Additional Conditions of Funding

1. Key Responsibilities

Cambridgeshire County Council Responsibilities:

1.1 The council must secure a free entitlement place for every eligible child in their area,

1.2 The council should work in partnership with providers to agree on how to deliver entitlement places, and

1.3 The council must contribute to safeguarding and promoting the welfare of children and young people in their area.

Provider Responsibilities:

1.5 The provider must comply with all relevant legislation and insurance requirements,

1.6 The provider should deliver the entitlements consistently to all parents, whether in receipt of 15 or 30 hours and regardless of whether they opt to pay for optional services or consumables. This means that the provider should be clear and communicate to parents details about the days and times that they offer early years places, along with their services and charges. Those children accessing the entitlements should receive the same quality and access to provision.

1.7 The provider must follow the Early Years Foundation Stage (EYFS) Framework and have clear safeguarding policies and procedures in place that link to the council’s guidance for recognising, responding, reporting, and recording suspected or actual abuse.

Early Years Funding Entitlement

The provider is responsible for ensuring that all children meet the requirements for any of the entitlements appropriate to their age. The requirements are set out as follows:

Early Learning and Childcare for Two-Year-Olds – Appendix 3
Early Learning and Childcare for Three and Four-Year-Olds – Universal and Extended Entitlement – Appendix 4.

2. Flexibility

2.1 The provider should work with the council and share information about the times and periods at which they can offer entitlements to support the council in securing sufficient stretched and flexible places to meet parental demand in the council area. The provider should also make information about their offer and admission criteria available to parents before accepting a place in their setting.

2.2 Provision must be offered within national parameters on flexibility set out in Section A2 of Early Years Education and Childcare Statutory Guidance for Local Authorities. Where the provider is unable to offer the full entitlement to parents/carers per week but operates over at least 38 weeks per year, it should inform parents that they can take the remainder of their entitlement with another provider.

2.3 Where the provider opens for less than 38 weeks of the year it should make parents aware that they can take up the rest of their entitlement with another provider.

2.4 Parents/carers can choose to split funded hours with a council Maintained School Nursery/Academy Nursery and any other provider that is not the council or school/academy controlled. Parents can split their entitlement between multiple providers, though no more than two sites in one day.

2.5 A stretched offer is at the discretion of the provider. Children starting at a provider partway through a term should be offered a funded place based on a pro rata of the remaining available hours left in the term.

2.6 The provider acknowledges that parents may make claims for EYF places from more than one provider but there must not be provision across more than two sites in one day. This is to allow parents flexibility to use wraparound provision for short periods to meet their working needs. The minimum time which can be claimed by a provider in Cambridgeshire will be 30 minutes. The Parent/Carer Declaration has space for the parent to give the name of the other provider/s and the claim/s being made there.

3. Audit

3.1 The provider must allow representatives of the council to visit the premises at all reasonable times and make available records upon reasonable request as part of a fiscal and compliance audit. This will ensure that the provider is using public funds paid to them appropriately and lawfully and following the terms of this agreement. The provider shall reimburse the council upon demand where any over-payments of funding have been made.

3.2 Where the provider has knowingly or negligently submitted fraudulent claims and received payment, the council may terminate this agreement with immediate effect and will report the provider to the appropriate authorities.

3.3 The provider will ensure that it submits timely and accurate information, including but not limited to headcount data, census and sufficiency data, Parent/Carer Declarations, and invoices, following the published administrative guidance for Providers. Failure to do so may risk a penalty or delayed or suspended funding.

3.4 The council will not charge the provider disproportionate penalties for providing late or incomplete information leading to additional administration in the processing of EYF. Any charges should be proportionate to the inconvenience or costs incurred to the council because of the lateness or incompleteness of the information provided and the council will ensure charges are communicated to the provider.

3.5 The council will carry out checks and/or audits on providers to ensure compliance with the requirements of delivering the entitlements. This will usually occur as part of a rolling timetable, which will ensure that the provider is audited at least once every three years. The Provider must when required complete and return a short questionnaire designed to allow Providers to evidence and re-confirm their compliance with the funding terms and conditions.

3.6 The council will undertake an audit visit which will provide an opportunity for the Providers to discuss any matters arising, clarify any points regarding its funding, and for the council to help the provider comply with this agreement and, if needed, provide guidance where any changes in practice need to be made.

3.7 The provider shall ensure all relevant staff who handle admissions into the setting are aware of the conditions of this agreement and that such staff is aware of the EYF package the provider offers to parents.

3.8 The provider must publish its offer of EYF places in advance of children taking up a placement (and the expected monetary value). This includes how an EYF place can be taken, term time only or ‘stretched’, and the hours of the day that are classed as funded. Parents/ carers must see that they are receiving the child’s entitlement free, or the equivalent claimed for EYF hours.

3.9 The provider is responsible for ensuring the child is age-eligible for a funded place and ensuring all parents/legal guardians understand and can access the council’s Privacy Notice. The providers must check with the parent that the child does not receive either the full or part of the entitlement at another provider.

3.10 Where extended absences occur for medical reasons, appropriate support should be given to the family depending on their needs. Keeping a place open may smooth the way for a phased return and the best approach should be agreed upon with the parent and any professional working with the family. Extended absences due to visiting family can be included as part of the claim for a maximum of one month. If a child has been absent for four weeks within the same term, the provider must contact the EYF Team.

3.11 The provider acknowledges that the definitions of childcare and early years provision, under sections 18 and 20 of the Childcare Act, specifically exclude a child’s relatives from claiming to fund for the 15-hour entitlement. This also means childminders cannot claim for related children, this includes when a registered childminder is providing foster care to a child. Claiming in such circumstances could be considered a fraudulent claim and all monies will be re-claimed by the council.

4. Complaints Process

4.1 When a parent believes that their chosen Provider has not acted following the provisions of this agreement, legislation, and/or published statutory guidance following the legislation they should first discuss this directly with the provider.

4.2 The provider must ensure it has a complaints procedure in place that is published and accessible for parents who are not satisfied their child has accurately received their entitlement, as set out in this agreement and Early Education and Childcare Statutory guidance for Local Authorities.

4.3 Where any parent makes a complaint to the council it will investigate in line with its feedback policy for compliments, complaints and suggestions, and may undertake a full audit which could include a provider visit as set out in Part 2 above.

4.4 If a parent or provider is not satisfied with how their complaint has been dealt with by the council or believes the council has acted unreasonably, they can make a complaint to the Council Ombudsman. Such complaints will only be considered when the local complaints procedures have been exhausted.

5. Termination and Withdrawal of Funding

5.1 The council may terminate this agreement forthwith and withdraw funding by serving notice in writing upon the provider where:

the provider’s registration with Ofsted is suspended, or
the provider is in breach of any statutory requirement, or
the provider is in breach of any safeguarding requirement.

5.2 Where the council has investigated procedures outlined in Part 2, Section 2.1 above and has identified that the provider has not adhered to the provisions of this agreement or complied with legislation and published statutory guidance, the council may terminate this agreement forthwith with immediate effect and withdraw funding.

5.3 The council may terminate this agreement forthwith and withdraw funding by serving notice in writing upon the provider as required by Regulation 7 (Termination of the arrangements) of the Local Authority (Discharge of Duty to Secure Early Years Provision Free of Charge) Regulations 2014* and Regulation 37 (Arrangements between local authorities and early years Providers: termination) of The Childcare (Early Years Provision Free of Charge) (Extended Entitlement) Regulations 2016 (legislation.gov.uk).

*Size: 90.9KB File format: pdf

5.4 Where the provider wishes to withdraw from offering early years funded places it may terminate this agreement by serving written notice of at least 28 days upon the council.

6. Appeals Process

6.1 The provider may be denied approval to offer the entitlements or have their funding withdrawn as set out in clause 5.2 above. The provider can appeal against that decision.

6..2 If an appeal arises out of or in connection with this agreement or the performance, validity, or enforceability of it (appeal), then the parties shall follow the procedure set out in this clause.

6.3 Either party shall give to the other written notice of the appeal, setting out its nature and full particulars (Appeal Notice), together with relevant supporting documents. On service of the Appeal Notice, the Authorised Representatives (Early Years Funding Team) shall attempt in good faith to resolve the appeal.

6.4 If the Authorised Representatives fail to resolve the appeal within 14 days of service of an appeal notice, then either party, by notice in writing to the other, may refer the appeal to the Head of Early Years and Childcare Service who shall act in good faith to resolve the appeal as amicably as possible within 14 days of service of such notice.

6.5 If the Head of Service Early Years and Childcare fails to resolve the appeal in the allotted time, then the Appeal Procedure shall be deemed exhausted.

6.6 Recourse to this appeal procedure shall be binding on the parties.

Accordingly, all negotiations connected with the appeal shall be conducted in strict confidence and without prejudice to the rights of the parties in any future legal proceedings. Except for any party's right to seek interlocutory relief in the courts, no party may commence other legal proceedings under the jurisdiction of the courts or any other form of arbitration until 21 days after the parties have failed to reach a binding settlement by mediation (at which point the appeal procedure shall be deemed to be exhausted).

6.7 If with the assistance of a mediator, the parties settle, such settlement shall be reduced to writing and, once signed by the duly Authorised Representative of each of the parties, shall remain to bind on the parties.

6.8 The parties shall bear the legal costs of this appeal procedure, but the costs and expenses of mediation shall be borne by the parties equally.

6.9 While the appeal procedure referred to in this clause 6 is in progress and any party must make a payment to another party or allow a credit in respect of such payment, the sum relating to the matter in appeal shall be paid into an interest-bearing deposit account to be held in the names of the relevant parties at a clearing bank and such payment shall be a good discharge of the parties' payment obligations under this agreement. Following the resolution of the appeal, whether by mediation or legal proceedings, the sum held in such account shall be payable as determined following the mediation or legal proceedings, and the interest accrued shall be allocated between the parties pro rata according to the split of the principal sum as between the parties.

7. Insurance

7.1 The provider shall at its own cost-effective and maintain with a reputable insurance company a policy or policies of insurance providing the following cover at levels within the industry standard:

public liability insurance,
employer's liability insurance, and
professional indemnity insurance.

(The Required Insurances).

The cover shall be in respect of all risks which may be incurred by the provider, arising out of the provider's performance of the agreement, including death or personal injury, loss of or property damage, or any other loss. Such policies shall include cover in respect of any financial loss arising from any advice given or omitted to be given by the provider.

7.2 The provider shall give the council, on request, copies of all insurance policies referred to in this clause or a broker's verification of insurance to demonstrate that the Required Insurance is in place, together with receipts or other evidence of payment of the latest premiums due under those policies.

7.3 If, for whatever reason, the provider fails to give effect to and maintain the Required Insurances, the council may make alternative arrangements to protect its interests and may recover the costs of such arrangements from the provider.

7.4 The terms of any insurance or the amount of cover shall not relieve the provider of any liabilities under the agreement.

8. Freedom of Information

8.1 The provider acknowledges that the council is subject to the requirements of the FOIA and the EIRs and shall assist and cooperate with the council (at the Provider's expense) to enable the council to comply with these information disclosure requirements.

8.2 The Provider shall:

transfer the Request for Information to the council as soon as practicable after receipt and in any event within [two] Working Days of receiving a Request for Information,
provide the council with a copy of all Information in its possession or power in the form that the council requires within [five] Working Days (or such other period as the council may specify) of the council requesting that Information, and
provide all necessary assistance as reasonably requested by the council to enable the council to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the EIRs.

8.3 The council shall be responsible for determining at its absolute discretion whether the information supplied by the provider is:

exempt from disclosure following the provisions of the FOIA

or the EIRs, and/or

is to be disclosed in response to a Request for Information.

8.4 In no event shall the provider respond directly to a Request for Information unless expressly authorised to do so by the council.

8.5 The Provider acknowledges that the council may, act following the Secretary of State for Constitutional Affairs' Code of Practice on the discharge of public authorities' functions under Part 1 of FOIA (issued under section 45 of the FOIA, November 2004), be obliged under the FOIA or the EIRs to disclose Information:

without consulting with the provider, or
following consultation with the Provider and having taken its views into account, provided always that the council shall, following any recommendations of the Code, take reasonable steps, where appropriate, to give the provider advanced notice, or failing that, to draw the disclosure to the provider's attention after any such disclosure.

8.6 The provider shall ensure that all information produced during the agreement or relating to the agreement is retained for disclosure and shall permit the council to inspect such records as requested from time to time.

9. Confidentiality

9.1 Subject to this clause the parties shall keep confidential all matters relating to this agreement and shall use all reasonable endeavours to prevent their Representatives from making any disclosure to any person of any matters relating hereto.

9.2 This clause shall not apply to any disclosure of information:

required by any applicable law, if clause 8 shall apply to any disclosures required under the FOIA or the Environment Information Regulations,
that is reasonably required by persons engaged by a party in the performance of such party's obligations under this agreement,
where a party can demonstrate that such information is already generally available and in the public domain otherwise than because of a breach of this clause,
by the council of any document to which it is a party and which the parties to this Agreement have agreed contains not commercially sensitive information,
to enable a determination to be made under clause 8,
which is already lawfully in the possession of the receiving party, before its disclosure by the disclosing party,
by the council to any other department, office, or agency of the government, and
by the council relating to this agreement and in respect of which the provider has given its prior written consent to the disclosure.

9.3 On or before the Termination Date the provider shall ensure that all documents and/or computer records in its possession, custody, or control which relate to personal information of the council's employees, ratepayers, or service users, are delivered up to the council or securely destroyed.

10. Data Protection

10.1 The provider shall (and shall procure that any of its provider’s staff involved in the provision of the agreement shall) comply with any notification requirements under the Data Protection Legislation and both parties shall duly observe all their obligations under the Data Protection Legislation which arise in connection with the agreement.

All early years funding application data is stored securely and maintained following the Data Protection Act. Cambridgeshire online systems that are publicly available for entry of personal application data are regularly independently tested to assess the risk of penetration and to guard against unauthorised entry for access to personal or any other data. This includes ensuring that the username and password access meets industry standards.

10.2 The council and the provider shall always comply with their obligations under Data Protection Legislation at all times and as set out below.

Information Governance – General Responsibilities

10.3 The provider acknowledges that it will comply with Data Protection Legislation which includes UK GDPR and the Data Protection Act 2018.

10.4 For this clause, the terms 'Controller', 'Processor', 'Data Subject', 'Personal Data', 'Process', and 'Processing' shall have the meaning prescribed under the Data Protection Act 2018 and the UK GDPR.

10.5 The council and the provider also acknowledge their respective obligations arising under the Data Protection Legislation and must assist each other as necessary to enable each other to comply with these obligations.

10.6 The provider undertakes to:

treat as confidential all personal data which may be derived from or be obtained during the performance of this agreement, or which may come into the possession of the provider or a staff member, servant, agent, or sub-contractor of the provider as a result or in connection with the performance of this agreement,
provide all necessary precautions to ensure that all such information is treated as confidential by the provider, its staff members, servants, agents, or sub-contractors,
ensure that it, its staff members, servants, agents, and sub-contractors are aware of the provisions of the Data Protection Legislation and that any personal information obtained during the performance of this agreement shall not be disclosed or used in any unlawful manner,
indemnify the council against any loss arising under the Data Protection Legislation caused by any action, authorised or unauthorised, taken by the service provider, its staff members, servants, agents, or sub-contractors, and
have in place adequate mechanisms to ensure that sub-contractors, agents, and subsidiaries to whom personal information is disclosed comply with their obligations under this agreement to keep personal data and information secure and confidential following Data Protection Legislation,
provide the council with such information as the council may reasonably require satisfying itself that the Provider is complying with its obligations under the Data Protection Legislation, and
promptly notify the council of any breach of the security measures required to be put in place according to clause 10.6.5,
The provisions of this clause shall apply during the continuance of the agreement and indefinitely after its expiry or termination.

11. Prevention of Bribery

11.1 The provider represents and warrants that neither it nor to the best of its knowledge any of the provider’s staff, have at any time before the Effective Date:

committed a Prohibited Act or been formally notified that it is subject to an investigation or prosecution which relates to an alleged Prohibited Act, and/or
been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or contracts on the grounds of a Prohibited Act.

11.2 The provider shall not during the term of this agreement:

commit a Prohibited Act, and/or
do or suffer anything to be done which would cause the council or any of the council’s employees, consultants, contractors, sub-contractors, or agents to contravene any of the Bribery Act or otherwise incur any liability concerning the Bribery Act.

11.3 The provider shall if requested, provide the council with any reasonable assistance, at the council’s reasonable cost, to enable the council to perform any activity required by any relevant government or agency in any relevant jurisdiction for compliance with the Bribery Act.

11.4 The provider shall during the term of this agreement:

establish, maintain, and enforce, and require that its sub-contractors establish, maintain, and enforce, policies and procedures which are adequate to ensure compliance with the Bribery Act and prevent the occurrence of a Prohibited Act, and
keep appropriate records of its compliance with its obligations under this section headed 'Prevention of Bribery' (section) and make such records available to the council on request.

11.5 The provider shall immediately notify the council in writing if it suspects or becomes aware of any breach of this section or has reason to believe that it or any of the provider’s staff have:

been subject to an investigation or prosecution which relates to an alleged Prohibited Act,
been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or contracts on the grounds of a Prohibited Act, and/or
received a request or demand for any undue financial or other advantages of any kind in connection with the performance of this agreement or otherwise suspects that any person or party directly or indirectly connected with this agreement had committed or attempted to commit a Prohibited Act.

11.6 If the provider makes a notification to the council according to this clause, the provider must respond promptly to the council’s enquiries, cooperate with any investigation, and allow the council to audit books, records, and any other relevant documentation following the terms of this agreement. This obligation shall survive the termination of this agreement.

11.7 If the provider is in breach of this clause, the council may by notice in writing:

require the provider to remove from the performance of this agreement any provider’s Staff whose acts or omissions have caused the breach, or
terminate this agreement by written notice with immediate effect

11.8 Any notice served under this section must specify:

the nature of the Prohibited Act,
the identity of the party whom the council believes has committed the Prohibited Act,
the date on which this agreement will terminate, and
the action that the council has elected to take.

11.9 Any termination under this section will be without prejudice to any right or remedy which has already accrued or subsequently accrues to the council.

12. Variation

12.1 The council may at its sole discretion vary this agreement without securing the consent of the provider where a variation is required to reflect any changes to legislation or government guidance. The parties agree that such variation

shall be made by the council serving written notice of the details of such variation upon the provider and the variation to the agreement shall be deemed to take effect upon the date such notice is served.

13. Waiver

13.1 No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms will be deemed to be a waiver of any other right or any later breach. But without limitation to the generality of the foregoing, any prior acceptance or approval communicated by the council to the provider in respect of the agreement or any omission on the part of the council to communicate such prior acceptance or approval shall not relieve the provider of its obligations under this agreement.

14. Governing Law and Jurisdiction

14.1 This agreement and any appeal or claim arising out of or in connection with it or its subject matter shall be governed by and construed following the law of England and Wales.

14.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any appeal or claim that arises out of or in connection with this agreement or its subject matter.

Appendix 1