The Ombudsman's final decision:
Summary: Mr F objects to a nursery’s charge of £1 per hour for “consumables” when his children access their free early education entitlement. It is for the nursery to decide how to respond to parents who cannot or do not want to pay the charge; Mr F could take his business elsewhere. The Council is working with the nursery to ensure its charges are clear, transparent and itemised. There is no fault by the Council.
- Mr F complains about charges made by the nursery where his child accesses the Government’s Free Early Education Entitlement. The nursery charges £1 per hour for “consumables”. He complained to the Council and is unhappy with the Council’s response.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
How I considered this complaint
- I have considered:
- information provided by Mr F, including invoices and correspondence with the nursery, the Council and the Department for Education;
- information provided by the Council, including its response to Mr F’s complaint.
What I found
- Mr F’s children attend a nursery in Bristol.
- Early in 2020, the nursery introduced a charge of £1 per hour for consumables for children accessing the Free Early Education Entitlement. The nursery waives the consumables charge for children entitled to the early years pupil premium.
- Mr F complained to the Council about the nursery’s charges. He objects to the nursery’s charge of £1 per hour for “consumables”.
- The Council reviewed the charges and agreed the nursery needed to give greater clarity about what the consumables charge covered. The Council contacted the nursery, and the nursery agreed to work with the Council to address the Council’s concerns.
- Mr F remained dissatisfied. He contacted the Department for Education (DfE). The DfE explained the Council was responsible for ensuring providers do not charge inappropriately. The DfE confirmed providers can charge for consumables and suggested Mr F contact the nursery directly to discuss alternatives to the consumables charge. If the nursery was unwilling to waive the fee, the DfE suggested he looked for an alternative nursery.
- Mr F remains dissatisfied and complained to the Ombudsman. He does not think he should have to pay the charge for consumables, particularly in light of the financial pressures caused by the pandemic. He wants the charges to be refunded.
- 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.
- The free childcare is funded by the Government, administered by the Council and (usually) delivered by private nurseries or childminders.
- 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.
- Regulations set out how councils should discharge their duties. The government has also issued statutory guidance councils must follow and from which they must not depart unless they have good reason.
- The guidance says the free places must be delivered completely free of charge. Councils should ensure that providers do not charge parents “top-up” fees (any difference between a provider’s normal charge to parents and the funding they receive from the local authority to deliver free places). (Early education and childcare. Statutory guidance for local authorities published by the Department for Education in June 2018, paragraph A1.30)
- Providers can charge for meals and snacks, and consumables such as nappies or sun cream, as part of a free entitlement place, although these charges must be voluntary. Where parents are unable or unwilling to pay for meals and consumables, the provider is responsible for setting its own policy on how to respond. (Early education and childcare. Statutory guidance for local authorities published by the Department for Education in June 2018, paragraph A1.25)
- Councils should ensure that providers are completely transparent about any additional charges, for example for those parents opting to purchase additional hours or additional services. (Early education and childcare. Statutory guidance for local authorities published by the Department for Education in June 2018, paragraph A1.29)
- Councils should “Work with providers to ensure their invoices and receipts are clear, transparent and itemised allowing parents to see that they have received their child’s free entitlement completely free of charge and understand fees paid for additional hours or services.” (Early education and childcare. Statutory guidance for local authorities published by the Department for Education in June 2018, paragraph A1.33)
- Councils must exercise their functions with a view to securing childcare providers’ compliance with these requirements. (Childcare Act 2006, s9(2))
- We are only concerned with the provision of the Free Early Education Entitlement, and the Council’s response when Mr F complained about the nursery’s charges.
- I note that the charge of £1 per hour is equivalent to an annual charge of £570 for children entitled to the universal entitlement, or £1,140 for those entitled to the extended entitlement.
- The nursery is entitled to charge for consumables and it is for the nursery, not the Council, to decide how to respond if parents are unable to pay or do not want to pay the charge.
- The nursery has decided to waive the charge for children who are eligible for the early years pupil premium. As Mr F is not eligible, the nursery is entitled to charge him for consumables. There is no fault by the Council. Mr F could ask the Council for help finding an alternative nursery where he does not have to pay for consumables.
- The Council considers the nursery should provide more detail about what the consumables charge covers. The Council is working with the nursery to improve the clarity and transparency of its invoices and charges. This is good. There is no fault by the Council.
- As there is no fault by the Council, I cannot recommend a refund of the consumables charge.
- I have completed my investigation. There is no fault by the Council.
Investigator's decision on behalf of the Ombudsman