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
  • Checklist of things to consider 
  • Protecting your business 
  • Local lockdowns
  • Reopening/closing
    • Reopening your nursery setting
    • Can my local authority make me open for one child?
    • Do I need to close my setting?
    • Guidance on cluster and hub provision
    • Ratios
    • Inspections
    • Disapplication of requirements
    • Safeguarding
    • Foundation Phase Nursery provision
    • Landlords in Wales charging childcare settings rent when closed
    • 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)

  • Scottish Government specific guidance
    • Childcare monitoring return
    • Outdoor play

  • Health and safety guidance
    • Reporting incidents of COVID-19
    • Informing DfE and Health and Safety Executive of staff death

  • CMA plans to investigate nurseries
  • Education, Health and Care Plans (EHCP) legislation
  • Delaying and deferring school start dates
  • Key workers and vulnerable children 
  • Retainers and fees for parents (answered by our legal helpline) 
  • Insurance.

Checklist of things to consider:

  • Familiarise yourself with coronavirus advice and information here
  • You may find this Government action card helpful in the case of a suspected case or possible outbreak of coronavirus at your setting
  • Check your business insurance – are you covered for business continuity if your nursery has to close due to the virus spreading? Do not change your insurance company until you fully understand what they will and won’t cover in event of a closure due to the outbreak. Get it in writing if you believe you are covered. Find out more here.
  • 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
  • Develop a policy to protect your setting - speak to staff about their understanding of the virus, what symptoms to look out for and what to do if they might have them or have come into contact with someone with them. Speak to parents and families about the latest health advice. Ask parents and staff to sign your policy to ensure they know what is expected of them to keep your nursery as safe as it can be
  • Check your health and safety policies – are effective hygiene processes in place to limit the spread of viruses?
  • Develop a business continuity plan to ensure your business can continue to run should the virus affect staff.
  • Look at the Staff Retention Scheme to see how this can help your business.

Protecting your business

  • Keep track of the latest government advice 
  • Check your parent and staff contracts and try to plan for how you can remain open in the face of staff illness
  • Contact your local MP – you can adapt our template letter which asks them to make sure nursery businesses can be fully supported during the outbreak
  • Develop a staff and parent policy for COVID-19 so that you can control and protect your environment
  • Check your business insurance – are you covered for business continuity if your nursery has to close due to the virus spreading? Do not change your insurance company until you fully understand what they will and won’t cover in event of a closure due to the outbreak. Get it in writing if you believe you are covered 
  • Develop a COVID-19 protocol to protect your setting - speak to staff about their understanding of the virus, what symptoms to look out for and what to do if they might have them or have come into contact with someone with them. Speak to parents and families about the latest health advice. Make sure parents and staff know what is expected of them to keep your nursery as safe as it can be
  • Check your health and safety policies – are effective hygiene processes in place to limit the spread of viruses? Thoroughly clean down all surfaces.
  • Look at all the government financial support available.

Local lockdowns

England

Health Secretary Matt Hancock has announced (September) that regular informal childcare arrangements can continue in despite of any lockdown restrictions on households meeting. The Health Secretary’s announcement means that pick up and drop off arrangements can continue as children are able to go into different households where it is part of “a consistent childcare relationship”. However, this does not allow for things like playdates or parties.

See information about local lockdowns in England here.

Scotland

See information about local lockdowns in Scotland here.

Wales 

See information about local lockdowns in Wales here.

Reopening/closing

Reopening your nursery setting

See our page of free member resources including: risk assessment template, unfurloughing guide and letter, visitor declaration form and more here.

See our FAQs for reopening nurseries here.

Can my local authority make me open for one child?

We have already seen some cases of local authorities urging nurseries to stay open or re-open for a handful of children, in some cases even for just one child. 

We have produced a short guide to the powers that local authorities now have following the Coronavirus Act being passed as law. If you are approached to re-open or asked to stay open when it is just not viable, please have a look at this guide to make sure the council is following the processes they should and so you know the sort of things you can ask for.

Members can login to see the guide here.

Do I need to close my setting?

England
The emergency legislation which gives government the powers to enforce nurseries in England to either close or stay open to look after key work children has now been passed in Parliament.

Although nurseries are now open, they may be closed to all but critical workers and vulnerable children in the event of a local lockdown such as the one in Leicester in July. If you are concerned about reports in your local area you should contact your local authority to find out what the containment plans might be and at what point you might be affected.

Scotland
Further to the Education Minister’s statement in Parliament on 19 March,  there is a detailed outline in a letter sent to the Local Authorities of the schools and nursery closures. 

The letter contains very detailed guidance with regards all aspects of the closures and in particular to Private Nurseries the following is set out:

“We are advising private and third sector childcare providers that they can remain open subject to the following:

  1. That they refocus their operating models to support solely the children of critical workers and vulnerable children; and
  2. That, wherever possible, they do this in coordination with local authorities in their areas, to ensure maximum efficiency.
    These measures apply to all registered day-care of children settings (including afterschool, breakfast clubs and holiday provision)”

See the Scottish Government's 'Coronavirus (COVID-19): childcare closures and emergency provision' guidance.

Further details in regards to regulatory flexibility are included in this letter from the Care Inspectorate here.

Wales
Childcare providers in Wales are still allowed to operate. Children can continue to access their usual childcare provider, and you can travel to provide, access or receive childcare. All childcare providers, including Flying Start childcare, can remain open and offer their normal services, including provision through the half term holidays.  This includes childcare providers operating from community centers, places of worship and school sites. Nannies can also continue to provide childcare.

We know that some of you might have out of school and holiday clubs and we understand that these forms of childcare will also be outside the restrictions and will be allowed to run. However, you might want to have discussions with your school and local authority, especially if you operate on a school site.

Finally, we are aware that there may be concerns about parents withdrawing from settings during this period. As you are allowed to provide services under these restrictions, you are entitled to ask for fees in line with your usual holidays or absence policies. You know your settings and parents better than anyone so it is for you to decide whether you want to offer any reductions for parents who don’t want to take up places during these week.

There’s more information about the consumer rights considerations following the Competition and Markets Authority guidance and as members of NDNA you are entitled to use our free legal helpline should you have any questions about parental fees in relation to your own agreements.

Guidance on cluster and hub provision

The Department for Education has issued new guidance for introducing a “cluster” or “hub” model for childcare. In some places this model is already operating due to very low numbers of children.

In all instances, public health must be the top priority and social distancing measures must be in place. The guidance includes workforce, mental health, safeguarding, SEND, funding and health and safety.

Ratios

In England, providers need to make their own decisions regarding ratios. EYFS guidance will be republished - but there is currently no plan to give any further advice. Look at 3.30 and 3.31 in the EYFS in cases of emergency, provided children kept safe:
  
3.30: The ratio and qualification requirements below apply to the total number of staff available to work directly with children. Exceptionally, and where the quality of care and safety and security of children is maintained, changes to the ratios may be made. For group settings providing overnight care, the relevant ratios continue to apply and at least one member of staff must be awake at all times.   
3.31: For children aged under two:

  • There must be at least one member of staff for every three children
  • At least one member of staff must hold a full and relevant level 3 qualification, and must be suitably experienced in working with children under two
  • At least half of all other staff must hold a full and relevant level 2 qualification
  • At least half of all staff must have received training that specifically addresses the care of babies
  • Where there is an under two-year-olds’ room, the member of staff in charge of that room must, in the judgement of the provider, have suitable experience of working with under twos.

Are Inspections continuing?

England: Yes
Ofsted informed us that they would carry out visits in the autumn term and hope to resume normal inspection activity in January. However, it has been reported in the TES that following a legal challenge from NAHT, Ofsted has confirmed that visits “fall within the concept of inspections.” We don’t believe this changes the nature of the visits but we are aware that this does not provide the clarity you need on this situation and have approached Ofsted for clarification regarding visits to early years settings.

Wales: No
Together CIW and Estyn have decided that the current suspension of joint inspections of non-maintained settings will continue until at least 31 December 2020. They will review the situation in the autumn and consider the options for restarting the joint inspection programme in the future. They aim to give the sector at least six weeks’ notice before resuming routine joint inspections. Estyn has said that it will work with stakeholders to decide at what point it would be appropriate to restart core inspections and other formal monitoring work in non-maintained settings. Estyn will give the same notice period as usual, even if a provider had their inspection cancelled. It will not necessarily prioritise those whose inspection was cancelled due to COVID-19.

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. This will not be before 10 August 2020.

Disapplication of requirements

England: To support early years providers during the coronavirus (COVID-19) outbreak, in April 2020 the government temporarily disapplied and modified certain elements of the EYFS statutory framework. The current disapplications will be lifted on 25 September 2020 and we will enter a 2-month transitional period for disapplications around staffing levels and Paediatric First Aid. This is in recognition that some providers may need time to get back to full staffing levels once the disapplications are lifted.

Further restrictions or requirements related to coronavirus (COVID-19) due to a local or national lockdown may affect a provider’s ability to comply with the EYFS. Therefore, the Government has laid new regulations which will come into force on 26 September 2020 and (with the exception of the EYFSP disapplication) will allow the disapplications to reapply where a provider is prevented from complying with the EYFS due to coronavirus related restrictions of requirements which have been imposed by government. Full details can be found in the updated EYFS disapplications guidance. 

Wales: The Welsh Government has decided to further extend the temporary relaxation of some of the requirements in its National Minimum Standards for Regulated Childcare until 31 December 2020. It is hoped that this further extension will help by giving settings continued flexibility during what is seen as a period of recovery for many settings and adjustment to new working practices. Any relaxations agreed or reviewed in the period after the publication of this circular letter and until 31 December will be restricted to the guidelines in this letter and subject to local authority approval on a case by case basis. See the letter here and the guidance here.

 

Safeguarding

The Department for Education has joined with the Home Office, the Department for Digital, Culture, Media and Sport, and Public Health England to produce a 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.

Landlords in Wales charging childcare settings rent when closed

The Welsh Government has shared the following information in response to issues raised regarding private landlords charging rent when the settings are closed.

The Coronavirus Act 2020 introduced a moratorium on landlords commencing forfeiture proceedings for non-payment of rent.

Welsh Government extended this moratorium period recently from 30 June to 30 September, with a further review of this date due in August. 

There is also a link to the UK Government’s Code of Practice:

The UK Government has published a Code of Practice to encourage commercial tenants and landlords to work together to protect viable businesses, and also introduced further measures covering Wales, including laying a secondary legislation to prevent landlords using Commercial Rent Arrears Recovery unless they are owed 189 days of unpaid rent. The time period for which this measure is in force was extended from June 30 to September 30, and tabling an amendment for the Corporate Insolvency and Governance Bill that will extend tenant protection measures regarding statutory demands and winding-up petitions until 30 September.

At NDNA we have produced a template letter for members seeking to enter negotiations with landlords about rent holidays. If you are experiencing legal difficulties with your landlord you can also contact our free legal helpline for advice and support.

Health and Safety Executive spot checks

We have been made aware that the Health and Safety Executive is carrying out spot checks on businesses to make sure they are complying with the COVID-19 regulations. These powers were made available earlier in the year but we understand early years settings are now being visited as well.

We understand that these inspections are unannounced and 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.

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 allowing employees to go onto the Retention Scheme – although this has now closed to new applicants - take 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.

You can also direct employees to the government shielding guidance in education and childcare settings here.

Shielding is due to end 1 August in England.

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 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. 

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).

As of 13 July, training providers can now welcome back 19+ apprentices into educational settings and that that 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.

 

Shielding

The Government has announced that in England, the guidance to those who are ‘shielding’ because they are classed as extremely clinically vulnerable has been slightly relaxed. This means that people can go out with members of their own household or meet with one person from outside their household if they maintain social distancing.

While this has changed for those people in their personal life, as employers you still need to be aware of the guidance for those who are “clinically vulnerable” and “clinically extremely vulnerable” in the workplace.

The strict shielding guidance for clinically extremely vulnerable people has been paused from 1 August. However, the Government has included specific information covering local lockdowns where this pause may no longer apply and those people who have been classified as clinically extremely vulnerable should still shield.

In Wales, the Minister for Health and Social Services Vaughan Gething announced changes for people shielding from coronavirus, introduced from Monday 1 June. People who have been shielding can now take exercise outdoors and meet people from another household, as long as it takes place outdoors. 

There are two changes to the advice for those shielding in Wales: 

  • Outdoor exercise is unlimited, as long as individuals strictly follow social distancing rules and hygiene practices
  • Those who are shielding can meet outside with people from another household – but should not go into another person’s house or share food with them
  • There are no other changes being made to the advice for those who are shielding at this stage. People who are shielding should continue to follow all the other advice previously given. They should not go shopping or attend work outside of home.

More information for Wales settings is available on shielding and protecting people, defined on medical grounds as extremely vulnerable.

The Welsh Government has announced that, from 16 August, shielding will be paused for everyone on the shielding list (children and adults) unless the number of COVID-19 cases in the community starts to rise significantly.

The HSE has developed Working safely during the coronavirus (COVID-19) outbreak guidance to support employers. It's designed to help you make your work and workplace safe (be COVID-secure) and to help you to manage the risk associated with restarting or running your business during the outbreak.

The guidance includes a section on protecting vulnerable workers and supporting shielded workers returning to work outlining that as an employer, you have a legal duty to protect workers from harm. You should make sure you consider the risk to workers who are particularly vulnerable to coronavirus and put controls in place to reduce that risk. 

During the coronavirus (COVID-19) outbreak, the government has defined some people as clinically extremely vulnerable (shielded). Shielded workers are at increased risk of severe illness from coronavirus. They cannot return to workplaces before at least 31 July 2020 in Scotland, from 1 August 2020 in England and from 16 August 2020 in Wales when shielding is paused. 

DBS checking (Wales)

Care Inspectorate Wales has shared information regarding the temporary DBS identity checking arrangements in place during the COVID-19 pandemic on the use of expired passports for DBS identity 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."

 
Scottish Government specific guidance

 

Scottish Government's childcare monitoring return

Private and third-sector all-day childcare services including nurseries, out of school care and childminders should complete the Scottish Government's childcare monitoring return. Information about local authority settings will be gathered separately.   

This information is collated by Scottish Government and, alongside the local authority data, will be used to monitor the level of provision during the outbreak of the coronavirus (COVID-19).  

It is acknowledged that some settings have now closed.  If your setting is closed, please submit the survey once. If your setting becomes operational please complete this on a daily basis before 15:00. The Scottish Government appreciates any continued support with this.

Guidance on outdoor play in Scotland

The Scottish Government has released guidance on outdoor play at emergency childcare settings. 

Children attending emergency childcare hubs should be encouraged to go out every day, using the private outdoor spaces attached to their settings. Spending time outside, engaged in active play, is good for the mental and physical health of all children. This exercise and time outdoors is especially important to maintain during the COVID-19 restrictions, which we know may cause high levels of stress and anxiety to children. As this outdoor space is private, and not accessible to the general public, children are not limited in how many times they go in and out of the setting during the time they attend. Think of this outdoor space in the same way that you would your own garden.

Download this guidance here.

Health and safety guidance

Reporting incidents of COVID-19

We have received a notification from the Health and Safety Executive that the rules around Reporting of Injuries, Diseases and Dangerous Occurrences (RIDDOR) have changed due to COVID-19. RIDDOR puts duties on employers and people in control of work premises (the Responsible Person) to report certain serious workplace accidents, occupational diseases and specified dangerous occurrences. 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.

Informing DfE and Health and Safety Executive of staff death

See DfE guidance on who to inform should the worst happen and an employee in any educational or care setting dies, either as a result of COVID-19 or any other cause. 

Guidance is also available around what and when you need to report an incident relating to COVID-19 and how you can do this online with RIDDOR. 

CMA plans to investigate nurseries

Since the CMA’s announcement of its investigation into childcare and nurseries with regards to charging parents who cannot use their services, we know that some members have become worried. Hence, we have developed a template letter that providers might find useful if they wish to charge parents. There are two versions of the template letter - one for open and one for closed settings.

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. 

NDNA has joined with PACEY and the Scottish Childminders Association in making further representation to the CMA about their planned investigation into consumer rights issues – which singled out childcare providers. We have been clear that we don’t believe this is based on a fair representation of practices across the sector. We believe that the review should take account of the financial pressures on providers and consider the impact on consumers regarding the availability and quality of childcare provision if nurseries are forced out of business by this approach.

Education Health Care Plans legislation

The government updated its guidance 'Changes to the law on education, health and care needs assessments and plans due to coronavirus' with a variety of additions. This temporary legislation will affect cases in progress from 1 May until 25 September.

This may mean that if there are outbreaks of Coronavirus cases that put additional pressures on local authorities, health commissioning bodies or other responsible organisation – there may be delays to actions required under statutory timescales.

The updates include:

  • Cases in progress on 1 May
  • Annual reviews for those with EHC plans changing phase of education
  • Actions following a tribunal ruling.
  • The guidance does provide some examples which may help you understand the changes.

Delaying and deferring school start dates

We have had enquiries raised with us about delaying or deferring children’s school start dates either because children have lost out on time in early years settings before moving on or under circumstances where schools might not be able accommodate a full cohort of children. We have already raised this proposal with the Department for Education who have confirmed that delaying for one or two terms (depending on the child’s date of birth) is an option in all cases where a place has been offered. You may want to make parents aware of this option and they can talk to the school initially while local authorities should have their own processes for people to do this. Deferral is also an option for summer born children. 

We will continue to push these discussions so that for providers and parents who want to do this, there is the support in place to facilitate this.

The Welsh Government has confirmed that all pupils will be able to return to school in September. The announcement follows a recommendation by the Welsh Technical Advisory Group. The Children’s Commissioner for Wales welcomed the government's positive response to calls to maximise children and young people’s physical attendance at schools, colleges and other education settings in September.

Key workers and vulnerable children 

We've created a keyworker letter template for members to amend for their team. This can be used if they are stopped by the police or challenged on their way to work depending on what stage of lockdown your area/country is currently in. Childcare staff are classed as critical workers for the COVID-19 response and are allowed to travel to work. We suggest that staff should also consider having ID that they can provide for cross-referencing.

England

Nurseries in England are now fully reopened. However, if a local outbreak occurs, it is useful to know about the list of key workers: 

You will still receive your flexible free entitlement funding for the children in your setting for the rest of this term and the Summer term whether you are open or not. 

The DfE has also updated its guidance on supporting vulnerable children through the outbreak to reflect the wider plans to welcome more children back to nurseries.

Vulnerable children still remain a priority for nurseries but the DfE has given further examples of the types of children that might be considered “otherwise vulnerable”. This is at the discretion of the nursery.

This might include children on the edge of receiving support from children’s social care services, adopted children, those at risk of becoming NEET (‘not in employment, education or training’), those living in temporary accommodation, those who are young carers and others at the provider and local authority’s discretion.

Scotland
We have received further detail from the Scottish Government as to the definition of key workers here

Retainers and fees for parents

We have developed a template letter that providers might find useful if they wish to charge parents. There are two versions of the template letter - one for open and one for closed settings.

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. 

There is a useful Q&A for parents and carers about closures which may answer some of their queries. This includes charging parents whose children are NOT in nursery. The government is asking nurseries to be “reasonable and balanced” regarding paying fees
." 

Many of my parents are not sending their children back to nursery until September. I can’t afford to keep going unless I charge them a retainer. Am I allowed to do this please?

The starting point for this will depend on whether or not the service is available to parents.  If the service is available and parents make the decision not to send children then fees may be charged as normal.  If the parent wants to end the contract, they can be required to give notice in accordance with the terms of the contract.

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.

What is the CMA investigation and how can I make sure I won’t be investigated?

The CMA is investigating service providers who continue to charge for services, when the service is unavailable.  

If a service is not available then fees should not be charged.

Members can access our free legal helpline here.

Insurance

We know that insurance is still a big worry for providers. We have been working with the Treasury about the concerns of the sector.

Following the judgment from the High Court, insurers will need to apply the relevant findings of the test case to potentially affected claims or complaints. This will require them to work through the full details of the judgment and review this carefully to assess its application to individual claim circumstances of policyholders who may be impacted. However, insurers were obligated to directly communicate with policyholders who have made claims/complaints potentially affected by the judgment to explain the next steps within seven days.

Our understanding is that Pound Gates has written to all nursery policyholders stating that business interruption losses arising from the pandemic are not covered under the sample Ecclesiastical policies considered as part of the test case and therefore Ecclesiastical are not required to pay claims on this policy.

This is extremely disappointing news for both NDNA and our members who have insurance with Ecclesiastical. As such, we have been in close contact with the FCA legal team to highlight the injustice of this outcome and pushed for the FCA to appeal against the judgement.

The High Court has confirmed that there will be a consequential hearing taking place on 2 October where any applications for appeal will likely be made. The court has agreed to live-stream this hearing if it is heard remotely. Following our contact with the FCA, NDNA is hopeful that the judgement made surrounding Ecclesiastical’s policy wording being upheld will be appealed. 

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.