Summary: the Council has taken appropriate action in response to concerns raised by Mr F about a nursery’s charges. There is no fault by the Council.

The complaint

1. Mr F complains about the Council’s response to his concerns about charges made by the nursery where his daughter received 15 hours of free childcare (the Free Early Education Entitlement, or FEEE). In particular, he is unhappy with charges for ‘extras’ the nursery made while providing the free childcare. He disagrees with the Council’s conclusion the charges he paid were in line with the statutory guidance.

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What I have and have not investigated

2. I have investigated the Council’s response to Mr F’s concerns. I have not investigated the actions of the nursery.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as nurseries. (Local Government Act 1974, sections 25 and 34(1), as amended)
4. 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 an organisation’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

5. I have considered information provided by Mr F and information provided by the Council. I invited Mr F and the Council to comment on my draft decision.

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What I found

Free Early Education Entitlement

6. The Childcare Act 2006 (as amended) places a duty on councils to secure early years provision free of charge. Regulations set out how councils should discharge their duty. The government has also issued statutory guidance councils must follow and from which they must not depart unless they have good reason.
7. All children who meet the eligibility criteria can take up a free childcare place if their parent wants one. This is known as the Free Early Education Entitlement.
8. Children are entitled to between 570 and 1,140 hours of childcare over no fewer than 38 weeks of the year depending on their age and eligibility.
9. 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)
10. 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, providers who choose to offer the free entitlements are responsible for setting their 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)
11. 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)
12. 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)
13. Councils must exercise their functions with a view to securing childcare providers’ compliance with these requirements. (Childcare Act 2006, s9(2))

Mr F’s complaint

14. Mr F wrote to the Council on 21 August 2021 to query the nursery’s charges. His daughter was due to receive 15 hours of free childcare from the beginning of September and he had just received the first invoice. He said it appeared the nursery was charging £40 per day for meals and consumables. He said he had asked the nursery for a breakdown of the charges, as advised on the Council’s website, but the nursery had refused. He asked the Council to help.
15. The Council explained that nurseries can charge for meals and consumables but must be completely transparent about the charges. The Council said that from a quick look at the invoice it appeared the charges were in order but advised Mr F to contact the nursery for an explanation.
16. Unhappy with its response, Mr F pressed the Council to help. The Council agreed to contact the nursery and asked whether it could discuss Mr F’s invoice. The Council said Mr F would remain anonymous, but it was likely the nursery would guess he had complained.
17. Mr F said he was concerned the nursery would withdraw his daughter’s place if he was seen to be complaining. He said that unless there was a way for him to remain anonymous, he would prefer to defer the matter until the following summer once his daughter had left the nursery. He said he felt strongly about the matter and would wish to pursue his complaint for the benefit of other parents.
18. The Council acknowledged Mr F’s concerns and said it would not contact the nursery regarding his specific query and would not identify him in any communication. However, the Council explained that nurseries are audited to ensure their compliance with the guidance.
19. Mr F contacted the Council again on 29 July 2022 to say that his daughter had left the nursery and he would like the Council to take up his concerns directly with the nursery. He said he still felt strongly about the matter and was also considering legal action against the nursery.
20. Mr F explained that his concerns related to charges which were a condition of his daughter taking up her place at the nursery which should have been optional, and the lack of transparency in the nursery’s invoices.
21. The Council acknowledged Mr F’s concerns and said it would “liaise with the nursery from a statutory guidance perspective regarding invoices and the delivery of the free entitlement.”
22. The Council sent its response, a short letter, on 3 October 2022.
23. The letter said the Council audited nurseries’ compliance with the guidance, and, although it could not share details of an audit, nurseries that did not comply could not deliver the free early education entitlement.
24. The letter did not say whether the Council had audited the nursery Mr F’s daughter attended.
25. Unhappy with the Council’s response, Mr F complained to us on 18 October 2022. We asked the Council to provide a formal response to Mr F’s complaint about the service he had received.
26. The Council responded on 7 February 2023. The Council said it had considered the findings of an audit of the nursery’s charges. The Council was satisfied Mr F had not been overcharged and his daughter had received all the free childcare to which she was entitled.
27. Unhappy with the Council’s response, Mr F asked us to investigate his complaint.

What happened

28. When Mr F first complained, it appears he had misunderstood the nursery’s invoice. He said it appeared the nursery was charging £40 per day for meals and consumables. This was not the case. There was a charge for ‘extras’, which were not itemised on the invoice, but it was not £40 as Mr F thought.
29. The Council explained the charges and offered to take the matter up with the nursery. Mr F decided not to pursue the matter at the time. He said he was afraid the nursery would withdraw his daughter’s place if he complained.
30. I am satisfied the Council responded appropriately. There is no fault by the Council here.
31. Mr F asked the Council to take up his concerns with the nursery ten months later once his daughter had left the nursery. By this time, his complaint had changed. He was no longer complaining about the amount of the additional charge, but rather the fact it was a condition of taking up a place at the nursery.
32. The Council undertook an audit. The Council sent me information from the audit, including information from the nursery about its charges, the contract Mr F signed with the nursery for his daughter’s care, an example of an invoice and the Council’s correspondence with the nursery.
33. The nursery makes a substantial charge (an ‘additional parent contribution’) for meals, refreshments, consumables, and an enhanced activities programme for children receiving the free early education entitlement.
34. The charge is clearly stated in the nursery’s price list.
35. The contract, signed by Mr F, says that parents agree to pay the additional parent contribution for meals, refreshments, consumables, and the enhanced activities programme during FEEE sessions.
36. The charge is clearly shown on the invoice.
37. Following the audit, the Council wrote to the nursery to explain that additional charges for children receiving the FEEE must be voluntary. However, it is for the nursery to decide how to respond to parents who do not wish to pay. The Council asked the nursery to develop, and implement, a policy for parents accessing FEEE who do not wish to pay the charge. The Council said it would not release the next term’s funding until it received a satisfactory response.
38. I am satisfied the Council responded appropriately to Mr F’s concerns and took appropriate action following the audit. There is no fault by the Council.
39. In an ideal world, the Council would have taken action sooner. But the Council has limited resources and Mr F specifically asked it not to prejudice his daughter’s place at the nursery.
40. In any event, the charges Mr F challenged were clearly stated ‘up front’ and explicitly described in the contract he signed. This is in contrast to other cases we have investigated where top-up charges were hidden in complex fee structures. If Mr F had been unwilling or unable to pay the charges, he could have raised the matter with the Council before signing the contract. The Council could then have taken action or helped Mr F find an alternative nursery.
41. Mr F chose to pay the charges and send his daughter to the nursery. He has pursued his complaint for the benefit of other parents. I am satisfied the Council has taken appropriate action in response.

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Final decision

42. I have completed my investigation. The Council has taken appropriate action in response to the concerns raised by Mr F about the nursery’s charges. There is no fault by the Council.

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Investigator's decision on behalf of the Ombudsman