents which the Provider must submit as part of their Annual Core Offer form include 1.6.1 Sample invoice for parents (if applicable).

1.6.2

EYFE session times as published for parents.

1.6.3

Information on the number of standalone sessions as published for parents.

1.6.4

Fees and charges as published for parents for sessions which include EYFE hours.

1.6.5

Information on notice periods as published for parents.

1.6.6

A link to where the above documents can be found on the Provider’s website.

1.6.7

Safeguarding policy (new providers only).

1.6.8

SEND (or inclusion) policy (new providers only).

1.7

Appendix 2 “Information for Families – Good Practice for Providers” may be used as a guide and should result in a smooth approval process.

1.8

This Agreement commences on the date that BHCC formally notifies the Provider in writing that their Annual Core Offer and supporting documentation (with any changes as agreed) has been accepted. For avoidance of doubt, and except in exceptional circumstances, BHCC will not be liable for and will not fund any EYFE provision prior to the date of this approval. It is therefore in the Provider’s interest to ensure that the Annual Core Offer is and remains compliant with the requirements of this Agreement.

1.9

This Agreement sets out the requirements and conditions under which BHCC will fund providers to deliver EYFE in accordance with the legal frameworks and statutory guidance set out in Section 1.6. Except where otherwise indicated in this Agreement the Provider is solely and exclusively responsible for delivering EYFE and for compliance with all relevant legislation and regulations including meeting its obligations and conditions relating to Ofsted registration. The Provider is responsible for obtaining any necessary consents or approvals and meeting the required standards to deliver EYFE.

1.10

This Agreement does not create any legal partnership or joint venture between BHCC and the Provider, nor any relationship of principal and agent, nor authorise the Provider to make or enter into any commitments for or on behalf of BHCC. The Provider shall not hold itself out in any manner as legal partner, agent or otherwise authorised to represent BHCC.

1.11

BHCC to the fullest extent of the law accepts no liability for any consequences, whether direct or indirect, arising or resulting from the Provider in its provision of EYFE, the use of EYFE funding or from the termination or withdrawal of the funding under Section 16 of this Agreement. The Provider is responsible and must indemnify and hold harmless BHCC against all third-party claims, demands, actions, costs, expenses, losses and damages arising in law or otherwise relating to the Provider’s delivery of EYFE. BHCC’s liability under this Agreement is limited to the payment of EYFE funding in accordance with the terms of this Agreement.

1.12

Other general legal conditions of this Agreement are set out in the Annex (Standard council legal terms).

2. Key responsibilities

Objective – to provide clarity on certain key responsibilities and roles of the parties.

BHCC

2.1

Must secure an EYFE place for every eligible child in its area.

2.2

Will work in partnership with providers to determine and agree how the obligations to deliver EYFE will best be met including discussion with the Provider in respect of their proposed Annual Core Offer.

2.3

Will be clear about its role and the support offered locally to meet the needs of children with special educational needs and disabilities (SEND) as well as its expectations of providers as set out in the Special educational needs and disability code of practice: 0 to 25 years January 2015.

2.4

Must contribute to safeguarding and promote the welfare of children in Brighton & Hove.

2.5

Will store and manage data in accordance with the Data Protection Act 2018.

Early Years and Childcare Providers Offering EYFE

2.6

Must comply with all relevant legislation and guidance, including additional government guidance issued in relation to specific circumstances, including but not limited to the provisions set out in Section 1.4.

2.7

Must take out and maintain all insurance necessary to meet Ofsted insurance requirements.

2.8

Should work with BHCC to ensure that EYFE is delivered fairly, transparently and in accordance with this Agreement, the underlying legislation and government guidance. The Provider should deliver EYFE consistently to all parents, whether in receipt of provision for their two year old, or the universal or extended entitlement for three and four year olds, regardless of whether or not the parent chooses to pay for non-EYFE hours, optional services or consumables. This means that the Provider should be transparent and communicate to parents and prospective parents details of the days and times that they offer EYFE, along with any optional services and charges. Children accessing EYFE should receive the same quality and access to provision as those whose parents opt to pay for additional services.

2.9

Must follow the Statutory framework for the early years foundation stage September 2021 and have clear safeguarding policies and procedures in accordance with BHCC guidance for recognising, responding, reporting and recording suspected or actual abuse (see Section 3). If requested the Provider must give BHCC full access to its safeguarding policies and procedures to demonstrate compliance. The Provider is also required to update its policies and procedures to take account of any changes in statutory requirements and to work collaboratively with BHCC to improve any areas where shortcomings have been identified.

2.10

Must have arrangements in place to support children with SEND including a clear approach to identifying and responding to SEND. The Provider should utilise the SEND Additional Support Fund and Disability Access Fund (see Section 9) to deliver effective support, while making information available to parents about their SEND offer. The Provider is also required to update its policies and procedures to take account of any changes in statutory requirements and to work collaboratively with BHCC to improve any areas where shortcomings have been identified.

2.11

Must have a data protection policy and must store and manage data in accordance with the Data Protection Act 2018.

3. Safeguarding

Objective – to ensure delivery of EYFE in accordance with established and evolving safeguarding standards

3.1

BHCC has overarching responsibility for safeguarding and promoting the welfare of all children and young people in the city and may issue further guidance to providers in the discharge of these duties with which the Provider should comply. It has a number of statutory functions under the Children Act 1989 and the Children Act 2004 which make this clear, and Working together to safeguard children July 2018 sets these out in detail.

3.2

The Provider has a primary duty to ensure that children are kept safe. A lead practitioner must take responsibility for safeguarding and all staff must have training to identify signs of abuse and neglect. If a professional working with a child has concerns regarding their or their family’s well-being they must refer to Front Door for Families on 01273 290400 or complete the online form. The Provider must ensure that their safeguarding policy is comprehensive, up-to-date and complies with all relevant legislation and codes of practice, including Working together to safeguard children July 2018 and guidance from the Brighton & Hove Safeguarding Children Partnership. The safeguarding policy should be available to parents on the Provider’s website where the Provider has one and otherwise notified in its manuals.

4. Eligibility

Objective – to summarise access to and eligibility for EYFE

4.1

BHCC must ensure that every child can access EYFE no later than the beginning of the term after the child and the parent meets the eligibility criteria for the free entitlements. BHCC will work with providers, including reviewing Annual Core Offer forms submitted, to ensure that completely free and standalone EYFE places (see Section 5.2) are offered and in sufficient numbers in the city, and will seek to ensure that providers engage collaboratively and constructively with BHCC to achieve this objective.

4.2

The Provider should check original copies of documentation for example birth certificate, passport, to confirm that a child has reached the eligible age on initial registration for all free entitlements. The Provider should retain paper or digital copies of documentation to enable BHCC to carry out audits and fraud investigations. Where a provider regains a copy of documentation this must be stored securely and deleted in accordance with Data Protection Act 2018.

4.3

DfE have produced a privacy notice template (Privacy Notice: suggested text for pupils) for providers to give to parents to explain how their information will be used. The Provider may use this and amend it as appropriate to its provision.

4.4

Details of eligibility for 2 year olds, universal and extended entitlement are set out in Appendix 1 “Early Years Free Entitlement (EYFE) Eligibility Information for Providers”.

4.5

Providers must only offer the 2 year old and extended entitlement to eligible children. If the Provider offers EYFE to any child in error, where a child is not eligible, BHCC will not fund the child and any issues in relation to payment for these sessions must be resolved between the parent and the provider. BHCC will not take responsibility for resolving such situations. Any payments made by BHCC to the Provider in respect of any child that is not eligible for EYFE funding will be offset and recovered as an overpayment from future EYFE payments under section 12.9.

5. EYFE Places and Flexibility

Objective – to ensure correct and full provision of sufficient EYFE which meets the needs of parents.

5.1

In order to offer EYFE to 2, 3and 4 year olds the Provider must show on its Annual Core Offer form provision which is completely free and standalone.

5.2

For these purposes:

5.2.1 ‘free’ means places for which no charge is made to parents, with no fee which tops up the amount paid for EYFE to the provider by BHCC
5.2.2 ‘standalone’ means places which can be accessed by parents without the need to purchase additional hours of childcare either side of EYFE

5.3

The Provider should indicate on its Annual Core Offer form how many EYFE standalone places are offered and may show this as a minimum number.

5.4

The Provider should indicate on its Annual Core Offer form the times at which standalone places are offered.

5.5

Each 2 year old or universal EYFE place should be available to parents for:

5.5.1 15 hours a week for 38 weeks a year, or
5.5.2 570 hours a year if offered all year round

5.6

If the Provider is not open for 38 weeks a year and is therefore not able to offer the full universal EYFE entitlement they must make it clear to parents that they may not be able to access additional provision elsewhere to make up the full universal EYFE hours.

5.7

Providers are strongly encouraged to offer the full extended EYFE for eligible 3 and 4 year olds for:

5.7.1 30 hours a week for 38 weeks a year or
5.7.2 1,140 hours a year if stretched and offered all year round

5.8

The Provider may choose not to offer the full extended EYFE but in this case must make it clear to parents that they may not be able to access provision elsewhere to make up the full extended EYFE hours.

5.9

BHCC encourages providers to offer flexible packages of EYFE that meet the needs of parents and children provided that the following standards are maintained:

5.9.1 No session to be longer than 10 hours
5.9.2 No minimum session length (subject to the requirements of registration on the Ofsted early years register)
5.9.3 Not before 6am or after 8pm
5.9.4 A maximum of 2 single sites in a day

5.10

The Provider should ensure that, where it is reasonably practicable, children are able to take up their EYFE in continuous blocks and avoid artificial breaks being created throughout the day, for example over the lunch period.

5.11

For the purposes of Section 5.10 ‘reasonably practicable’ means that objective constraints do not exist which would make it unreasonably difficult in practice to offer EYFE in continuous blocks. Examples where it would not be reasonably practicable to offer continuous blocks of EYFE are where a provider has to close at lunchtime because they are in a shared building and the space is only available at certain times of the day, or if they are a small provider and are not able to open over lunch because of insufficient staff cover.

5.12

The Provider must publish their admissions criteria (see Section 7) and ensure that parents can clearly see and understand which hours and sessions are available as EYFE. This information should also include any fees charged to parents where EYFE is part of a session.

5.13

The Provider may offer EYFE (2 year old, universal, and extended) which is part of a longer session with hours either side of EYFE charged for, provided EYFE is offered in a continuous block without an artificial break (see Sections 5.10 and 5.11).

5.14

A parent may choose to have fewer EYFE hours for their child if they wish to but the Provider should not offer EYFE in such a way that makes take-up of full EYFE hours unduly difficult for parents as a result of restrictions which are applied.

5.15

The Provider should allow parents to stretch their child’s EYFE where possible by taking fewer hours a week for more weeks of the year. Details of this offer and any restrictions should be indicated in the Annual Core Offer form.

5.16

Providers are expected to work in good faith with BHCC to provide sufficient EYFE places which are standalone, as well as those which are part of a longer session, in order to meet parental demand in the city. The Provider must share information about the times and periods at which they offer EYFE and be able to demonstrate that they can offer parents the option of accessing their EYFE standalone through the submission of their Annual Core Offer form. Providers may expect BHCC to discuss the details of their proposals and review the documentation as set out in Section 1.6 to meet these objectives before it approves in writing the Annual Core Offer form which as indicated in paragraph 1.8 above will be the date of commencement of this Agreement.

5.17

The Provider must make information about their EYFE offer, including the times it is available, and the number of standalone sessions (if these are limited) available to prospective parents in a clear, transparent and readily available manner, through publicity and promotional materials, so that parents can make an informed choice of early years provider which best fits their needs. Information on the EYFE offer should include any fees charged to parents where EYFE is part of a session. Where the Provider has a website this information must be shown there with clear navigation for direct access. This information and website link should be made available to BHCC in draft format at the time that the Annual Core Offer form is submitted for agreement and the information should correspond with the details contained in the Annual Core Offer form.

5.18

Information to parents as outlined in Section 5.17 should include any charges made where EYFE is offered as part of a longer session.

5.19

The Provider should make parents aware of any notice periods if they wish to remove their child from their setting.

5.20

The Provider should ensure that notice periods are reasonable for parents if they wish to withdraw their child from EYFE. A reasonable notice period in respect of EYFE places is not more than one month.

5.21

Notice periods in respect of any non-EYFE hours may be different provided that the effective notice period in respect of EYFE hours is not affected. If EYFE is offered as part of a longer session during which charged for hours cannot be accessed separately the notice period for the session cannot exceed one month.

5.22

A parent may choose to have their EYFE at more than one provider or on more than one site, although not more than 2 sites in one day (see Section 5.9.4).

5.23

The Provider should work in partnership with other providers and parents to ensure continuity of care and effective transitional arrangements to support children’s learning and wellbeing, for example sharing development records and the two year progress check. Where a child is attending more than one setting providers must ensure that they work together to confirm that there is clarity and agreement regarding the EYFE claim.

6. Charging

Objective – to ensure fair charging of parents and full visibility and transparency

6.1

Government funding is intended to cover the cost of delivering 15 or 30 hours a week of EYFE. It is not intended to cover the cost of meals, consumables, additional hours of early education or childcare or additional services.

6.2

Providers may charge for meals and snacks as part of an EYFE place and they can also charge for consumables such as nappies or sun cream and for additional services such as trips and music tuition. Parents should expect to pay for these, although charges must be voluntary for the parent. Where parents are unable or unwilling to pay for meals, snacks, consumables or additional services the Provider is responsible for setting their own policy on how to respond, with options including waiving or reducing the cost, or allowing parents to supply their own. Providers should be particularly mindful of the impact of additional charges on low income families.

6.3

The Provider should deliver EYFE consistently so that all children accessing any of the free entitlements will receive the same quality and access to provision, regardless of whether they opt to pay for additional hours, meals, snacks, consumables or services.

6.4

The Provider should not require parents of children in their setting to reserve an EYFE place each term.

6.5

BHCC will not intervene where parents choose to purchase additional non-EYFE hours or additional services providing this does not affect the parent’s ability to take up their child’s EYFE. Providers should be completely transparent about the nature, scope, cost and optionality of any additional charges as set out in Section 5 of this agreement. BHCC may consider this matter further with the Provider in its review of the Provider’s proposed Annual Core Offer form and accompanying documentation and may suggest alterations to meet the objective.

6.6

The Provider may charge parents a deposit to secure their child’s EYFE place but should refund this in full within a reasonable timescale following the child starting at the setting. The Provider should make arrangements regarding deposits clear to parents using the methods set out in Section 5 of this Agreement.

6.7

The Provider cannot charge parents ‘top-up’ fees, i.e. the difference between their usual fee and the funding they receive from BHCC to deliver EYFE or require parents to pay a registration fee as a condition of taking up their EYFE as set out in Section 5 of this Agreement.

6.8

The Provider must ensure any invoices for parents in receipt of EYFE are clear and itemised, allowing parents to see that they have received their EYFE completely free and understand fees paid for any additional hours, meals, snacks, consumables or services which they have voluntarily selected.

7. Admissions

Objective – to ensure a clear admissions policy that complies with equalities legislation

7.1

The Provider may set their own criteria for admitting children, providing they comply with equalities and non-discrimination legislation.

7.2

The Provider should ensure that their admissions information is clear and accessible for parents in their publicity information and on their website so that parents can make an informed decision on where to access their EYFE.

8. Partnership working

Objective – to facilitate the various partnerships relating to EYFE

8.1

BHCC supports partnership working on 4 levels between:

8.1.1 BHCC and providers
8.1.2 Providers and other providers, including childminders, schools and other organisations
8.1.3 Providers and parents
8.1.4 BHCC and parents

8.2

BHCC encourages partnership working between different types of early years providers across all sectors and encourages providers to offer flexible provision, alongside other providers.

8.3

The Provider should work in partnership with parents and other providers to improve provision and outcomes for children in their setting.

8.4

Where EYFE is split across different providers the Provider should discuss and work with parents to agree how a child’s overall care will work in practice in order ensure that there is a smooth transition for the child.

9. Special Educational Needs and Disabilities (SEND)

Objective – to ensure good practice and comply with legislation meet statutory guidance in relation to special educational needs and disabilities (SEND)

9.1

The Provider must ensure that they meet the needs of children with SEND, including working with the Brighton & Hove Inclusion Support Service (BHISS). They must have regard to the Special educational needs and disability code of practice: 0 to 25 years January 2015 and the Equality Act 2010 in the preparation and operation of their policy. The SEND policy should be available to parents on the Provider’s website where the Provider has one and otherwise notified in its manuals

9.2

The Provider should refer to Brighton & Hove Early Years Special Educational Needs and Disability (SEND) Guide for Professionals which helps early years settings identify a child’s SEND, outlines the level of support they are expected to offer, and details how to arrange and monitor the support needed.

9.3

Additional Support Funding (ASF) for inclusion of children with SEND may be available for EYFE hours as assessed by BHISS.

9.4

BHCC’s Local Offer details support for children with SEND who live in Brighton & Hove, and how parents can access support.

9.5

The Provider must be clear and transparent about the SEND support on offer at their setting and make information available about it so that parents can choose the right setting for their child with SEND.

9.6

The Provider should collect information from parents about their child’s eligibility for Disability Living Allowance and therefore the Disability Access Fund (DAF) on the EYFE Parental Declaration Form. The DAF is a one-off annual payment for three and four year olds to help them access their EYFE. If a child changes setting during the academic year the DAF will remain with the original setting.

11. Quality

Objective – to ensure good practice and comply with legislation and statutory guidance in relation to early years and childcare quality.

11.1

The Statutory framework for the early years foundation stage September 2021 is mandatory for all schools which offer early years provision and Ofsted-registered early years providers in England, unless an exemption has been granted by the DfE.

11.2

In order to provide EYFE for 2, 3 and 4 year olds providers must deliver the full EYFS and be registered with Ofsted as an early years provider or be a maintained school taking children aged two and over and therefore exempt from registration with Ofsted as an early years provider.

11.3

BHCC will fund places for 2, 3 and 4 year old children at any provider judged ‘good’ or ‘outstanding’ by Ofsted and the Provider is willing to accept BHCC requirements as set out in this Agreement.

11.4

BHCC will fund places for 3 and 4 year old children at any provider judged ‘requires improvement’ by Ofsted. The Provider must work with BHCC to address actions highlighted by Ofsted in order to meet requirements as set out in this Agreement.

11.5

BHCC will only fund places for 2 year old children where a setting is rated ‘requires improvement’ where there is not sufficient, accessible ‘good’ or ‘outstanding’ provision, and where it is satisfied that there are no concerns regarding children’s welfare or safeguarding.

11.6

BHCC will fund places for 2, 3 and 4 year old children at new providers registered with Ofsted until the Provider’s first full Ofsted inspection judgement is published and the Provider is willing to accept BHCC requirements as set out in this Agreement.

11.7

BHCC will fund providers with exemptions from EYFS if a parent wants their child to take up their EYFE at an exempt provider and the Provider is willing to accept BHCC requirements as set out in this Agreement.

11.8

BHCC will fund individual children who have exemptions from the EYFS.

11.9

BHCC is not required to fund EYFE at providers who do not meet the quality standards set out above but may choose to do so to ensure sufficient EYFE places.

11.10

BHCC will rely solely on the Ofsted inspection judgement of the Provider as the benchmark of quality.

11.11

BHCC will not fund providers who do not actively promote fundamental British values or if they promote view or theories as fact which are contrary to established scientific or historical evidence and explanations.

11.12

BHCC will fund providers with an Ofsted inspection of ‘met’ until their Ofsted quality judgement is published. BHCC will not fund providers with an Ofsted inspection judgement of ‘not met’.

11.13

BHCC will secure alternative provision and withdraw funding from a provider, as soon as is practicable, when Ofsted publish an inspection judgement of ‘inadequate’. When withdrawing funding BHCC will take into account the continuity of care for children already receiving their EYFE at the provider, and the Ofsted report and monitoring information about the Provider. If funding is withdrawn the Provider will not be able to offer EYFE again until they have a new Ofsted inspection judgement which is not ‘inadequate’. In this situation the Provider must let any parent who has their child on the waiting list know that they will not be able to take their EYFE at the setting.

11.14

BHCC will not withdraw funding from a provider until their Ofsted inspection judgement is published.

11.15

BHCC will consider any information published by Ofsted about a provider including the recent history of childcare provision by the provider or childcare provision at the address. This may include where BHCC has concerns that a provider judged ‘inadequate’ by Ofsted may have re-registered their setting with Ofsted to avoid making the quality improvements identified by Ofsted. BHCC reserves the right to refuse, suspend, or terminate EYFE funding based on the published information.

12. Funding and payments

Objective – to provide clear process and information to providers on EYFE funding and payments.

12.1

The Provider will be paid for provision of EYFE once their Annual Core Offer has been accepted by BHCC as outlined in Section 1 of this Agreement.

12.2

The Provider must ensure that parents complete and sign the Early Years Free Entitlement (EYFE) Parental Declaration Form (Appendix 3) confirming the hours and sessions of EYFE their child has received.

12.3

As outlined in Section 4.5 BHCC will not pay EYFE for children who are ineligible for provision.

EYFE for 3 and 4 year olds

12.4

BHCC funds EYFE for 3 and 4 year olds in accordance with the requirements and funding rates set out in the Early Years National Funding Formula, where the current national rates can be found.

12.5

BHCC’s local funding formula for the current financial year can be found at The Early Years Free Entitlements (EYFE) for 2,3 and 4 year olds and information on funding rates is sent to providers each March. The funding formula includes a deprivation supplement for eligible children. BHCC does not offer providers an ad hoc deprivation supplement checking service for individual children.

12.6

BHCC issues each provider an indicative budget at the beginning of the financial year which broadly reflects anticipated participation. Individual budgets can be adjusted within the financial year to reflect participation based on estimated and actual (headcount) EYFE hours submitted by providers via the online provider portal.

EYFE for eligible 2 year olds

12.7

The hourly rate for 2 year olds can be found at The Early Years Free Entitlements (EYFE) for 2,3 and 4 year olds.

Payment of EYFE funding

12.8

Payment of EYFE funding by BHCC to providers is made in 2 instalments each term. Information on how funding is paid can be found at The Early Years Free Entitlements (EYFE) for 2,3 and 4 year olds.

12.9

75% of EYFE payments to providers are made at the start of each term based upon an estimate of hours submitted via the provider portal. The balancing payment of 25% is made on completion of the headcount when actual hours are submitted via the provider portal. BHCC will recover any overpayments made at the start of the term from the balance of either two or three and four year old funding before making the balancing payment. Further EYFE payments will not be made until any overpayments have been offset or otherwise recovered.

12.10

Where the Provider is in a recovery position, for either EYFE or ASF payments (see Section 9.3) BHCC will inform the Provider as soon as possible how the funding overclaim will be recovered and will liaise with BHCC’s corporate collections team if necessary.

12.11

If BHCC are notified by the corporate collections team of continued outstanding debt relating to recovery of EYFE funding, any funding claims from that provider (estimate or balancing) will be suspended until the outstanding debt is cleared.

12.12

BHCC will only pay funding for the extended entitlement for 3 and 4 year olds from the start of the term after both the following conditions are satisfied

12.12.1 the child has attained the age of three, and
12.12.2 the child’s parent has a current positive verification of eligibility from HMRC

12.13

If a child is taking up their universal entitlement and a parent becomes eligible for the extended entitlement part way through a term, the provider can start claiming funding for extended entitlement hours the term following the date on which the parent received their verified code.

12.14

All providers must use the online provider portal to provide BHCC with information regarding children’s attendance and EYFE hours, and guidance on this is sent to providers each term.

12.15

Providers can only claim funding when the child attends; EYFE will not be paid by BHCC for any notice periods if a child has left a setting.

12.16

Where a child accesses their EYFE at more than one provider or at more than one site (either term-time, or ‘stretched’ or a mixture of both) funding must be claimed by each provider on a term-time basis, and ‘self-stretched’ if required.

12.17

BHCC may suspend EYFE payments where a potentially serious compliance issue appears relating to this Agreement and will follow the steps set out in Section 16.

Change of attendance

12.18

The Provider must notify BHCC as soon as possible of any change to a child’s EYFE attendance for example joining, leaving or changing hours, via the online provider portal ‘adjustments’ section.

12.19

The Provider will receive adjustment funding for any EYFE change of attendance only where this has been notified to BHCC during the term in which it takes place.

Absence

12.20

The Provider must notify BHCC if a child is absent for a period of more than three weeks. EYFE funding will not be withdrawn if there is a legitimate reason for the child’s absence and they are expected to return.

12.21

In order to promote the principles and values of EYFE, the Provider is requested to have an attendance policy which supports parents and children to attend their EYFE sessions. It is also the case that inspectors will consider the attendance of children for whom the provider receives early years pupil premium

13 Reporting

Objective – to ensure timely provision of data for DfE purposes.

Headcount and census

13.1

The Provider is required to submit data to BHCC as requested. This includes, but it not limited to, termly headcount information, census information, information as part of BHCC’s Childcare Sufficiency Assessment and any other data in relation to early years and childcare provision.

13.2

The Provider must submit termly headcount information regarding actual attendance to support payment and delivery of EYFE. Headcount dates can be found at The Early Years Free Entitlements (EYFE) for 2,3 and 4 year olds.

13.3

The Provider must make their termly headcount submission via the online provider portal following guidance from BHCC. Providers should claim for eligible children attending during headcount week each term.

13.4

BHCC reports annually to the DfE regarding take up of EYFE in the January census. The Provider must submit timely and accurate headcount and census returns, including all required information about their setting.

13.5

The Provider must comply with all BHCC requirements and deadlines for information and data provision. Failure to do so may result in inaccurate, delayed or suspended EYFE funding.

13.6

The Provider should maintain accurate financial and non-financial records relating to EYFE provision and should give BHCC access to these upon reasonable notice.

14 Compliance

Objective – to ensure compliance with EYFE core delivery requirements.

14.1

The Provider must maintain all attendance and finance records for a period of six years.

14.2

In the event of an audit by BHCC the Provider must have copies of the following documents for the relevant period

14.2.1 Parental Declaration forms
14.2.2 Parental Change of Attendance forms
14.2.3 Children’s attendance records
14.2.5 Documentation to prove the status of the Provider, for example registered charity, incorporate company, sole trader
14.2.6 Any other documentation that can reasonably be requested

14.3

The Provider must follow all planning guidance and have appropriate planning permission in place.

14.4

The Provider must comply with all health and safety and environmental legislation and government guidance although it is not BHCC’s responsibility to monitor compliance.

14.5

The Provider must give BHCC and parents at least one month’s notice in writing if they decide to stop offering EYFE.

14.6

If the Provider closes part way through a funding period the Provider must pay back unused EYFE funding to enable children to access their EYFE elsewhere.

14.7

Failure to pay BHCC any monies owed within given deadlines will result in BHCC implementing its corporate debt recovery policy.

15 Compliance issue resolution

Objective – to provide a clear and proportionate process for the resolution of issues of non-compliance with the terms of this agreement

15.1

Where any compliance issues arise relating to this Agreement, BHCC will follow the processes with the Provider as set out below.

Step 1 – Collaborative resolution

15.2

BHCC will set out the issue of concern and will ask for a response from the Provider.

15.3

The Provider should make a senior staff member available who is able to communicate with BHCC by email, telephone and meeting as needed.

15.4

BHCC and the Provider shall work together to consider, agree and record specific actions or changes to the Provider’s policies, procedures or practices.

15.5

Step One should be concluded within four weeks of the issue being raised by BHCC unless a different timescale is agreed in writing.

Step 2 – Remedial plan

15.6

For serious, urgent or repeated issues of compliance or where the measures at Step One have not been resolved within the timescale indicated, BHCC may serve the Provider with a notice issuing or requesting a Remedial Plan from the Provider.

15.7

The notice will set out the details of the compliance issue reiterating what the Provider needs to rectify and give a date by which a Remedial Plan should be submitted to BHCC.

15.8

The Remedial Plan should address the issues set out in the notice along with the actions that will be taken to resolve the compliance issue, along with any documentary evidence.

15.9

BHCC may request changes to the Remedial Plan prior to accepting.

Step 3 – Termination of this Agreement for Compliance Issues

15.10

If the Remedial Plan from Step Two has not been submitted and/or agreed within a reasonable timeframe as notified by BHCC, where the Remedial Plan has not been implemented as agreed, or for persistent compliance issues, BHCC may issue a Notice to Terminate this Agreement. The Notice will set out the basis for the termination and the date on which the Agreements ends.

15.11

BHCC may in the Notice to Terminate and in its sole discretion allow the Provider one final opportunity to rectify the compliance issue within a strict and short timeframe.

15.12

BHCC may also issue a Notice to Terminate this Agreement immediately where the compliance issue represents a fundamental breach of this Agreement (including but not limited to the undertakings given in the Annex Clause 8) , EYFE Government legislation or guidance or any other applicable law, or where the compliance issue(s) result or may result in material damage to the reputation of the Provider, BHCC or of EYFE provision.

16 Termination of Agreement and Withdrawal of EYFE Funding

Objective – to set out processes for termination of this Agreement and EYFE funding

16.3

Suspension of the Provider’s registration by Ofsted or a breach of statutory requirements or safeguarding issues may result in the termination of this Agreement and withdrawal of EYFE funding.

16.4

BHCC may withdraw EYFE funding where there are concerns about a provider’s financial viability. It also reserves the right to make EYFE payments in arrears rather than in advance, or in monthly instalments.

16.5

EYFE funding may also be withdrawn as set out in Section 15.

16.6

BHCC may refuse to fund a provider if there are reasonable grounds to believe that they will not be able to meet all the terms and conditions of providing EYFE as set out in this Agreement, and in Section A3 of Early education and childcare statutory guidance for local authorities June 2018.

16.7

BHCC will not waive the right to act to terminate or withdraw EYFE funding if it does not act immediately.

16.8

If funding is terminated or withdrawn the name of the provider will be removed from the Family Service Directory (FSD) of childcare providers offering EYFE in Brighton & Hove.

16.9

If funding is withdrawn from a provider but the Provider chooses to continue to offer free places to children they must make it clear in writing to parents that their child is not receiving EYFE.

16.10

Where BHCC terminates this agreement BHCC will not be required to make any further payments until the costs and amounts owing to and from the Provider have been calculated. The Provider will be entitled to be paid any balance owing following the final account calculation.

16.11

On termination the Provider shall be required to cooperate fully with the transfer of responsibilities relating to children in receipt of EYFE as well as BHCC as set out in this Agreement.

17 Appeals process

Objective – to provide a clear process for appeal against decisions not to fund a provider or to withdraw funding made under this Agreement

17.3

A Provider may not be approved to offer EYFE, the Agreement may be terminated or have their funding withdrawn as set out in this Agreement. The Provider may appeal against such decisions in the manner set out in this section.

17.4

The Provider should write to the Head of Early Years and Early Help at eyc@brighton-hove.gov.uk within 10 working days of receiving the decision rejecting their application for EYFE funding, or withdrawing their EYFE funding, setting out the grounds for their appeal and including supporting documentation. Appeals reviewed after ten working days will only be considered where good reason is demonstrated for the delay.

18 Complaints process

Objective – to ensure that parents have a clear and transparent process to raise a complaint with a provider and to outline how providers can complain to BHCC.

Complaints from parents

18.3

The Provider should ensure it has a complaints procedure in place for parents who are not satisfied that their child has received their EYFE in the correct way, as set out in this Agreement. The Provider’s complaints process should be clearly published and accessible for parents.

18.4

The Complaints Procedure should indicate that if the matter has not been resolved between the Provider and the parent, the parent should contact BHCC’s Family Hubs at FamilyHubs@brighton-hove.gov.uk which will investigate the issue with the support of the Early Years Team.

Complaints from providers

18.5

Providers who have a complaint about the way in which BHCC manages this Agreement should contact the Childcare Strategy Manager at eyc@brighton@hove.gov.uk.

18.6

Providers may complain about the manner in which this Agreement is being administered but not the contents or the requirements of this Agreement. Decisions made to decline or terminate EYFE funding may be appealed against as set out in Section 17 and are not for this reason dealt with through the complaints procedure. A Provider who incorrectly appeals or complains will be appropriately signposted as set out in this paragraph.

18.7

If the parent or provider feels that they have not received a satisfactory response to their complaint and wishes to take the matter further a formal complaint may be submitted through the BHCC complaints procedure. 18.8 If a parent or provider is not satisfied with the way in which their complaint has been dealt with by BHCC can complain to the Local Authority Ombudsman. Such complaints will only be considered when BHCC’s complaints procedure has been exhausted.

19 Variations to this Agreement

19.3

This Agreement will be reviewed on a regular basis and updated as required in accordance with changes to Government guidance and relevant legislation. Any update to the Agreement will be notified to the Provider.

Annex: Standard council legal terms

All clauses numbering in this Annex shall be referred to as Annex Clause [Number].

1. Acknowledgment and publicity

1.1 The Provider shall acknowledge the EYFE Funding through BHCC in its annual report and accounts

1.2 The Provider agrees to participate in and co-operate with any activities relating to the EYFE that may be instigated and/or organised by BHCC.

2. Intellectual Property Rights

2.1

BHCC and the Provider agree that all rights, title and interest in or to any information, data, reports, documents, procedures, forecasts, technology, know-how and any other Intellectual Property Rights whatsoever owned by either BHCC or the Provider before the commencement date or developed by either party during the funding period, shall remain the property of that party.

2.2

Where BHCC has provided the Provider with any of its Intellectual Property Rights for use in connection with EYFE (including without limitation its name and logo), the Provider shall, on termination of this Agreement, cease to use such Intellectual Property Rights immediately and shall either return or destroy such Intellectual Property Rights as requested by BHCC.

3. Confidentiality

3.1

Subject to Annex Clause 4 (Freedom of Information), each party shall during the term of this Agreement and thereafter keep secret and confidential all Intellectual Property Rights or Know-How or other business, technical or commercial information disclosed to it as a result of the Agreement and shall not disclose the same to any person save to the extent necessary to perform its obligations in accordance with the terms of this Agreement or save as expressly authorised in writing by the other party.

3.2

The obligation of confidentiality contained in this clause shall not apply or shall cease to apply to any Intellectual Property Rights, Know-How or other business, technical or commercial information which:

3.2.1 at the time of its disclosure by the disclosing party is already in the public domain or which subsequently enters the public domain other than by breach of the terms of this Agreement by the receiving party
3.2.2. is already known to the receiving party as evidenced by written records at the time of its disclosure by the disclosing party and was not otherwise acquired by the receiving party from the disclosing party under any obligations of confidence
3.2.3 or is at any time after the date of this Agreement acquired by the receiving party from a third party having the right to disclose the same to the receiving party without breach of the obligations owed by that party to the disclosing party

4. Freedom of Information

4.1

The Provider acknowledges that BHCC is subject to the requirements of the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004.

4.2

BHCC shall be responsible for determining at its absolute discretion whether information provided under this Agreement: is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations 2004; is to be disclosed in response to a request for information.

4.3

The Provider shall ensure that all information produced in the course of the Agreement or relating to the Agreement is retained for disclosure and shall permit BHCC to inspect such records as requested from time to time.

5. Data protection

5.1

The Provider shall (and shall procure that any of its staff involved in connection with the activities under the Agreement shall) comply with any notification requirements under the Data Protection Act 2018 (DPA) and both Parties will duly observe all their obligations under the DPA, which arise in connection with this Agreement.

5.2

The Provider shall ensure that it has in place appropriate technical and organisational measures to ensure the security of personal data as required under the Seventh Data Protection Principle in Schedule 1 to the DPA.

5.3

The Provider agrees to indemnify BHCC against all costs that BHCC incurs as a consequence of the Providers failure to comply with this Annex Clause 5.

6. Equality duty

6.1

Under the Equality Act 2010 (the Act), BHCC, in carrying out its functions has a duty to pay due regard to the need to eliminate discrimination, harassment and victimisation, promote equality of opportunity and good relations between those who share a particular protected characteristic and those who do not.

6.2

The Provider shall not discriminate contrary to the Act (which term includes harassment and victimisation) directly or indirectly, against any person on grounds of disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, sex and sexual orientation, race, religion or belief and age.

7. Health and safety

The Provider shall:

7.1 comply at all times with the Health and Safety at Work etc. Act 1974and all other
7.2 Laws relating to health and safety of employees and other affected persons including the Management of Health and Safety at Work etc Regulations 1999, and all other health, safety and welfare requirements applicable to the Services;
and 7.3 accept primary responsibility for all aspects of health and safety at the premises of the Provider and any premises in which EYFE is delivered.

8. Provider undertakings

The Provider represents, undertakes and agrees that:

8.1 it has not committed, nor shall it commit, any Prohibited Act as defined in the Bribery Act
8.2 it shall at all times comply with all relevant legislation and all applicable government guidance and code sand shall notify BHCC immediately of any significant departure from such legislation, codes or recommendations
8.3 it has and shall keep in place adequate systems to deal with the prevention of fraud and/or administrative malfunction
8.4 (all financial and other information concerning the Provider which has been disclosed to BHCC is to the best of its knowledge and belief, true and accurate
8.5 it is not aware of anything in its own affairs, which it has not disclosed to BHCC which might reasonably have influenced the decision of BHCC to make the Funding on the terms contained in this Agreement.

9. Duration

9.1

Except where otherwise specified, the terms of this Agreement shall apply from the date of this Agreement until expiry.

9.2

Any obligations under this Agreement that remain unfulfilled following the expiry or termination of the Agreement shall survive such expiry or termination and continue in full force and effect until they have been fulfilled.

10. Assignment

The Provider may not, without the prior written consent of BHCC, assign, transfer, sub-contract, or in any other way make over to any third party the benefit and/or the burden of this Agreement.

11. Waiver

No failure or delay by either party to exercise any right or remedy under this Agreement shall be construed as a waiver of any other right or remedy.

12. Contracts (Rights of Third Parties) Act 1999

This Agreement does not and is not intended to confer any contractual benefit on any person pursuant to the terms of the Contracts (Rights of Third Parties) Act 1999.

13. Entire agreement

This Contract constitutes the entire agreement and understanding of the parties in connection with its subject matter and supersedes all prior representations, communications, negotiations and understandings concerning the subject matter of this Contract.

14. Governing law

This Agreement shall be governed by and construed in accordance with the law of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.

Appendix 1: Early Years Free Entitlement (EYFE) Eligibility Information for Providers

1. Children can start their EYFE from the term after their second (for eligible 2 year olds) or third (all children) birthday

EYFE eligible birthdates - academic year 2023

If a child’s birthday falls between:

1 January and 31 March, they can start their EYFE from the beginning of term on or after 1 April
1 April and 31 August, they can start their EYFE from the beginning of term on or after 1 September
1 September and 31 December, they can start their EYFE from the beginning of term on or after 1 January

The Provider should ensure these arrangements in its provision of EYFE.

2. EYFE for 2 year olds

2.1

Parents should be directed to contact the EYC Childcare Officer at childcare@brighton-hove.gov.uk to check eligibility from the beginning of the term during which their child turns 2 . Eligibility criteria for EYFE for 2 year olds and information regarding how parents can check are on the BHCC website.

2.2

FIS will send eligible parents a letter confirming their eligibility with a unique reference number. The date indicated on the eligibility letter is the date from which the child can start their EYFE. The Provider should obtain a copy of this letter from the parent and retain a copy for its records.

2.3

Children are eligible for their EYFE from the date indicated on the eligibility letter. If the child is already attending the early years setting prior to the parent receiving their eligibility letter, the EYFE payment to the Provider will not be backdated by BHCC. The Provider must make it clear to parents that they are liable for any fees until the start date on their eligibility letter from The Early Years and Childcare team.

2.4

The Provider should offer places to two year olds on the basis that the child remains eligible until they become eligible for the universal entitlement for 3 and 4 year olds.

3. 30 Hours extended entitlement for working parents of 3 and 4 year olds

3.1

Eligibility criteria for 30 hours extended entitlement and information showing how parents can check are available on the government’s Childcare Choices website which the Provider should use to guide parents. Information can also be found on the BHCC Webpage Childcare and Childcare Funding.

3.2

Parents must check eligibility for the extended entitlement at the Childcare Choices website, and from here they will be sent their child’s unique 11 digit eligibility code. The only exception is children in foster care as outlined in Section 3.4 where the foster parent should apply directly to the responsible local authority (which may or may not be BHCC depending on where the foster parent lives).

3.3

A child will be entitled to the extended entitlement from the term after both of the following conditions are satisfied:

(1) the child has attained the age of 3

(2) the child’s parent has a current positive determination of eligibility from HMRC.

If a parent has a child who will be 3 before the start of the following term but forgets to apply, they will have to wait until the start of the next term to claim their extended entitlement. BHCC cannot backdate funding claims where a parent has not applied for their code in time.

3.4

Children in foster care will also be eligible for the extended entitlement, providing they meet criteria (1) above and meet 2 additional criteria: that this is consistent with the child’s care plan and the foster parent is taking up paid employment outside their fostering role. There is separate information for Foster parents and social workers.

3.5

Alongside the eligibility code and original copies of documentation (see Section 4.2 of this Agreement), a Provider must acquire written consent from, or on behalf of, the parent to be able to verify and receive future notifications from BHCC of the validity of the parent’s eligibility code.

3.6

Once the Provider has received written consent from the parent, they must verify the eligibility code via the online portal.

3.7

Thereafter, BHCC will complete audit checks to review the validity of eligibility codes for children who qualify for the extended entitlement at 6 fixed points in the year, both at half-term and at the end of term across the year (in line with the dates listed in the table below). BHCC will notify the Provider where a parent is no longer eligible and inform them of the grace period end date (see Section 3.8). Providers can view this information in their portal and can check, at any time, the validity of any code.

3.8

BHCC will also check via the Eligibility Checking Service (ECS) whether codes given to BHCC providers have been checked by other local authorities and liaise to reduce the risk of a parent accessing more than the maximum entitlement of 1,140 hours per year.

Date parent receives ineligible decision on reconfirmation	BHCC audit date	Grace period end date
1 January to 10 February	11 February	31 March
11 February to 31 March	1 April	31 August
1 April to 26 May	27 May	31 August
27 May to 31 August	1 September	31 December
1 September to 21 October	22 October	31 December
22 October to 31 December	1 January	31 March

3.9

A child enters the grace period when the child’s parent(s) cease to meet the eligibility criteria set out in The Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2017, as determined by HMRC or a First Tier Tribunal in the case of an appeal.

3.10

BHCC will access information about whether a child has ceased to meet the eligibility criteria and entered the grace period via the ECS and will inform the Provider. The grace period end date is automatically applied to eligibility codes.

3.11

BHCC will continue to fund a place for a child who enters the grace period as set out in Early education and childcare statutory guidance for local authorities.

3.12

BHCC will notify the Provider where a parent has fallen out of eligibility and inform them of the grace period end date, following the audit check dates as set out in the table above. It is good practice for the Provider to notify parents within five working days if they have fallen out of eligibility.

3.13

Children may not start an extended entitlement place at new a setting during their grace period. This includes where a parent falls into their grace period before the child has started their extended entitlement, and where a parent falls into their grace period while their child is in an extended entitlement place and the parent seeks to move the child to a different provider. There are exceptional circumstances (for example, the Provider closes or parent is forced to move home) where a child may be able to change providers during their grace period, as outlined in Early years entitlements: Operational guidance for local authorities and providers BHCC may in those exceptional circumstances exercise its discretion by providing confirmation in a letter to the parent that they may change provider during the grace period which should be presented to the chosen new provider.

Flow Chart for 30 hours extended entitlement checking process DfE Provider Guide to checking validity of 30 hours eligibility codes

You can view the flowchart on page 28 the EYFE provider agreement PDF.

Appendix 2: Information for Families – Good Practice for Providers

1. Websites

Information about early years free entitlement (EYFE) should be clearly signposted from your home page either in a separate EYFE tab, or downloadable as a separate EYFE information document. EYFE information may also be included in your “terms and conditions” or “parental agreement” but should also be available separately to parents and prospective parents visiting your website. If you do not have a website this information should be available to parents and prospective parents on a EYFE document which can be emailed upon request.

2. EYFE website tab or information document

This should include:

general information and links about what EYFE/funded hours are and who is eligible for example: “All 3 and 4 year olds and some 2 year olds are, from the term after their second or third birthdays, eligible for early years free entitlement (EYFE) funded hours 15 hours a week for 38 weeks per year (term-time only) or if the child attends year round, 570 hours stretched over the year. Some 3 and 4 year olds are eligible for up to 30 funded hours a week (term-time only) 1,140 stretched over the year if their parent/s are eligible. For further information go to the government’s Childcare Choices website”

Clear information about:

how you offer EYFE at your setting, for example term-time only; xx hours stretched over xx number of weeks or both
how parents or carers can access EYFE hours without having to pay for additional hours and services, such as your ‘stand-alone offer’, and what, if any, restrictions you set on this, for example by time of the day or week; or the number of places available; any other ‘admissions criteria’ you may set
how parents or carers can access EYFE alongside additional paid for hours, that is how you apply EYFE hours to a child’s weekly attendance, for example if EYFE hours are applied ‘up front’ and families pay for hours after maximum EYFE has been applied; or you set a maximum number of EYFE hours per session
your charges for non-funded hours/part funded sessions, and for non-funded items such as meals, snacks, consumables or additional services
your notice period
deposits, including when they will be refunded

3. Invoices

Invoices should be clear and itemised:

charges for non-funded hours or sessions are a matter for you to decide, but invoices which include both EYFE and non-funded hours should clearly show parents or carers they have been charged only for non-funded hours and items and not for EYFE hours.
Parents or carers should be shown the number of EYFE funded hours their child has had for the invoiced period (week or month) at a 0.00 cost. EYFE must not be represented to the parent or carer as a monetary value or subsidy to standard fees

Invoices should include:

the word “INVOICE”
an invoice number (a unique reference number)
the date
your business or setting’s name, address and contact details
the name and address of the parent or carer being invoiced
a clear description of what you are charging for
the period the childcare relates to
the child’s name
the number of contracted hours or sessions
the number of EYFE hours received for the period (without a monetary value)
additional services received
hourly or sessional rates for non-funded hours
the total amount to be paid
the registration number and the registered office if your business is a registered limited company
other information for example payment details (terms, bank account details, method of payment and due date)

Appendix 3: Early Years Free Entitlement (EYFE) Parental Declaration Form

Download the declaration form on page 31 of the EYFE provider agreement PDF.