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Herefordshire Council (20 011 562)

Category : Education > Other

Decision : Not upheld

Decision date : 24 Jun 2021

The Ombudsman's final decision:

Summary: Mrs M cannot take up her children’s Free Early Education Entitlement at a nursery in Wales because the nursery is not eligible. There is no fault by the Council.

The complaint

  1. Mrs M complains she cannot access free childcare for her children (the Free Early Education Entitlement) at a nursery in Wales.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

  1. I have considered:
    • information provided by Mrs M;
    • information provided by the Council;
    • the Childcare Act 2006 and the Childcare Act 2016; and
    • Early education and childcare. Statutory guidance for local authorities issued by the Department for Education in June 2018.
  2. I invited Mrs M and the Council to comment on my draft decision.

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What I found

  1. Mrs M lives close to the border with Wales. She works in Wales. She has young children who are eligible for free childcare. She would like to use a nursery close to where she works. She complains she cannot access the free childcare to which she is entitled at a nursery in Wales. As a result, she says she is denied access to the free childcare she is entitled to receive.
  2. Mrs M has raised the issue with both the Council and HMRC. She says she has received conflicting information: the Council says it is not possible to access free childcare in Wales; HMRC says it is.

Free childcare

  1. Children in England aged 2, 3 and 4 may be eligible for free childcare. This is know as the Free Early Education Entitlement. The eligibility criteria are set by the Government. To qualify, the child, its parents and the childcare provider must meet the eligibility criteria.
  2. The free childcare is funded by the Government, administered by the Council and (usually) delivered by private nurseries or childminders.
  3. Nurseries and childminders can choose whether to offer the free childcare. Parents can choose any nursery participating in the scheme. The Council pays the nursery directly for the free childcare.
  4. All children in England aged 3 and 4 are eligible for 15 hours of free childcare for 38 weeks a year (a total of 570 hours per year). This is known as the ‘universal entitlement’.
  5. Children aged 3 and 4 with working parents may be eligible for 30 hours of free childcare for 38 weeks a year (a total of 1,140 hours per year). This is known as the ‘extended entitlement’. Eligibility for the extended entitlement is decided by HMRC.
  6. Not all nurseries or childminders provide the Free Early Education Entitlement. Their participation in the scheme is voluntary. To participate, however, they must meet minimum standards. They must be registered with Ofsted, the regulator, and they must deliver the Government’s Early Years Foundation Stage curriculum. They must be rated ‘good’ or ‘outstanding’ in their latest inspection.
  7. The Free Early Education Entitlement only applies to children living in England. The Welsh Government has a similar scheme for children living in Wales, but its rules are different. The Welsh and English schemes do not ‘join up’, and they are not available to families living in the other country.


  1. Providers (nurseries or childminders) decide whether to offer the Free Early Education Entitlement. To be eligible, they must be registered with Ofsted, deliver the Early Years Foundation Stage and be rated ‘good’ or ‘outstanding’ in their latest inspection.
  2. Mrs M’s preferred nurseries, in Wales, are not eligible. They are not registered with Ofsted, the English regulator, and do not deliver the Early Years Foundation Stage. The Council is correct that Mrs M cannot take up the Free Early Education Entitlement for her children at the nurseries. There is no fault by the Council. I cannot comment on the advice Mrs M says she was given by HMRC.
  3. Mrs M has not been denied the free childcare to which she is entitled. While I appreciate it is less convenient, she can access it at other nurseries in England.
  4. Mrs M, and the nurseries she wishes to use in Wales, may wish to raise the matter with Mrs M’s Member of Parliament, since it is the Government, not the Council, that sets the regulations.

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Final decision

  1. I have completed my investigation. There is no fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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