Summary: Mrs X complains that the Council failed to consider her application for free school meals properly. She says it unreasonably refused to accept evidence she provided. The Ombudsman does not find fault with the Council because it followed advice it received about what evidence is acceptable and gave Mrs X an opportunity to provide further evidence.

The complaint

1. Mrs X complains that the Council has failed to consider her application for free school meals properly. She says it has unreasonably refused to accept her evidence that she receives a qualifying benefit. As a result she says she has suffered financial hardship, and her daughter has missed out on free school meals she is entitled to.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. If we are satisfied with a council’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)

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How I considered this complaint

4. I considered the information the complainant provided and the Council’s response to my enquiries. I considered relevant guidance on free school meals. I discussed the issues with a Team Leader in the Council’s Admissions, Applications and Awards team who deals with free school meals. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Eligibility for free school meals

5. Pupils are eligible for free school meals if they or their parents receive certain qualifying benefits, including:
• Child Tax Credit (provided they are not also entitled to Working Tax Credit and they have an annual gross income of no more than £16,190)
• Working Tax Credit ‘run-on’ - paid for 4 weeks after they stop qualifying for Working Tax Credit
• Universal Credit - if they either started the claim before 1 April 2018 or the household income is less than £7,400 a year (after tax and not including any benefits).
6. The Department for Education has issued non-statutory guidance ‘Free school meals. Guidance for local authorities, maintained schools, academies and free schools. April 2018’ (‘the Guidance’). This explains that new rules were brought in on 1 April 2018 because of the introduction of Universal Credit. To ensure families moving onto Universal Credit do not lose entitlement to free school meals, the following pupils will continue to receive them while Universal Credit is rolled out, even if they no longer meet the eligibility criteria:
• those receiving free school meals immediately before 1 April 2018
• those who become eligible for free school meals after 1 April 2018.
7. Once Universal Credit is fully rolled out, any existing pupil who no longer meets the eligibility criteria at that point will continue to receive free school meals until the end of their current phase of education.

Eligibility checking system

8. There is a national Eligibility Checking System (ECS) councils may use to check whether an applicant is eligible for free school meals. The Guidance explains the following.
9. If a parent feels the ECS result is inaccurate, they may provide equivalent paper-based evidence to their local authority who must then complete a manual check. If the local authority is satisfied the evidence shows the parent meets the criteria, it can award free school meals.
10. For people receiving benefits other than Universal Credit, the check should assess whether the claimant is currently in receipt of the stated benefit and, in the case of Child Tax Credit, their annual gross income is no more than £16,190.
11. To claim free school meals based on receipt of Child Tax Credit, the applicant should provide:
• a letter from Jobcentre Plus confirming eligibility or Income Support payment book; or
• a Tax Credit Award Notice (TC602) from HM Revenue & Customs (HMRC).

What happened

12. Mr and Mrs X both work part-time on low earnings and have a child, Y. In 2019 they were receiving Child Tax Credit and Working Tax Credit. In late June 2019 their Working Tax Credit stopped because of an overpayment. They received a letter (TC602D) from HMRC dated 27 June 2019 informing them of a change in their tax credits. The letter was headed ‘Provisional tax credits for 06/04/2019 to 05/04/2020’ and noted in the summary:

“This is not a decision about your entitlement to tax credits. The amounts shown on this form are provisional.”

13. At the beginning of July 2019 Mrs X applied to the Council for free school meals. She considered she was entitled as the family was now receiving Child Tax Credits without Working Tax Credits and their income was below the threshold.
14. The Council checked the application on the Eligibility Checking Service. It says this produced an inconclusive result.
15. The Council wrote to Mrs X on 1 August 2019 acknowledging the application and setting out the eligibility criteria. It said its checks had not provided enough evidence to allow it to process the claim. It invited her to provide proof of the benefits she was receiving.
16. Mrs X did not receive this letter. She wrote to the Council in mid-September 2019 saying she presumed the Council had either lost or rejected her application. She provided further information to support her claim and asked for a review of the decision if it had been rejected. She said:
• she believed she was entitled to free school meals as she was receiving Child Tax Credits and not Working Tax Credits when she applied and had an annual income of less than £16,190;
• she was enclosing the ‘Tax Credit award notice’ dated 27 June 2019 which she said showed the Working Tax Credits stopped in June 2019 and future payments would be for Child Tax Credits only;
• so she believed she was eligible at the time she applied;
• she began receiving Working Tax Credits a few weeks later, but believed she remained entitled to free school meals based on the Government announcement that anyone eligible on 1 April 2018 or after continues to be eligible until at least March 2023, regardless of changes of circumstances.
17. The Council replied confirming it was rejecting the application. It said:
• This was because she had provided a ‘provisional tax credits award’ which was not sufficient for an award to be made. This was based on guidance it had received previously from the Department for Education (DfE).
• It had also used the national checking system which did not confirm she was eligible.
• After assessing the application it had posted her a letter explaining what she needed to do to progress the application. It enclosed a copy of the letter of 1 August 2019.
• If she could confirm that at some point since 1 April 2018 she had been in receipt of a qualifying benefit it would review the case.
• If she was not satisfied with the response she could contact the Ombudsman.
18. Mrs X contacted the DfE for advice about the reasons the Council had given for refusing her application. The DfE replied in writing:

“You have stated that your application was rejected because your provisional tax credit award was insufficient and you were not entitled to a free school meal award. This is not a rule that we are aware of”.

19. Mrs X did not reply to the Council. She made a complaint to the Ombudsman. Her view was that the Council’s decision was wrong. She believed she qualified for free school meals because at the time she applied the family was receiving Child Tax Credits but not Working Tax Credits as the Working Tax Credits payments had stopped. She said there was no dispute the Working Tax Credit payments had stopped and there was no mention in the legislation or guidance of ‘provisional awards’ as a reason to reject an application.

Council’s response to enquiries

20. In response to the Ombudsman’s enquiries the Council provided a copy of an email exchange with the ‘ECS Administration’ section of the DfE in November 2017. The Council had asked whether provisional tax credit awards were acceptable as evidence and the reply was that they were not.
21. When I spoke to the Team Leader dealing with free school meals applications at the Council he confirmed he agreed with Mrs X that if she could demonstrate she was eligible for free school meals when she applied, she would continue to qualify because of the transitional protection rule. He explained that the question was not whether the evidence she had provided showed she was receiving Child Tax Credits or that she was not receiving Working Tax Credits. He said it was simply that the Council did not accept a provisional tax award as evidence no matter what it said, in line with advice received from the DfE. However if Mrs X could now provide a final award notice or a letter from the HMRC showing she was receiving Child Tax Credits, but not Working Tax Credits, and had an income of less than £16,190 when she applied for free school meals, the Council would review its decision.

Analysis – was there fault causing injustice?

22. It is not for the Ombudsman to decide whether Mrs X’s family qualifies for free school meals or not, or to evaluate her evidence. I have to consider whether there was fault in the way the Council reached its decision.
23. The Council rejected Mrs X’s application because the only evidence she has provided is a provisional award notice which it says is not acceptable. Mrs X makes the point that “all tax credit notices are effectively provisional until they are finalised, usually months after the end of the relevant tax year”. She says she has seen nothing in any guidance or information from the DfE which says councils should not accept provisional award letters as evidence, and the DfE told her this was not the case.
24. It is for the Council to decide whether it is satisfied by the evidence that an applicant is eligible for free school meals. In this case the Council gave Mrs X an opportunity to provide further evidence once the ECS returned an inconclusive result. Although there is nothing in the Guidance about the type of evidence that is acceptable, the Council had checked the position with the relevant section of the DfE. In the absence of any other Government guidance to the Council I could not say it was at fault for following the advice it received.
25. It is the case that the nature of tax credits means that awards may be reviewed during a tax year and then finalised later, as Mrs X says. However the Council will consider evidence in the form of final award letters which the HMRC issues, or any other letter from the HMRC. The Council gave Mrs X another opportunity to provide further evidence after she made her complaint. It has made it clear the offer still stands.
26. In my view the Council’s offer to review its decision if Mrs X provides further evidence is an appropriate way forward. In response to my draft decision the Council has also agreed to my suggestion to contact the DfE again to clarify the position, in case the advice has changed since 1 April 2018 when the transitional protection was introduced. If the Council maintains the position that provision award letters are not sufficient evidence of receiving qualifying benefits, it has agreed to tell applicants this on its website or application forms.

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Final decision

27. I do not find that the Council was at fault in the way it considered Mrs X’s application for free school meals. It followed advice it received and gave her the opportunity to provide further evidence. It has agreed to clarify the position with the DfE.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman