Council told to maintain “better oversight” of nurseries providing free places following investigation by Ombudsman

The Local Government and Social Care Ombudsman has told Bournemouth, Christchurch and Poole Council to maintain “better oversight” of nurseries’ charging structures when they are providing the Government’s free places scheme, after the issue was highlighted in a father’s complaint.

The Ombudsman's report was published yesterday (8 May), more than two years after the complaint was originally made, due to a legal challenge brought by the council over the Ombudsman’s assessment of the Department for Education (DfE) guidance, which was ultimately dismissed.

The father behind the complaint was concerned the nursery his child attended was charging a mandatory fee, which it called ‘general extras’, for parents who wanted to use their free-hours at nursery during certain times of the day.

The Ombudsman found that, along with “several” other complaints across the country, the nursery was charging a top up fee, to bridge the gap between what a private client would pay for the care hours, and what the council pays on behalf of the Government scheme.

The Ombudsman said: “This is against national guidance published by the Department for Education, which explains that parents should not face mandatory charges for accessing free hours.

“Nurseries can charge for extras such as meals, snacks or for consumables such as nappies or sun cream, but that this should be voluntary, and any charges should be itemised.

However, in this case the parents could not choose whether to pay or not, and it was not clear what the charges went towards.”

The Ombudsman concluded that once the council had received a complaint, it should have ensured the nursery’s pricing policy was “transparent”, and worked with the nursery to ensure its invoices were “clear and itemised”.

To remedy the injustice caused, Bournemouth, Christchurch and Poole Council was recommended to apologise to the father and reimburse him for any ‘general extras’ he paid the nursery after he brought the issue to the council’s attention, along with a further £200 for his time and trouble in bringing the complaint.

Further, the Ombudsman asked the council to write to all providers in its area who are providing places under the Free Early Education Entitlement (FEEE) scheme, to tell them any top-up fees charged for the free places should be voluntary.

The Ombudsman finally told the council to ask the nursery in the present case to change its pricing policy so that it is in line with the Guidance and Provider agreement.

The Ombudsman said: “If the nursery refuses to change its pricing policy, the council should consider its powers to terminate the Agreement and withdraw funding in whole or in part.”

Local Government and Social Care Ombudsman, Ms Amerdeep Somal said: “We are publishing this report now, more than two years after it was originally made, due to a drawn-out legal challenge. We are pleased the judge has now provided clarity on the matter, by deciding in favour of our finding, which upholds the premise that any extras to the free entitlement must be clear and transparent.

“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. I now look forward to the council implementing the recommendations to improve its services, which the report contains.”

Cllr Richard Burton, Bournemouth, Christchurch and Poole Council’s Cabinet Member for Children, Young People, Education and Skills said: “We acknowledge the judgment of the High Court in this case and will be making a direct apology to the resident.

“At the time of the complaint, the guidance that nursery settings and Local Authorities were working with in applying the government’s Free Early Educational Entitlement (FEEE) scheme was not entirely clear.

“BCP Council sought clarity from the court on the Local Government and Social Care Ombudsman (LGO) assessment of this guidance, and whilst the judgment was only a ruling on the facts of this one specific case, the Judge accepted that no consistent approach had been taken by the LGO concerning the operation of the statutory FEEE scheme.

“We welcome the clarity this ruling provided and note that the High Court judgment coincided with the conclusion of the Department for Education’s (DfE) work, announced last Autumn, to update the charging section of the statutory guidance around the FEEE scheme.”

He added: “[…] As the responsible local authority for nursery providers we are already engaging directly with them on this issue; informing them of the LGO report and the DfE updated guidance, reminding them of the government’s expectations in terms of pricing, and beginning a programme of work to provide further training, guidance and intensive support around the issue of top-up fees.”

Lottie Winson