Summary: Miss X complained her child’s nursery applied a mandatory charge for consumables linked to her child’s Free Early Education Entitlement (FEEE) hours. She complained the Council should have ensured the nursey’s charges were clear and transparent and that she received free nursery provision. We found the Council took appropriate action in response to Miss X’s concerns about the consumables charge. There is no fault by the Council.

The complaint

1. Miss X complained her child’s nursery applied a mandatory charge for consumables linked to her child’s Free Early Education Entitlement (FEEE) hours. Miss X says this was presented as a standard charge with no indication it was voluntary or that she could opt out.
2. Miss X complained the Council should have ensured the nursey’s charges were clear and transparent and that she received free nursery provision.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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(1), as amended)

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What I have and have not investigated

5. The Ombudsman does not investigate the actions of childcare providers as they are not a body within our jurisdiction. However, councils are subject to some legal duties in relation to local childcare providers and the Ombudsman can investigate whether councils have had regard to these duties.
6. In this case I have not investigated the childcare provider itself. I have investigated the steps the Council took to investigate and respond to Miss X’s concerns and its actions to ensure compliance with relevant law and guidance by the childcare provider.

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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Free Early Education Entitlement (FEEE)

9. The Childcare Act 2006 (as amended) places a duty on councils to secure early education provision free of charge at either 15 or 30 hours a week for a qualifying child, over at least 38 weeks of the year. This is known as the Free Early Education Entitlement (FEEE). The government has also issued statutory guidance councils must follow.
10. 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). 
11. 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. Parents must be able to opt out of paying for chargeable extras
12. Councils should ensure that providers are completely transparent about any additional charges. They should ensure providers publish their admissions criteria and any fees for consumables, additional hours and services.

What happened here

13. Miss X’s child, Y, attended a nursery and received 30 hours of free child care per week. Between March 2024 and April 2025 the nursery charged Miss X a consumables charge £2.50 per funded hour.
14. The nursery informed Miss X of changes to its FEEE policy with effect from 1 April 2025. This included limiting fully free sessions to certain periods, with the option for parents chose to pay a sustainability contribution if they needed more flexibility.
15. In March 2025 Miss X asked for an itemised bill showing what the consumable charge included. The nursery confirmed it covered meals, snacks, craft resources and other activities the nursery provided. It said it was an integral part of its cost recovery, without which it would not be able to offer a sustainable service.
16. Miss X said she was led to believe that the charge was mandatory but has since been told it was optional. She told the nursery that had she known she would have opted for a smaller / voluntary amount.
17. The Council has an agreement with Y’s nursery to deliver FEEE. Miss X asked the Council to review the nursey’s practice as she was concerned about a lack of clarity and transparency regarding the voluntary nature of the consumables charge. She said this was presented as a standard charge with no indication that it was voluntary or that she could opt out.
18. The Council contacted the nursery and asked it to explain the way in which it offered funded entitlement, specifically how it shared information with parents regarding the consumables charges.
19. It reminded the nursery that in line with its Local Provider Agreement issued prior to April 2025 that all additional consumables charges must be voluntary for the parent.
20. The nursery told the Council that prior to April 2025 it made a consumables charge per funded hour for all Government funded sessions. The only exception was where the parent was in receipt of the Early Years Pupil Premium (EYPP), or the child was funded through the low/no income route.
21. It said its charging policy was detailed in its Terms and Conditions, its Early Years Entitlement Policy and its registration form. It was also available on its website. The nursery said Miss X was aware of the policy when she registered and when Y became eligible for funded hours she signed to accept the terms and conditions.
22. The nursery said it changed its FEEE policy from 1 April 2025 in light of the updated statutory guidance.
23. The Council sought advice from its legal department and concluded the nursery did not make the voluntary aspect of the charges clear to parents. It also noted the nursery had made some efforts to offer an alternative to the consumables charge. This was specifically to parents who qualified for the EYPP, or whose child was funded through the low/no income route.
24. Whilst the alternative solution was not applicable to Miss X the Council considered the nursey had discharged its duty under the Local Provider Agreement. The Council told Miss X that the issue of whether she should receive a refund of the consumables charge was a matter between her and the nursery.
25. Miss X remains dissatisfied and has asked the Ombudsman to investigate her concerns. She says she was denied her child’s entitlement to genuinely free childcare and was left out of pocket.

Analysis

26. We cannot investigate the actions of early years providers as they are not a body in our jurisdiction and FEEE places are not a function being provided on behalf of the Council. Our role is to investigate the administrative actions of councils.
27. The Council’s responsibility starts at the point it is notified that the childcare provider may be charging for FEEE hours incorrectly. When Miss X raised concerns about the consumables charge the Council contacted the nursery for an explanation and then took legal advice. It concluded the nursery had not made the voluntary aspect of the charge clear to parents but had made some effort to offer alternatives to the consumables charge.
28. The nursery has changed its policy, including around the provision of fully free sessions and Miss X was not charged a consumables fee after 1 April 2025. It was not therefore necessary for the Council to take action to ensure the nursey was transparent about its charges.
29. I am satisfied the Council took appropriate steps to properly investigate Miss X’s complaint about the consumables charges. There is no fault by the Council.
30. We would not expect the Council to reimburse Miss X the cost of the consumables charge in this instance.

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Decision

31. I find no fault.

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Investigator's decision on behalf of the Ombudsman