Data sharing to support early learning and childcare in Scotland

Question 1

1. Data sharing to support early learning and childcare in Scotland Consultation on draft Digital Government (Disclosure of Information) Regulations 2022

Accepted Answer

The organisations affected by this consultation are public authorities in England and Scotland, and/or other government departments, arms length bodies, non departmental public bodies or other organisations who may consider they could be affected by the draft regulations. It may also be relevant to other bodies that have an interest in funded early learning and childcare provision in Scotland. The specified organisations are not meant to be exhaustive or exclusive. Responses are welcome from anyone with an interest in or views on the subject covered by this paper.

Duration: From 10 January 2022 to 7 March 2022

1.1 How to respond

The consultation period will run until 7 March 2022. Please ensure that your response reaches us before the closing date.

You can respond to this consultation online.

Alternatively, you can use our list of suggested questions (found in section 22 of this document, or in the separate questions document), to use when responding to this consultation to our email at dea-data-sharing@digital.cabinet-office.gov.uk.

Unfortunately, we cannot accept postal responses to this consultation unless there are exceptional circumstances. Enquiries (including requests for the paper in an alternative format) to:

Heather Neate, Head of Data Sharing Legislation at dea-data-sharing@digital.cabinet-office.gov.uk

Additional activity will be organised by the Scottish Government for bodies and individuals with an interest in how the powers will be used by Scottish bodies. More information on this activity will be provided through the monthly updates from the Directorate for Early Learning and Childcare:

https://www.gov.scot/publications/early-learning-and-childcare-elc-expansion-monthly-updates/

Please indicate in your response whether you are content for your comments to be published, with or without attributing it to you or your organisation.

Please include the following ‘Response to the consultation on the data sharing for early learning and childcare in Scotland’ in the subject line if you choose to respond this way.

A response to this consultation exercise is due to be published by 30 May 2022 on gov.uk.

Question 2

2. Ministerial Foreword by Lord Agnew

Accepted Answer

Lord Agnew of Oulton Minister of State for Efficiency and Transformation

This Government has made a commitment to improve the way that data and information is shared and used across the public sector to deliver better, joined up services and better outcomes for our citizens. The Digital Economy Act was designed and passed in 2017 to give us flexibility to introduce new data sharing gateways to support the delivery of key services, as the need arises, by secondary legislation and with a pre-consultation stage.

This proposed legislation would mean Scottish local authorities are able to target the entitlement to funded early learning and childcare for certain 2 year olds more effectively, ensuring that disadvantaged children and families are made aware and are able to access their full entitlement. It would also give parity of service provision that families in England and Wales already enjoy. This would be introduced under draft Digital Government (Disclosure of Information) Regulations 2022.

Across the country, levelling up is spreading opportunity, boosting living standards and improving public services. This proposed data sharing is an example of the tangible benefits that can be realised when UK government departments work closely together. Efficient data sharing across the public sector should be the norm, rather than the exception.

I welcome responses from anyone with an interest or views on early learning and childcare to respond to this consultation.

Lord Agnew of Oulton Minister of State for Efficiency and Transformation

Question 3

3. Ministerial Foreword by Clare Haughey, MSP

Accepted Answer

Clare Haughy, MSP, Minister for Children and Young People

The Scottish Government’s National Performance Framework aims to get everyone in Scotland working together to achieve the National Outcomes. The National Outcome for Scotland’s children and young people is that ‘’we grow up loved, safe and respected so that we realise our full potential”. Similarly, there is a vision for our communities that “we live in communities that are inclusive, empowered, resilient and safe”.

We know that high quality early learning and childcare (ELC) enriches children with skills and confidence to carry throughout their lives, and is a cornerstone for closing the poverty-related attainment gap between the most and least advantaged children. Evidence from both UK and international evaluations and studies of ELC programmes shows that all children, especially those from disadvantaged backgrounds, can benefit in terms of social, emotional and educational outcomes from attending high quality ELC.

To support this vision, in 2014 the Scottish Government committed to almost doubling the funded entitlement to early learning and childcare from 600 to 1,140 hours for all 3- and 4-year-olds and eligible 2-year-olds.

Our transformative ELC expansion programme was realised in August 2021, with all children and families across Scotland now being able to access up to 1,140 hours funded ELC – underpinned by ensuring that provision is of high quality, flexible, accessible and affordable.

Underpinning all of this is the joint commitment between Scottish Government and Scottish local authorities to maximise uptake of funded ELC in order to ensure we realise the benefits of the investment: Children’s development improves and the attainment gap narrows; Parents’ opportunities to be in work, training or study increase; and Family wellbeing improves through the enhanced nurture and support available through the funded hours.

We know however that we can do more, especially for those children who stand to benefit the most from early access to funded ELC.

Our entitlement for eligible 2-year-olds is a targeted offer with eligibility criteria including children with experience of care or with a parent with experience of care; or children whose family are in receipt of low- or no-income benefits (out of work benefits or income-related benefits with income below a certain threshold).

While our qualifying criteria intend to target those 2-year-olds who stand to benefit the most from early access to high quality funded ELC, uptake of this targeted offer has consistently remained low and we must do all we can to remove barriers for families.

There are several factors that contribute to low uptake including those identified in research we commissioned in 2017. ‘Drivers and barriers to uptake of early learning and childcare among 2-year-olds’ published March 2017, indicated that many eligible families are likely to take up the 2-year-old offer if they are aware of it, although we know that not all families will take up their entitlement even when they are aware. The research identified that one of the key barriers to raising awareness amongst eligible families is that the Scottish Government and Scottish Local Authorities do not have access to household level information about those families who are likely to be eligible. That report included a recommendation that “as a priority, the Scottish Government should work with DWP (and HMRC if required) to allow data on eligibility to be shared with local authorities”.

The draft Regulations that are the subject of this consultation will benefit local authorities in Scotland – allowing them to effectively and efficiently target local information to eligible families.

I would like to take this opportunity to encourage you to respond to this consultation.

Clare Haughey, MSP Minister for Children and Young People

Question 4

4. Executive summary

Accepted Answer

This consultation sets out the Cabinet Office’s proposal to enable data sharing between HMRC, DWP, the Scottish Government and Scottish local authorities in order to help identify and contact households that are eligible for funded early learning and childcare (ELC) for 2 year olds in Scotland.

Question 5

5. Introduction

Accepted Answer

The Public Service Delivery (‘PSD’) power (Chapter 1 of Part 5 of the Digital Economy Act 2017) allows specified bodies to share personal information for objectives which are set out in regulations. This information sharing power is aimed at improving or targeting public services to individuals or households in order to improve their well-being. It also includes safeguards to make sure that the privacy of citizens’ data is protected.

New objectives can be created providing they meet the criteria in Section 35 of the Digital Economy Act 2017 and secure parliamentary approval. The criteria are as follows:

condition 1: the purpose is the improvement or targeting of a public service provided to individuals or households, or the facilitation of the provision of a benefit (whether or not financial) to individuals or households
condition 2: the purpose is the improvement of the well-being of individuals or households
condition 3: the purpose is the supporting of the delivery of a specified person’s functions, or the administration, monitoring or enforcement of a specified person’s functions

In order to exercise the PSD power, the government must, via regulations, set specific objectives for which data may be shared and identify the specific bodies to which they apply. The Code of Practice for the PSD power provides the principles and guidance on using the power and on ensuring compliance with data protection legislation.

This consultation paper sets out a proposed objective to support funded early learning and childcare (‘ELC’) in Scotland and the draft Digital Government (Disclosure of Information) Regulations 2022 which would enact it. The consultation is aimed at UK and Scottish public authorities and other government departments, arms length bodies, non departmental public bodies or other organisations who may consider they could be affected by the draft regulations. It may also be relevant to other bodies that have an interest in funded ELC provision in Scotland.

The Scottish Government published an Equality Impact Assessment in January 2021 on the policy framework for ELC in Scotland. It did not identify any direct or indirect unlawful discrimination. Furthermore, as the proposed statutory instrument has no direct impacts on UK businesses, the Regulatory Policy Committee sees no reason for a further impact assessment to be carried out.

Copies of the consultation paper are being sent to the bodies listed at Annex 4. However, this list is not meant to be exhaustive or exclusive and responses are welcomed from anyone with an interest in or views on the subject covered by this paper.

Question 6

6. The proposal

Accepted Answer

The UK Government, in partnership with the Scottish Government, is proposing to create a new PSD objective under Chapter 1 of Part 5 of the Digital Economy Act 2017. The proposed objective would provide for data sharing between HMRC, DWP, the Scottish Government and Scottish local authorities in order to help identify and contact households that are eligible for funded early learning and childcare (ELC) for 2 year olds in Scotland.

High quality ELC can make a huge difference to children’s lives, particularly when they are growing up in more disadvantaged circumstances. Data sharing between HMRC, DWP, the Scottish Government and Scottish local authorities would help identify households that are eligible for funded ELC because they receive certain qualifying benefits, and thereby improve uptake. We have set out some background to the ELC scheme in Annex 2.

As required by the Code of Practice, the proposed new objective has been approved by the Public Service Delivery Review Board.

Question 7

7. What is the new data sharing objective?

Accepted Answer

The Digital Government (Disclosure of Information) Regulations 2018 will be amended and a new PSD objective added to allow sharing personal information in order to help identify and contact eligible households, and thereby support the improvement of uptake of funded ELC for eligible 2 year olds in Scotland. It would enable regular data sharing from HMRC and DWP with the Scottish Government and onward to Scottish local authorities. The data sharing would provide the relevant local authority with access to the necessary information to enable them to identify and then directly contact eligible families to inform them of their likely eligibility.

Question 8

8. Who will use the data sharing power?

Accepted Answer

The public authorities who would be able to exercise the power for the purposes of the new ELC objective will be the Scottish Government (defined as the Scottish Ministers), Scottish local authorities as defined under section 2 of the Local Government etc. (Scotland) Act 1994, Her Majesty’s Revenue and Customs (HMRC) and the Secretary of State for Work and Pensions (DWP).

Question 1 - To what extent do you agree that the proposed new objective meets the first condition set out in s35 (9) of the Digital Economy Act 2017?

Question 2 - To what extent do you agree that the proposed new objective meets the second condition set out in s35 (10) of the Digital Economy Act 2017?

Question 3 - To what extent do you agree that the proposed new objective meets the third condition set out in s35 (12) of the Digital Economy Act 2017?

Question 9

9. Who may process data and why?

Accepted Answer

The data required by Scottish local authorities for ELC purposes sits with DWP and HMRC.

As HMRC and DWP do not have access to both datasets, it is envisaged that the Scottish Government would merge the HMRC and DWP data together, de-duplicate, and then split the data by relevant Scottish local authority. It is envisaged that HMRC and DWP will share data with the Scottish Government on a regular basis to meet business requirements.

Once local authorities receive the information, they will directly contact those eligible families and provide them with information on the local offer and on how to take it up.

Question 10

10. What data will be shared?

Accepted Answer

HMRC and DWP will share the minimum number of data items necessary for contacting eligible families. This will specifically include the customer name, address and National Insurance number (for unique identification), as well as a child(ren) indicator to confirm the existence of a child, or children, when writing to the family.

Prior to sharing any data, all parties to the data share will complete an agreed business case, information sharing agreement, data protection impact assessment and security plan in line with the Code of Practice. Data sharing will take place in accordance with data protection legislation, the Commissioners for Revenue and Customs Act 2005, and the Information Commissioner’s Office Data Sharing Code of Practice.

All parties to the data share will ensure that data is held securely, to the appropriate security and information management standards, maintained to the appropriate quality, used only for the specified purpose of ELC, kept only as long as necessary and then securely deleted.

Any and all data shares under the proposed objective will be included in the Register of information sharing agreements established under chapters 1, 2, 3 and 4 of part 5 of the Digital Economy Act 2017.

Question 4 - To what extent do you agree that the data to be shared as outlined under this proposed objective is consistent with the delivery of the objective?

Question 11

11. What is the likely impact of the new data sharing power?

Accepted Answer

This proposed objective will ensure Scottish local authorities are able to target the entitlement to funded ELC for certain 2 year olds more effectively, ensuring that those children and families facing the most socio-economic disadvantage are made aware and are able to access their full entitlement. This will provide greater opportunity for Scotland to realise the full benefits of the significant investment in funded early ELC.

The expansion of funded ELC will deliver three main benefits for children and families:

children’s development improves and the attainment gap narrows
parents opportunities to be in work, training or study increase
family well-being improves through enhanced nurture and support

11.1 Case Study: Early Learning and Childcare (ELC)

The council has access to a list of parents with a 2 year old, who receive one of the benefits that qualifies their child for funded hours of ELC for 2 year olds. The council doesn’t know what benefit the parent receives or what the child’s name is, just that the child is eligible at that time. The council sends letters to all the households on the list when they access it.

The council can access the list 3 times a year. The list is only available for a set period of time and can only be used to let the family know about funded ELC for 2 year olds. Only certain people can access the lists and there are rules in place to make sure the council knows how they can use the information.

Jemma, mum to Lucy, is on the list because she currently gets Universal Credit and works a few hours a week. Jemma receives the letter from the council telling her that they think she has a child that could get funded hours of ‘early learning and childcare’, earlier than the ‘universal’ offer at age 3 (which all children in Scotland get). The letter explains that in her area, Jemma just needs to choose where she would like Lucy to get the hours and she can speak directly to the provider about it. If she’s not sure, she can call the council.

Jemma can choose from: a school nursery nearby that is only open when the school is open; a private nursery that is open year round; a childminder who looks after a couple of other children of different ages; or there’s also a local charity that runs sessions in the local church hall. Part of that decision depends on how she would like to take the hours – either sending Lucy for the same as a school day and only during school term time, or for shorter days year round. Whichever provider she chooses, they all need to meet a ‘National Standard’ so Jemma can be sure Lucy will get high quality learning and care wherever she goes.

Jemma feels a bit confused about what to do. She speaks to her Health Visitor about it and her friends and her mum. Jemma’s mum isn’t sure about sending Lucy when she’s so young. Jemma decides to speak to the council and has a really helpful chat with the admissions person there. She reassures Jemma that Lucy doesn’t need to go for full days or use all the hours. Jemma decides to send Lucy to the private nursery because it means Lucy can go year round and Jemma can hopefully do a bit more work and have a bit of time to catch up on other things. The council helps her with the paperwork. Because of the information the council has already from the letter they sent Jemma, they don’t need to check much.

Lucy goes to nursery 4 days a week from 8am to 2pm and she really enjoys it:

“The person at the council helped me decide on the right place and the right hours for Lucy. The nursery themselves really helped Lucy (and me!) to settle in and they never rushed for her to leave me. Her teachers spent time working out the best ways to comfort Lucy and found what routine was best. Knowing the time they spent and the attention they gave her put me at ease. Watching her independence and confidence grow has been so satisfying.

For Lucy, starting nursery at 2 years helped prepare her better rather than being sent at 3 years straight from home.

Jemma increases her hours at work and this doesn’t affect Lucy’s place at nursery at all. Jemma has more time to get other things done too and feels a bit more like herself:

“As well as watching Lucy grow, the nursery place has also helped me grow. Getting back to work and not being ‘mum’ for a couple of hours a day really helps me to be the best mum I can be, stopping me from losing myself or finding myself locked away from real life.”

Question 5 - To what extent do you consider that the proposed new objective supports the delivery of the described benefits to the specified individuals and/or households?

Question 6 - To what extent do you consider the delivery of the proposed new objective will lead to any individual and/or household incurring a loss of benefit/s?

Question 7 - To what extent do you consider the delivery of the proposed new objective will lead to any individual and/or household incurring a loss of access to services?

Question 12

12. Why introduce the power now?

Accepted Answer

Although most 2 year olds are eligible because their parents receive UK welfare benefits, uptake of the 2 year old entitlement is low in Scotland. The Scottish Government and local authorities in Scotland have recently increased the number of funded hours of ELC from 600 to up to 1,140 hours per year for all eligible children, including eligible 2 year olds. The Scottish Government anticipates changes to the eligible population as a result of the economic and social impact of COVID-19.

English local authorities have existing legal gateways that they can use to access the information needed to identify and target eligible families for ELC.

In Wales, ELC support for 2 year olds is geographically targeted, and focused on areas of disadvantage. All families in those areas can access provision regardless of entitlement to welfare benefits, and local authorities have access to the data needed to target and raise awareness within those areas. However, these existing legal gateways do not extend to Scotland.

The Scottish Government, therefore, is seeking to enable similar data sharing arrangements to increase take up in Scotland. The proposed objective supports Scottish Government policy on ELC.

Question 13

13. What other options have been considered?

Accepted Answer

The Scottish Government, HMRC and DWP agree that no other legal gateway exists to allow the sharing of data in this way and so these draft regulations are necessary.

Question 14

14. How does the data sharing align with UK government priorities?

Accepted Answer

While the effect of the draft regulations extends only to Scotland, the UK Government has a clear duty to support citizens in areas where they are responsible, such as reserved benefits, and to ensure that the most vulnerable in society get the help that they need. The objective is designed to enable information sharing to improve the provision of ELC in Scotland. The draft regulations outline the proposed objective and the specific public authorities which would be able to make use of it.

The proposal aligns with arrangements for data sharing in England for free early education and childcare provision for 2 year olds. The proposal aligns with the Public Sector Equality Duty to advance equality of opportunity for all eligible families with 2 year olds in Scotland, as it does in England.

Furthermore, this proposal:

supports the UK Government’s levelling up agenda by ensuring data from across the public sector can be put to the best possible use in support of employment and childcare opportunities
demonstrates effective and constructive collaborative working between UK and Scottish Governments. It enables data held in the UK to be put to beneficial use for the delivery of wider objectives by the Scottish Government

Question 15

15. Why is the UK Government taking this proposal forward?

Accepted Answer

The Scottish Parliament can only approve proposals for new objectives which solely involve specified Scottish bodies permitted to make use of the public service delivery power. Information sharing under this proposed objective would involve disclosure and processing of data held by UK departments: HMRC and DWP. The draft regulations must therefore be taken through the UK Parliament by the UK Government.

Question 16

16. Does the data sharing power apply across England, Scotland, Wales and Northern Ireland?

Accepted Answer

No - English and Welsh local authorities have existing legal gateways that they can use to access the information needed to identify and target eligible families for ELC and brings Scotland in line with England and Wales. ^{[footnote 1]} ^{[footnote 2]}

The PSD powers are not yet commenced in Northern Ireland.

Question 17

17. Will data sharing comply with the relevant data protection requirements?

Accepted Answer

Yes, the data sharing will comply with the relevant data protection requirements. The purpose of the underpinning Code of Practice is to provide a set of principles and guidance for the use and disclosure of information under Digital Economy Act 2017 powers. The Code also refers to other requirements when sharing information, including data protection legislation. This requires that data must be processed lawfully, fairly, in a transparent manner and only for specified and legitimate purposes.

The legal basis for processing (i.e. sharing) personal data in the proposed objective is that it will be necessary for the performance of a task in the exercise of official authority. This authority derives from section 35 of the Digital Economy Act 2017 where the data is being shared for the purposes of improving and targeting a public service and providing a benefit to individuals and households in Scotland.

Question 18

18. Will you prepare a data protection impact assessment?

Accepted Answer

The Code of Practice sets out that public authorities involved in the data share must carry out a data protection impact assessment before sharing data. The data protection impact assessment will assess the potential benefits of the information sharing agreement against the risk or potential negative effects, such as an erosion of personal privacy.

Question 19

19. Does the proposed data sharing comply with current best practices?

Accepted Answer

Yes, the proposed data sharing complies with the spirit of current government practice, including the Data Ethics Framework, the Government Data Quality Framework, initiatives for data standardisation work being taken forward by the Data Standards Authority and the Scottish Government Digital Strategy. All parties to the data share will intermittently review the arrangements to ensure that compliance is consistent throughout implementation.

Question 20

20. Why consult?

Accepted Answer

The Digital Economy Act 2017, supported by the underpinning Code of Practice requires consultation of certain named individuals, such as the Information Commissioner and the HMRC Commissioners It also sets out that, before making regulations, the appropriate national authority, in this case the Cabinet Office, must also consult such other persons as it thinks appropriate. Collaborative and constructive work with DWP and HMRC has taken place to date at official level to take this public consultation forward.

In any event, we are undertaking a public consultation on this proposed amendment to the regulations so we can be confident that all persons who might reasonably be considered appropriate to be consulted, have been consulted. This will ensure as wide a range of views as possible is considered and factored into the regulations before they are presented to Parliament for approval.

Question 8 - Do you think the objective proposal raises any equality questions?

Question 9 - Do you have further comments on the suitability of this proposed objective?

Question 21

21. Impact Assessment

Accepted Answer

Further to the equality assessment published in January 2021, the Scottish Government also updated the impact assessment for 2 year old eligibility to determine if those citizens within protected characteristics groupings faced any barriers, discrimination or harassment as a result of the expansion policy.

The impact assessments did not identify any policy elements that discriminate against any of the protected characteristics either directly or indirectly, but did find some positive impacts on the basis of sex, disability, race and religion or belief as these groups appear more likely to meet the relevant eligibility criteria.

The proposed statutory instrument has no direct impacts on UK businesses. The Regulatory Policy Committee sees no reason for a further impact assessment to be carried out. This will be reflected in the Explanatory Memorandum to the statutory instrument.

Overall, establishing the new objective under the public sector delivery power will help deliver valuable economic and social impacts for citizens in Scotland.

Question 22

22. Questionnaire

Accepted Answer

We would welcome responses to the following questions.

1 To what extent do you agree that the proposed new objective meets the first condition set out in s35 (9) of the Digital Economy Act 2017?

The first condition set out in s35 (9) has as its purpose:

The improvement or targeting of a public service provided to individuals or households, or
The facilitation of the provision of a benefit (whether or not financial) to individuals or households

Please choose one of the following options:

Strongly agree
Agree
Neither agree nor disagree
Disagree
Strongly Disagree