Decision : Closed after initial enquiries
Decision date : 30 Nov 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Miss X’s complaint that the Council would not fund her early years childcare business. It is unlikely we would find fault.
- The complainant, whom I shall call Miss X, says the Council has unfairly refused to fund her early years childcare business.
The Ombudsman’s role and powers
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID -19”.
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
- I considered the information Miss X provided with her complaint, the Council’s replies to her which it provided and the relevant Government guidance. I considered Miss X’s comments on a draft version of this decision.
What I found
- Miss X owns an early years childcare business. The Council provided her with childcare funding for children aged over two.
- In July and November 2019, Ofsted inspected the business and rated it as ‘inadequate’.
- In providing funding the Council must have regard to the Government guidance. It cannot depart from the guidance without good reason. The guidance says it should not provide funding to providers who Ofsted rate as ‘inadequate’. The Council therefore withdrew its funding.
- Miss X complained to Ofsted about its inspections. It considered her complaint in early 2020, but did not uphold it. The Council say the Ofsted complaint process usually delays any follow up inspections.
- On 17 March 2020, the Government announced the suspension of routine Ofsted inspections. This means Miss X’s business has not been reinspected and may not until after January 2021.
- Miss X appealed to the Council for it to use its discretion to award funding because the Ofsted reinspection is delayed due to COVID-19. She says she believes she will be graded as ‘good’ on reinspection. She has provided a letter from Ofsted saying a routine December inspection indicated she may have met the required changes.
- The Council considered Miss X’s appeal in line with its Dispute Resolution and Appeals Process, set out in its agreement with providers. It decided it could not use its discretion. It said:
- She had had two consecutive inadequate inspections;
- There were other providers in her area with space and
- It had a duty to safeguard children.
- We do not criticise a Council decision because it is one the complainant disagrees with. The Council has a duty to make finely balanced decisions. We can only criticise those decisions if they are made with fault, such as being flawed, not substantiated by the evidence or have not followed the procedure.
- It is unlikely our investigation would find fault because:
- The Council considered Miss X’s appeal in line with its procedure;
- It’s decision is in accordance with Government guidance; and
- The Government provided amendments to the early years funding guidance for the COVID-19 period. Those amendments make no changes to the requirement that councils should not pay funding to providers who are rated an ‘inadequate’.
- The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault.
Investigator's decision on behalf of the Ombudsman