Summary: Mrs D complained the Council failed to ensure that a nursery did not charge top up fees for free early education places and did not investigate her complaint properly. We found the sustainability charge was in line with the statutory guidance. There was fault in complaint handling which the Council has already apologised for.

The complaint

1. Mrs D complained the Council failed to ensure that a nursery did not charge top up fees for free early education places and did not investigate her complaint properly. This has caused her a huge financial strain and distress.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as childcare providers. (Local Government Act 1974, sections 25 and 34(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(i), as amended)

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How I considered this complaint

5. I considered the information Mrs D sent, the Council’s response to my enquiries and:
• The Childcare Act 2006 (as amended)
• The Childcare Act 2016
• The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014
• Early education and childcare statutory guidance 2018
• Early education and childcare statutory guidance 2024
6. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Free Early Education Entitlement

7. All children aged 9 months to 4 years old who meet certain eligibility criteria may take up a free childcare place. This is known as the Free Early Education Entitlement (FEEE). The eligibility criteria are set by the Government. Working parents may be able to get free childcare as follows:
• 9 months to 2 years old, 15 hours per week of free childcare
• 3 to 4 years old, 30 hours per week of free childcare
8. From 1 April 2024, all 3 and 4-year-olds in England are entitled to 15 hours of free early education or childcare per week.

Charges for consumables

9. The free childcare is funded by the Government (administered by local authorities). The guidance says the funding does not cover the costs of meals, other consumables, additional hours or additional services, which early years providers may charge for.
10. Until 31 March 2024, the statutory guidance said charges for consumables must be voluntary. Since 1 April 2024, the guidance has removed the requirement for the charges to be voluntary. It says providers should be mindful of the impact of additional charges on parents.
11. Where parents are unable or unwilling to pay for meals and consumables, providers who choose to offer the free childcare are responsible for setting their own policy on how to respond, with options including allowing parents to supply their own meals or nappies or waiving or reducing the cost of meals and snacks.
12. The statutory guidance says providers should be completely transparent about any additional charges when a parent first takes up their child’s free place.

The Council’s role

13. The Childcare Act 2006 (as amended) places a duty on councils to secure early education provision free of charge. Regulations and the statutory guidance set out how councils should discharge their duties. The statutory guidance says councils must:
• 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).
• Ensure that providers are aware that they can charge for meals and snacks, consumables, such as nappies or sun cream, and for services such as trips and specialist tuition.
• Ensure providers are completely transparent about any additional charges, for example, for those parents opting to purchase additional hours or additional services.
• 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.
14. Councils are not responsible for providers’ individual charging arrangements or charging policies and are not required to proactively audit each provider.

Council complaint procedure

15. The Council has a two-stage complaint procedure for corporate complaints. At the first stage it aims to respond within 10 working days.
16. If the complainant is dissatisfied with the response to their complaint, they may ask for it to be escalated to the next stage. The Council’s policy says if the complainant’s outstanding complaint is not substantive, or the desired outcome is unachievable, it may decline to escalate the complaint.

What happened

17. Mrs D’s child was attending a nursery and started accessing the FEEE hours. After the first month, the nursery invoiced Mrs D for a “sustainability charge” of £2.80 per hour. Mrs D raised concerns with the nursery about this.
18. The nursery replied on 10 April 2024 that it was a nominal charge for additions as set out in its affordability brochure on its website. This says the charge covered everyday consumables, meals, drinks and snacks, and curriculum programmes such as trips. The brochure says packed lunches cannot be provided by parents.
19. Mrs D remained dissatisfied. She replied that:
• The nursery did not offer trips or additional provision.
• There was no evidence that the curriculum extended beyond basic requirements.
• The brochure indicated the charge covered other elements, such as a transition to school which her child was not using, and staff training but the nursery had “confirmed that staff receive only the basic training.”
• The nursery had refused to provide a breakdown of costs.
• There was no means for parents to opt out of the charge. The manager had said the nursery would waive the top up for some families, but this was inconsistently applied.
• The nursery was not transparent about the charge and parents only became aware upon receipt of the first invoice.
20. Mrs D therefore considered the sustainability charge was in breach of the statutory guidance. She complained about this to the Council on 23 April.
21. The Council replied to Mrs D’s complaint on 7 June. It apologised for the delay. It said the sustainability charge was in line with the statutory guidance. The provider’s sustainability policy explained the reasoning for the fees. Providers were not required to allow parents to provide a packed lunch. Not all providers could offer fully funded places and were able to offer the funded hours however they wish. The Council did not signpost Mrs D to the next stage in its complaint process.
22. Mrs D came to the Ombudsman. The Council advised us it had not dealt with Mrs D’s complaint through its complaint procedure. We decided to investigate as the Council had had an opportunity to respond to Mrs D’s complaint.
23. In response to my enquiries, the Council said it had an agreement with childcare providers which the nursery had signed up to. This reflects the requirements in the statutory guidance. To meet its duties, the Council audits a sample of providers annually, invites them to training and meets senior managers.

My findings

24. The Ombudsman 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. My role is to investigate the administrative actions of councils. So I have considered the way the Council responded to Mrs D’s concerns about the charge and whether the Council has sufficient oversight of the way the provider charges parents.
25. When the Council became aware of Mrs D’s concern about the sustainability charge, it considered this and decided it was in line with the statutory guidance. I have seen no evidence of fault in the way the Council reached this view and I agree with the Council’s view.
26. The sustainability charge is for consumables, food and other services as allowed by the statutory guidance.
27. Mrs D says some of the services listed in the provider’s brochure are not available to her. But the brochure gives examples of services the charge may cover and all fall within the statutory guidance. The brochure is not intended to list specific services provided to Mrs D. Mrs D says the charge was not voluntary but there was an option to ask for it to be waived.
28. Mrs D says the charge is not itemised but the £2.80 per hour sustainability charge is itemised on her invoice. There is no requirement on the Council or provider to specify the costs that this charge is comprised of.
29. The charge is shown on the provider’s website and I consider this is in line with the guidance on transparency. In addition, there is an option for the charge to be waived. My view therefore is that the sustainability charge is in line with the requirements of the statutory guidance.
30. The Council has procedures in place to audit providers and their agreement with providers is intended to ensure compliance with the statutory guidance.
31. The Council delayed responding to Mrs D and did not properly deal with her complaint through its complaint procedure. This is fault. The Council has already apologised. I consider that to be a suitable and proportionate remedy for the injustice caused.

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Final decision

32. There was fault by the Council. The actions the Council has already taken remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman