Summary: We will not investigate this complaint about alleged discrimination by the Council. This is because it is unlikely we would find fault, we cannot achieve the outcome sought and the court is better placed to consider this complaint.

The complaint

1. Ms Y complains the Council is discriminating against her in not allowing her nursery to provide government funded childcare due to her disability, while allowing another nursery with a poor Ofsted rating.

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The Ombudsman’s role and powers

2. 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, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

3. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

4. I spoke to Ms Y about her complaint and considered the information provided. Ms Y had the opportunity to comment on my views and accepted this finding as a final decision by telephone.

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What I found

5. Ms Y owns and runs a childcare nursery. She also has a disability, which was diagnosed last year. She says the Council stopped her from offering childcare to those entitled government funded childcare provision following concerns being raised with Ofsted that she was not well enough to run the nursery.
6. Ms Y has told us she intends to go to court to pursue a claim for disability discrimination. A court can make a legal judgement about whether the Council has discriminated against Ms Y and can award damages, which we cannot. As she intends to use her legal remedy to pursue this issue, the court is better placed to consider this complaint.
7. Ms Y also says she is seeking damages for, amongst others, a loss of income and to have the record kept on Ofsted’s website amended, to show she was not too unwell to run the nursery. She also wants the Council to allow her to accept children in receipt of government funded childcare into her nursery. These are outcomes which the Ombudsman cannot achieve but may be provided if ordered by a court.
8. It is also unlikely we would find the Council at fault, as we would not compare the measures the Council took in Ms Y’s case and another experience for a different nursery. Further, the Council acted following a suspension of Ms Y’s Ofsted registration. As nurseries offering government funded childcare must be approved by Ofsted, it is unlikely we would find the Council at fault for not allowing Ms Y to offer childcare using government funding.

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Final decision

9. We will not investigate this complaint about alleged discrimination by the Council. This is because it is unlikely we would find fault, we cannot achieve the outcome sought and the court is better placed to consider this complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman