Summary: We will not investigate Mr X’s complaint about changes to the Council’s Early Years Provider Agreement which he says threaten the viability of his business. There is not enough evidence of fault to justify an investigation.

The complaint

1. Mr X complains about changes to the Council’s Early Years Provider Agreement which he says threaten the viability of his business.
2. The Early Years Provider Agreement concerns free early years provision and childcare funded by the Government, sometimes known as the ‘free early education entitlement (FEEE).
3. Free early years provision and childcare is funded by the Government, managed by Councils and delivered by a range of bodies including private businesses.
4. Mr X runs a business which delivers free early years provision and childcare funded by the Government.

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The Ombudsman’s role and powers

5. 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, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

6. I considered information provided by Mr X.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X said, “Brighton & Hove City Council have placed us in jeopardy by unilaterally publishing a Provider Agreement that essentially stops Private, Voluntary, and Independent (PVI) nurseries from charging parents for access to what they deem as "free" childcare.”
9. He goes on to say, “‘Voluntary contributions’ (his quotation marks) make up almost 50% of our income due to failures, on the part of Brighton & Hove City Council, to properly fund [us]. The disputed Provider Agreement offers no viable option for us to recover this loss.”
10. He complains about the way the Council handled the introduction of the new agreement and outlines what he believes are the implications for his business.
11. We recently published a report about free early years provision and childcare.
12. The Ombudsman said, “We recognise the pressures councils and nurseries face in ensuring sustainable access to free early-years entitlement. However, the law is clear that free entitlement is just that; parents should not face mandatory charges as a condition to access the scheme. When councils are made aware of problems, they must act in a timely manner to ensure that local nursery providers are following the law.”
13. Mr X sent me a copy of the Council’s Early Years Provider Agreement.
14. The agreement is based on the Department for Education’s model agreement template for free early years provision and childcare.
15. It sets out clearly the charges providers are entitled to make and those they are not.
16. There is not enough evidence of fault to justify investigating Mr X’s complaint.
17. The funding Mr X’s business receives is determined by the Council using a framework set by the Department for Education. It is beyond our remit to question the Government’s funding formula. We cannot achieve the outcome Mr X wants.

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Final decision

18. We will not investigate Mr X’s complaint because there is not enough evidence of fault to justify investigation.

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Investigator's decision on behalf of the Ombudsman