Summary: We will not investigate Mrs X’s complaint about the charging structure at a private nursery. There is not enough evidence of fault in the way the Council exercised its monitoring function for the free early education entitlement to warrant investigation. Whether the nursery offers term-time only fees is not a function of the Council and we cannot investigate the actions of the nursery.

The complaint

1. Mrs X said a nursery penalised parents whose children did not attend in the school summer holidays by the way it charged fees.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council’s role here was limited to monitoring the application of the free early education entitlement (FEEE). It can advise a provider that some kinds of extra charges are not compliant with government guidance. But it has no power to instruct a private nursery to charge term-time only fees for those parents whose children do not attend in August. The correspondence I have seen shows the Council carried out its monitoring role.
8. The issue of term-time only charging is a matter for the private nursery and not a function of the Council. We cannot investigate that.

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Final decision

9. We will not investigate Mrs X’s complaint because:

• There is not enough evidence of fault in the Council’s exercising of its monitoring function to warrant our involvement; and
• We cannot investigate the actions of the private nursery as this is not a Council function.

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Investigator's decision on behalf of the Ombudsman