Nursery business support for coronavirus / COVID-19

See our frequently asked questions for nursery businesses regarding the coronavirus / COVID-19 outbreak. 

Children doing crafts at nursery
  • Protecting your business 
  • Local lockdowns
  • Reopening/closing
  • Can providers attend community activities if open, such as parent and toddler groups/soft plays?  (DfE responses on 20 November)
    • Can children attend more than one early years setting? (DfE response on  5 November)
    • Out of School Club Guidance updated for January 2021
    • Ratios
    • Inspections
    • What notifications do early years settings need to make when there is a confirmed case of coronavirus? (DfE response on 5 November)
    • Disapplication of requirements
    • Safeguarding
    • Foundation Phase Nursery provision
    • Health and Safety Executive spot checks

  • Staff
    • Lay-off or short time working
    • What if employees do not want to come to work due to fears about coronavirus?
    • If I close do I have to pay my staff?
    • How can I support staff well-being at this time?
    • Apprentices
    • Shielding  
    • DBS checking (Wales)
    • SSSC toolkit of information to support placement providers, students and centres

  • Scottish Government childcare monitoring return
  • Health and safety guidance
    • Reporting incidents of COVID-19
    • Informing DfE and Health and Safety Executive of staff death
  • Retainers and fees for parents (answered by our legal helpline) 
  • Competition and Markets Authority (CMA) investigation

Protecting your business

  • Keep track of the latest government advice – look out for NDNA’s latest Covid-19 updates
  • Check your parent and staff contracts and try to plan for how you can remain open in the face of staff illness
  • Check your T&Cs to ensure that parents know where they stand in terms of payments if their child has to stay away from nursery or your nursery has to close for a period of time. 
  • Bear in mind the Competitions and Markets Authority guidance 
  • Look at all the government financial support available.

Local lockdowns

England

Local lockdowns have ended for now. However, the latest guidance says settings should have an Outbreak Management Plan that covers how restrictions such as reduced mixing, face coverings and social distancing between staff might be reintroduced if required by local public health teams. 

Find out more about step 4 here   

Scotland

On Tuesday 13 July the First Minister set out the Scottish Government’s plan for the cautious lifting of restrictions on a wider scale. Lifting these restrictions continues to be slow. However, from 19 July, all areas, not already there, will drop to Level 0. There will be a further review in three weeks to set out plans for taking Scotland beyond Level 0 from 9 August.

From 19 July (full details can be found here):

  • 8 people from up to 4 households can meet indoors at 
  • 10 people from up to 4 households can meet in a public indoor space – such as a pub or restaurant.
  • 15 people from up to 15 households can meet outdoors - whether in a private garden or public place.
  • Children under 12 already don’t count towards the total number of people. From Monday, they will not count towards the total number of households ether.
  • Soft play centres can open – as they could at level 1, but not at level 2.
  • There are several modifications in place to Level 0, some to hospitality but for the wider society the main modification is to physical distancing. 
  • In indoor public places - as indicated previously - where there isn’t already a 1m rule in place, the physical distance requirement will reduce from 2m to 1m and will apply between different household groups.

The main modification is in relation to outdoor public places. At present for precautionary measures the Scottish Government will keep in place a limit on the size of outdoor group gatherings - as indicated earlier, this will be up to 15 people from up to 15 households.

Because meeting outdoors is less risky than indoors, there will be no requirement to distance within these groups of 15. However, for the next 3 weeks at least, there will be a requirement for 1m distancing between different groups of 15.

Face Coverings, Test and Protect and Isolation remain a mandatory requirement until further notice.

Wales 

The Welsh Government have released a set of Coronavirus control plans. The latest plan outlines the introduction of Alert level 0 (zero) baseline measures

Wales is currently in alert level 1

From Saturday 17 July
Complete the move to alert level 1:

  • Up to 6 people can meet indoors in private homes and holiday accommodation
  • Organised indoor events for up to 1,000 seated or 200 standing can take place, subject to a risk assessment and taking reasonable measures
  • Ice rinks can re-open
  • Remove the legal restrictions on the number of people who can gather outdoors
  • Allow up to 30 children from organisations, such as the Brownies and Scouts, to attend residential centres over the summer holidays

From Monday 19 July:
The use of consistent contact groups will no longer be required in childcare and playwork settings. Settings will need to ensure that they maintain detailed records of attendance and activities to enable clear identification of close contacts to a positive case.

Are Inspections continuing?

England:
Ofsted resumed on-site Education Inspection Framework (EIF) inspections of registered early years providers on 4 May 2021.

Ofsted continues to issue rolling updates on its website.

Ofsted notifications and fast-track applications

 
Ofsted has changed some of its early years information on its rolling COVID-19 update which includes:

Notifications: If you have any confirmed cases in your setting (either child or staff member), or if your setting has been advised to close as a result, you should report this to Ofsted as soon as reasonably practical, and in any case within 14 days. Notifications of confirmed cases of COVID-19 will not prompt a regulatory visit from Ofsted.

Fast-track application process:
To support local authorities and registered early years and childcare settings, Ofsted has put in place temporary arrangements that allow them to fast-track applications and requests from existing providers only to operate provision in a different way or to set up additional premises. Contact your local authority for further information. Ofsted will review this process in September 2021.

Ofsted’s National Director, Regulation and Social Care, Yvette Stanley, has also written an open letter to all early years providers thanking you for your efforts over the pandemic and sharing the positive feedback she has heard about your flexibility and commitment to excellence. You can read the full message here.

Ofsted EIF inspections and the EYFS – what you need to know

Today Ofsted launched a brand new page on gov.uk: ‘Ofsted EIF inspections and the EYFS’ for registered early years providers.

It has answered the most frequently asked questions on inspection practice and the EYFS. This is to help all registered early years providers with what they need to know now and what they need to know for the start of the revised EYFS framework on 1 September 2021.

The early years sector and the DfE have supported the development of the content and Ofsted has made sure that the answers are clear and easy to read and reference the key parts of the relevant inspection handbooks. Content will be refreshed in-line with handbook updates or sooner, should there be a need.

The page can be accessed here or directly from our handbook landing page.

Wales:
CIW and Estyn have issued a joint statement noting the decision that the current suspension of joint inspections will continue until at least 31 August 2021. The situation will be reviewed again during the summer term to consider the options for restarting the joint inspection programme in the future. It is aimed that the sector will receive at least 6 weeks’ notice before resuming routine joint inspections.

During the summer term they will liaise with a range of stakeholders to evaluate whether any adjustments are required to the joint-inspection framework and our arrangements in light of the pandemic. 

Engagement phone calls with providers will continue during this time.  

Scotland: Scaling down
Care Inspectorate: “We have taken the decision to scale down our inspections of care services and our joint inspections of local authority social work services and health and social care partnerships at this time, and put in place arrangements which will involve gathering information, assessing the level of risk in care services and establishing assurances about the quality of care people experience."

The Care Inspectorate has developed ‘Key Question 5’, a self-evaluation resource and tool which asks you to evaluate how well you are supporting children and families during COVID-19. The Care Inspectorate encourage you to complete the ‘self-evaluation tool’. Inspectors will request the completed self-evaluation from providers on a risk and sampling basis.

The Care Inspectorate asks that you do not send this to them until requested.

What notifications do early years settings need to make when there is a confirmed case of coronavirus?

Any confirmed cases of coronavirus (COVID-19) in the setting (either child or staff member), and/or if the setting is advised to close as a result, should be swiftly reported to Ofsted/CIW through the usual notification channels.

See our positive cases toolkit for NDNA members.

Disapplication of requirements

England: 
Find out more here: COVID-19 disapplications Please note that while these are due to end on 31 August 2021 their use depends on GovernmentCovid-19 restrictions applying. From July 19th the DfE expects the instances where this will be applicable to be reduced.

Wales
This ninth notice
temporarily disapplies regulations 3 and 4 of the Changing of School Session Times (Wales) Regulations 2009, to enable changes to school session times without the need for consultation or giving notice. This temporary disapplication only applies to changes to session times made due to the incidence of coronavirus and any changes made whilst the notice has effect will not be permanent. If you are providing wrap-around care we would recommend you contact schools you work with to ensure that you are aware of any plans to make changes to the start and end times of the school day which may affect the service you provide. This notice is effective for 28 days from 26 June and will be reviewed on a monthly basis.

Paediatric First Aid
Unless a setting is using the new regulations to disapply elements of the EYFS due to further local or national coronavirus (COVID-19) restrictions, providers must legally ensure a member of staff with a full PFA certificate is on site at all times when children are present, as set out in the EYFS.

Safeguarding

See this shared guide on keeping children safe from abuse and harm. This guide brings together sources of information about the main risks children may be vulnerable to during the coronavirus pandemic and signposts parents and carers to help and support available.

Foundation Phase Nursery provision

Settings that deliver funded Foundation Phase Nursery should follow the Protective Measures document for childcare services, and where appropriate, are encouraged to follow the learning guidance for settings and schools - making reference to the guidance within updated risk assessments, policies and operational procedures.

Health and Safety Executive (HSE) and Environmental Health spot checks 

The HSE is carrying out unannounced spot checks on businesses including early years settings to make sure they are complying with the COVID-19 regulations. HSE inspectors will want to see documents like your risk assessment and policies in place to ensure your setting is COVID-safe. A range of materials and resources for members are available including template risk assessments and if you would like to receive copies of these please contact us. You can also view advice from our partner Citation here.

These inspections can be unannounced and inspectors have a statutory right to enter your premises regardless of any policy you have on visitors. If HSE is using a third party agent to carry out inspections they will write to you in advance to inform you of ho tht agent will be.

Staff

Lay-off or short time working?

Our legal helpline says: 

Lay-off and short time working clauses, allow you to ask staff to stay at home or take unpaid leave if you are unable to provide them with enough work. Short time working is when hours are cut and lay-off is when staff are off work for at least one day. Staff may be able to apply for redundancy if they are laid off for either:

  • 4 weeks in a row, or
  • 6 weeks in any 13 week period
  • Staff may be entitled to statutory guarantee pay during lay-off or short time working.  The maximum entitlement is £29 per day for 5 days in any 3 month period.  For more information on eligibility, see www.gov.uk.

If you find yourself in the unfortunate situation where you have to consider redundancies, and need some pointers on how to restructure your business, the experts at our partner Citation have created a checklist to help guide you through the process. 

What if employees do not want to come to work due to fears about the coronavirus?

Our legal helpline says: 

It is important to listen carefully to any concerns employees have and consider if any alternative arrangements can be made.  It should be noted that the government has now advised that where employees are able to work from home, they should. As such if you are able to offer homeworking then you should do so.  

If you are unable to offer homeworking then it would be worth considering staff taking time off as holiday or unpaid leave.

In normal circumstances you would be able to take disciplinary action when an employee refuses to attend work.  As these are unprecedented circumstances we would consider exercising caution and seeking specific advice before considering disciplinary action in these circumstances.

England
This guidance 'Actions for early years and childcare providers during the coronavirus outbreak' covers information on staff who are classed as clinically extremely vulnerable (CEV). Shielding has been paused but staff in settings who are Clinically Extremely Vulnerable (CEV).  Staff in settings who are CEV should currently attend their place of work if they cannot work from home. DHSC has published updated guidance Clinically Extremely Vulnerable here.

Wales
The childcare and play frequently asked questions include the following updates:

Could some of my workforce be required to shield?
The advice for people who are clinically extremely vulnerable to follow shielding measures has now been paused. Our guidance for people, including children, who are extremely vulnerable to developing serious illness if they are exposed to coronavirus because they have a particular serious underlying health condition was updated on 1 April 2021.

For staff worried about being a higher risk of more serious symptoms, the COVID-19 workforce risk assessment should be completed. Staff are encouraged to share the results with their employer who may then take appropriate action.

See Guidance on protecting people defined on medical grounds as clinically extremely vulnerable from coronavirus (COVID-19) – previously known as ‘shielding’ Guidance for Wales.

If I close my nursery, do I have to pay my staff?

Regarding staff, our legal helpline says:

"Generally, if staff are ready and willing to work, but you are unable to provide work, staff will be entitled to their normal pay. It is worth checking your employment contracts to see if there are any provisions for short time working or lay-off.   Any closure as a result of the Coronavirus will allow you to invoke these provisions. An employment contract can be varied with the agreement of both parties.  As a result staff may be prepared to accept reduced hours or reductions in pay in order to avoid redundancies and to safeguard their jobs in the long term."

How can I support staff well-being at this time?

We know that there is a lot of pressure, anxiety and worry around at the moment. Our associates have put together blog posts on supporting well-being at this time. These well-being blog posts can be found here. Access our FREE online course 'Supporting Well-being in the early years workforce' here to help you to learn strategies for improving the health and well-being of yourself and your team.

The Anna Freud Centre has produced this report and toolkit on staff-well-being. 

Wales
The Welsh Government provided £1.3 million to support mental health services in Wales to include the C.A.L.L Helpline - a dedicated mental health helpline for Wales - can provide you with confidential listening and emotional support, and help you contact support that may be available in your local area. Call 0800 132 737 or text 'help' to 81066. 

Coronavirus Job Retention Scheme (CJRS)

We have received further updates from HMRC about the CJRS. Firstly, the deadline for July’s claims is Monday 16 August.
 
For July, you can claim 70% of your furloughed employees' usual wages for the hours not worked, up to a cap of £2,187.50 per month. You’ll need to pay the difference, so that you continue to pay your furloughed employees at least 80% of their usual wages in total for the hours they do not work, up to a cap of £2,500 a month including your contribution.
 
Changes to the CJRS from this month

From 1 August to the close of the scheme, the UK Government will pay 60% of employees' usual wages for hours not worked, up to a cap of £1,875. You’ll need to continue to pay the difference, so that you pay your furloughed employees at least 80% of their usual wages in total for the hours they do not work, up to a cap of £2,500 a month including your contribution.

Apprentices

See the Government's 'Providing apprenticeships during the coronavirus (COVID-19) outbreak' guidance for support for apprentices and employers in response to the impact of coronavirus (COVID-19). The flexibility to suspend level 2 functional skills for level 2 apprentices has been extended. There is also information on support for apprentices who have been made redundant as a result of the pandemic. Find out more about financial support for apprenticeships in England here.

DBS checking

The DBS have issued an update stating:

"We are aware that it is taking longer than usual to process UK passport applications, as a result of the coronavirus (COVID-19) outbreak. In response to this, DBS will temporary allow expired UK passports to be used for ID checking purposes, if within 6 months of their expiry date. The applicant must be in possession of their expired passport, to use it as an identity document."

SSSC toolkit of information to support placement providers, students and centres

The SSSC has published a toolkit of information to support placement providers, students and centres to support the safe return of students to placements. Read more here.

Health and safety guidance

Reporting incidents of COVID-19

New guidance is now available around what and when you need to report an incident relating to COVID-19 and how you can do this online.

Wales
The Welsh Government have issued guidance on the Covid Alert levels for Wales noting that childcare can remain open throughout all levels, there is specific guidance for Childcare and play settings which includes a number of frequently asked questions.

Retainers and fees for parents

Answered by our legal helpline:
"For specific advice in relation to your individual circumstances, we would always recommend you take your own legal advice. NDNA members, have access to a legal advice helpline provided by our partner Composite Legal. 

Charging retainers and fees for parents very much depends on the contract you have with parents. We appreciate that every nursery is different and while some can’t or don’t want to charge parents any fees, others need to in order to be able to survive. It’s a good idea to check what you already have in place and if you are in any doubt, contact the NDNA legal helpline. (See also our section on CMA guidance).

There is a useful Q&A for parents and carers about closures which may answer some of their queries.

How do I go about charging parents for a retainer for their child’s place?

If your service is unavailable to parents, then a retainer fee can be agreed with parents.  The reason for charging the retainer fee, should be to enable you to provide the space to the parents once the service is available.  You should consult with parents to find out if they are prepared to agree to a retainer fee.  Any retainer fee should be agreed in writing.

What are the legal implications of a retainer or charging a fee when parents aren’t sending their child to nursery?

Contracts are based on agreement.  As we are in unprecedented circumstances, it is unlikely that contracts would deal with the current situation.  As such, the safest route would be to agree individually with parents how the contracts should be amended to reflect the current circumstances.

Insurance

Following the ruling on 15 January 2021, from the Supreme Court the FCA has published a policy checker and FAQs  to help policyholders find out if their insurance policy may cover business interruption losses caused by COVID-19 as a result of the FCA’s test case and what you can do next. 

The policy checker helps you to check whether the wording in your policy is the same as, or very similar to, the 21 policies in the ‘representative sample’ considered by the Courts in the FCA’s test case. If so, the High Court and the Supreme Court rulings provide important guidance on the way your policy should be interpreted and on the strength of your claim, based on the wording of your policy. The policy checker will indicate whether your policy is likely to provide cover and the policyholder FAQs will give some further information about how to make a claim.
 

Competition and Markets Authority (CMA)

This does not constitute legal advice and as all situations and agreements will be different, you should always seek independent legal advice. NDNA members have free access to our legal helpline. The CMA has issued an open letter to the early years sector combined with its guidance to childcare providers on consumer rights during the pandemic. 

For specific advice in relation to your individual circumstances, we would always recommend you take your own legal advice. As an NDNA member, you have access to a legal advice helpline provided by our partner Composite Legal. 

Update 23 December: The DfE has updated its guidance on charging parents. Providers need to know what the guidance says and use their own judgement re their own circumstances and situation. We would advise our members to ring our free legal helpline to seek legal advice and further clarification for their own situation.

Charging parents and carers if they are unable to take up their child’s place

Providers should continue to be fair and balanced in dealings with parents or carers and must continue to avoid unfair charging practices. Providers should refer to:

The general principle is that providers should not charge parents or carers for services that cannot be provided. If there is a barrier to accessing childcare, based on government guidance or the law, the provider should not charge the parents or carers for this period. For example, from 28 September people in England are required by law to self-isolate if they test positive for coronavirus or are contacted by NHS Test and Trace. Accordingly, if a child is self-isolating having been contacted by NHS Test and Trace, the provider should not charge the parent or carer for this period. 

As an NDNA member you have free access to our legal helpline.

Is there a difference between a nursery retainer, a contribution and voluntary contributions?

Yes – retainers or contributions to hold places while a setting is closed would be included in any agreement between the business and parents while a voluntary contribution is something that isn’t bound by a formal agreement but is a response to a specific period. 

Under normal circumstances a retainer might also act like a deposit to hold a place for a future starting date, such as when a child reaches a certain age or when the parent plans to start working.

Under the new CMA advice, contributions covering a proportion of your fixed costs during a period of closure outside of your control are clearly allowed. However these should be low (there is no definition of low because every setting will be different) and link to unavoidable costs settings face.

This might include property costs, service agreements, utilities and other fixed costs but should also reflect any savings that result from a closure period, such as staff furlough or reduced costs.  

You might want to provide a breakdown of what makes up this retainer or fee contribution, to demonstrate to a parent how much it would cost to ensure the place is retained for their child for an agreed period of time.  The CMA’s guidance is clear that it is unlikely to object to a term within a contract which allows a business to request payment of a small contribution to its costs while the provision of the service is disrupted. If, after reading the CMA advice, you are unsure as to whether or not your charges were fair and reasonable, you should seek legal advice. As an NDNA member you have free access to our legal helpline.

Can nurseries ask for voluntary contributions from parents?

So long as the payment is voluntary i.e. a parent/carer has not be placed under any pressure to make that payment and has confirmed in writing their willingness to do so, there is nothing in law that prevents you from doing this.  

If you speak to your parents about why you are asking for voluntary payments during a period of forced closure you might want to think about:

  • The costs that they help cover and lack of assistance for other lost income
  • That these contributions are entirely voluntary and there is no commitment from the parent to keep paying them
  • You shouldn’t make children’s places or the survival of the setting part of the agreement as this may be viewed as a coercive business practice. 

My current nursery contract states that I can charge full fees during enforced closures. Have I acted within the law by charging full fees during the pandemic?

The CMA’s guidance makes clear that a contract term requiring parents to continue to make full or substantial payment to providers that are not providing the services agreed in the contract, are likely to be unfair and unenforceable.

COVID-19 has presented new challenges across the board and terms that were designed to cover closures for training days or adverse weather are likely to be found to be unfair if enforced for longer closures. Even if agreed by the parents, if a term is seen to be unfair in court, it will be overturned and you would have to refund money taken as a result of it. 

The CMA’s advice states that charging full or a high proportion of fees (over 50% is likely to be in this category) during a period where you haven’t been able to provide the agreed service is likely to be viewed as unfair and you may want to think about refunds in those circumstances. Before acting always seek independent legal advice. Our legal advice line is a free resource for members. 

Are nursery notice periods and cancellation fees enforceable during the pandemic?

The CMA received several complaints about providers using excessive cancellation fees or lengthy notice periods, to make a parent continue to pay even where the service was closed during lockdown.

No contract should include disproportionate sanctions for ending the contract and providers should not use terms requiring notice to be given or payment of cancellation fees if the provider is unable or unwilling to actually provide the service as agreed in the contract. 

Notice periods are appropriate so long as they are reasonable in length. The length of a notice period should generally reflect how long it would take to replace a child. The CMA suggests settings with long waiting lists should consider short notice periods as there would be little or no detriment to the business when a child leaves.

Cancelation fees are unlikely to be enforceable unless you can demonstrate a realistic loss of income to the business as a direct result of a child leaving. 

NDNA CMA Do's and Don'ts document

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Download our 'CMA Advice on parental fees during lock down: Dos and Don’ts' document.

Download CMA Dos and Don’ts

 

 

See all coronavirus support  

Disclaimer:  Any information above from our legal helpline is provided for general guidance regarding rights and responsibilities.  This should not be treated as formal legal advice and no lawyer-client relationship has been created. Our legal helpline makes every reasonable effort to ensure this information is accurate at the time of publication but laws may have since changed.