The Administrative Court handed down judgment in this case on 7 February 2025.
This case concerned the lawfulness of mandatory extra charges levied by private nurseries on parents accessing free childcare through the government’s Free Early Education Entitlement (“FEEE”) scheme. Under the scheme families can access 15 or 30 hours of free childcare from participating nurseries and other childcare providers. Central government provides funding, channelled through local authorities, to support the cost of nursery placements for defined categories of parents of pre-school children of defined ages under the scheme.
Local authorities are under a statutory duty to secure the availability of sufficient state funded childcare to meet the needs of all eligible children in their area. In doing so, they require the support of nurseries, many of whom are private businesses, to provide childcare through the FEEE scheme. Nurseries had however complained that the amount of funding per child per hour under the FEEE scheme was too low, and it was common ground that it was generally lower than the amount charged to paying parents.
Consequently, nurseries had an incentive to secure extra revenue from parents whose children were supported under the fee scheme by imposing extra charges. Local authorities had a real concern that taking a hard line on additional “top up” charges could lead to a diminution in the availability of FEEE childcare in the area and this may make it difficult for to deliver on their statutory duty.
Mr X’s child attended a privately-operated nursery in the Bournemouth area. He complained to Bournemouth, Poole and Christchurch Council (the “Council”) that he was wrongly required by the nursery to pay additional charges where his child was provided with childcare under the FEEE scheme. After his complaint was refused by the Council, Mr X complained to the Local Government and Social Care Ombudsman (the “LGSCO”) who upheld the complaint in a report (the “Report”) which found maladministration against the Council. The Council brought a judicial review challenge against the Report.
In setting out the background to the challenge, the Judge acknowledged the wider context to the dispute between Mr X and the Council that the LGSCO was ultimately being called upon to adjudicate:
“Childcare in the UK consumes a significant proportion of the budgets of parents of young children, particularly in the years before they attend schools. Parents on medium to low incomes can find themselves having to pay a significant proportion of their earnings to meet childcare costs, particularly if they have more than one pre-school child. In order to assist this group of parents, the government provides funding to support the cost of nursery placements for defined categories of parents of pre-school children of defined ages up to a maximum number of hours per week” [§6].
Central issue in the claim
There were numerous grounds of challenge brought by the Council in seeking to quash the LGSCO Report.
However, the central issue in the case was the question of whether nurseries participating in the FEEE scheme are entitled to impose mandatory additional charges on parents under the relevant statutory scheme. In answering this question, the court held that the statutory scheme provided there was a duty on local authorities “to ensure that, if a nursery is taking part in the FEEE scheme, parents must be able to access FEEE funded childcare without making additional payments” [§66]. The LGSCO had therefore been right to conclude that any form of mandatory fee, regardless of how it was labelled within the relevant statutory guidance or what it was intended to cover, should not have been charged in connection with the provision of childcare through the FEEE scheme.
The full judgment is here.
The LGSCO were represented by Natalie Cohen, Fred Allen and Charlie Roe in Kingsley Napley’s Public Law team. Counsel for the LGSCO was Hannah Slarks of 11 KBW.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Share insightLinkedIn X Facebook Email to a friend Print