Summary: Mr X complained the Council failed to meet its duty under the Childcare Act 2006 to ensure sufficient childcare was available for working parents. We have found no fault by the Council.

The complaint

1. The complainant, Mr X, complains the Council has failed to meet its duty under section 6 of the Childcare Act 2006 to ensure sufficient childcare is available for all parents who choose to work. In particular, Mr X says there is insufficient childcare suitable for disabled children.
2. Mr X also complained about a Council officer expressing discriminatory views at a meeting in November 2022 and about a more recent carers assessment.
3. Mr X says because of the Council’s fault, he has had to leave his full-time employment to care for his disabled daughter.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

7. I have investigated Mr X’s complaint about insufficient childcare.

8. I have not investigated Mr X’s complaint that a Council officer expressed discriminatory views at a November 2022 meeting. This is because Mr X could have complained about this earlier. This is a late complaint as set out at paragraph 6 above and there is not enough reason to accept this now.
9. I have also not investigated Mr X’s complaint about a carers assessment as he had not provided the Council with a reasonable opportunity to investigate this issue under its own complaint procedure.

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How I considered this complaint

10. I read the papers provided by Mr X and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr X and the Council and provided an opportunity for comment.

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What I found

Background and legislation

11. Section 6 of the Childcare Act 2006 requires local authorities to make sure there is enough childcare in their area for parents who wish to work or study in relation to work. The duty applies as far as it is ‘reasonably practicable’. In deciding if the provision is enough a local authority must have regard to the needs of parents in their area for the provision of childcare which is suitable for disabled children.

Key events

12. The following is a summary of key events. It does not include everything that happened.
13. Mr X’s daughter has special educational needs and attends a specialist school. She had previously attended after school provision, but this was ended as it was no longer financially viable due to the staffing costs associated with higher ratios of adults to children to meet their complex needs. Mr X also said the provision had been ad hoc and not suitable for his daughter.
14. The Council has provided details of its contact with Mr X and his family to find suitable alternative provision between January to March 2023. The Council’s records set out the requirement was for term time after school provision Monday to Friday from 3.30pm to 5.30pm and during school holidays Monday to Friday from 9am to 5pm. It was noted that the same provider was not necessary for both term time and the school holidays. The Council’s records show contact with providers and that although there was some space there was not the additional staff to provide 1:1 support or they could not offer Monday to Friday inclusive. The Council also contacted neighbouring local authorities about the possibility of out of area provision. The Council provided information to the family about the available options in mid-March. It was noted the option found was not ideal. The Council says the relevant service did not receive further contact from the family.
15. Mr X complained to the Council in January 2024 about its failure to secure sufficient childcare for families with disabled children. Mr X said there was only one suitable provider and this was oversubscribed.
16. The Council provided a response to Mr X’s complaint in February and outlined the steps it had taken to discharge its duty under the relevant legislation. The Council provided details of its work with providers to arrange provision for Mr X’s daughter from February 2022 onwards and the difficulties posed by the lack of availability of suitably qualified staff. The Council also provided details about its successful bid for funds from the Department for Education to support the commissioning of specialist after school provision for children with complex needs.
17. In response to my enquiries, the Council has explained that it carries out an annual assessment of early years and childcare sufficiency and this showed there was generally sufficient inclusive after school provision in its area but there was a gap for children with complex needs. The Council has acknowledged this makes it challenging for parents like Mr X to take up or remain in work.
18. The Council has confirmed there are 54 out of school clubs (OOSCs) across its area and all the providers work to be inclusive. The Council has highlighted that although there are SEND children accessing this provision, there is pressure on the number of places that can be offered due to the complexity of need and staff recruitment and retention issues. The Council says the situation for Mr X’s daughter has been more challenging due to the complexity of her needs but that it remains committed to finding a solution for Mr X and his family.
19. The Council has confirmed it works with all childcare providers in its area to ensure they are supported to make reasonable adjustments. All OOSCs are registered with Ofsted in which the statutory Early Years Foundation Stage framework outlines the requirement to adhere to the Equality Act and make reasonable adjustments to include disabled children in their provision. The Council has highlighted there are some barriers for providers due to the lack of suitably qualified and experienced staff. The Council says this mirrors the national picture in terms of recruitment issues.
20. The Council has worked with two named charities to support holiday provision but says Mr X’s family’s situation means that no one existing provider could provide the full-time provision the family needs. The Council has acknowledged that despite its efforts there is no suitable provision for five days a week for Mr X’s daughter with one provider. An out of area provider was identified in March 2023 as set out above.
21. The Council recognises that a longer term solution is necessary for children with complex needs and its intention remains to increase specialist after school provision if this can be made financially viable.
22. As explained above, the duty under the Childcare Act 2006 applies as far as it is ‘reasonably practicable’. Based on the information provided, I have seen no evidence of fault by the Council in its approach and consider it has provided enough relevant information about its actions to suggest it has discharged this duty. However, this would ultimately be a matter for the courts to decide.

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Final decision

23. I have completed my investigation as I have found no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman