“The provider should deliver the funded entitlements consistently to all parents, whether in receipt of 15 or 30 hours and regardless of whether they opt to pay for optional services or consumables. This means that the provider should be clear and communicate to parents details about the days and times that they offer funded places, along with their services and charges. Those children accessing the funded entitlements should receive the same quality and access to provision”
“11.1 Funded early education is part time place for each eligible child and must be completely free at the point of delivery. 11.2 Government funding is intended to cover the cost to deliver 15 or 30 hours a week of free, high quality, flexible childcare. It is not intended to cover the cost of meals, consumables, additional hours or additional services. 11.3 The provider can charge for meals and snacks as part of a funded entitlement place and they can also charge for consumables such as nappies or sun cream and for services such as trips and yoga. These charges must be voluntary for the parent. Where parents are unable or unwilling to pay for meals and consumables, providers who choose to offer the funded entitlements are responsible for setting their own policy on how to respond, with options including waiving or reducing the cost of meals and snacks or allowing parents to supply their own meals.”
“The provider must ensure their invoices and receipts are clear, transparent and itemised,allowing parents to see that they have received their entitlement completely free of charge andunderstand fees paid for additional hours, services or consumables.”
“The Enrolment Form and these Terms from the basis of the legally binding contract between the Parent and Tops (“the agreement”)”
“At Tops Day Nurseries we charge ‘general extras’ to any funded hour claimed during our core hours. This charge covers consumables and additional activities that are not covered by the Early Education Funding. These general extra charges are applied per hour during the weeks the funding is claimed. The charge per hour is£1.84 ”
“I wish to inform you that a registered nursery/childcare provider in your area namely Tops Day Nurseries is charging top up fees, in the form of general extras on their invoices, which according to government guidance and now a ombudsmen judgement is not legal. I wish to complain to you as the council and governing body regulating these providers. Myself and all families that have a right to free childcare for three and four year olds are being overcharged by this nursery and have a right to be reimbursed for the amount we have been overcharged. Please investigate this matter and get back to me. I am willing to provide evidence in the form of emails and invoices from the nursery detailing these top up charges”
“For the avoidance of doubt Tops does not charge ‘Top-up fees’. The term ‘Top-up fees’ is well defined in the Statutory Guidance and is understood to mean a charge … which is the difference between a provider’s usual fee and the funding they receive from the local authority to deliver free places. ‘General extras’ are not fees, they are actual goods and services provided in addition to and distinct from the services purchased by the fees. Therefore it cannot be said that Tops’ charges ‘tops-up fees’ in breach of clause 15.7 of the Provider Agreement. The general extra’s help Tops deliver its service to a high standard. They are a necessary part of the Tops’ brand and offering. They are necessary during the core-hours for the obvious commercial reasons, but beyond that and more fundamentally, it is necessary to make them mandatory for an operational and practical reason. The regulations around staff to child ratios are very rigid. Therefore it would not be operationally possible that some children are excluded from an activity such as yoga or boogie mites. Nor would it be financially viable to pay for the wages of a member of staff to look after a child that is not taking part in a general extra activity”
“Tops offers a pattern of ‘core’ and ‘non-core’ hours. Core hours are those from 9.30 am to 3pm. None-core hours are those hours booked before 9.30am or after 3pm. There is a mandatory charge for ‘general extras’ for bookings in the core hours, and this applies equally to all parents. Tops offers free entitlement places during the non-core hours. These hours are delivered consistently to all parents that chose to use them and any charges for ‘extras’ are voluntary. Parents do have the option, should they so choose, to book core hours and use their government funding entitlement to pay towards the cost of those hours. If they chose to do this, the mandatory charge will apply and this is made clear in Tops price list. The exceptions to the mandatory charges are: • if a child is accessing the Early Years Pupil Premium • if a parent has a second younger child at the nursery that does not access funding; • if a child access 30 hours funding and they attend for 40 hours or more a week. I must emphasise the point that it is the parent’s choice to make a booking in the core hours. All of the above is made clear in Tops Day Nursey price list.” • if a child is accessing the Early Years Pupil Premium • if a parent has a second younger child at the nursery that does not access funding; • if a child access 30 hours funding and they attend for 40 hours or more a week. All of the above is made clear in Tops Day Nursey price list.”
“General extras are not the same as the additional activities and consumables which you are referring to. These are extra-curricular activities (Cooking School, Forest School) which we offer in line with the statutory guidance….. The [fees] help us deliver our services to our brand standard”
“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”
“An English local authority must secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them— (a) to take up, or remain in, work, or (b) to undertake education or training which could reasonably be expected to assist them to obtain work.” (a) to take up, or remain in, work, or (b) to undertake education or training which could reasonably be expected to assist them to obtain work.”
“For the purposes of section 7(1) of the 2006 Act, an English local authority must secure that the prescribed early years provision is available for each young child for a period of 570 hours in any year and during no fewer than 38 weeks in any year”
“(1) An English local authority must discharge its duty to a young child under section 7 of the 2006 Act by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision to which the child is entitled in cases where— (a) the early years provider is willing to provide it, and (b) the early years provider is also willing to accept— (i) any terms as to the payments which would be made to him or her in respect of the provision, and (ii) any requirements which would be imposed in respect of it” (a) the early years provider is willing to provide it, and (b) the early years provider is also willing to accept— (i) any terms as to the payments which would be made to him or her in respect of the provision, and (ii) any requirements which would be imposed in respect of it”
“Charging Government funding is intended to deliver 15 or 30 hours a week of free, high quality, flexible childcare. It is not intended to cover the costs of meals, other consumables, additional hours or additional services. Local authorities should: A1.25 Ensure that providers are aware that they can charge for meals and snacks as part of a free entitlement place and that they can also charge for consumables such as nappies or sun cream, and for services such as trips and specialist tuition. Parents can therefore be expected to pay for these, although these charges must be voluntary for the parent. Where parents are unable or unwilling to pay for meals and consumables, providers who choose to offer the free entitlements 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. Local authorities should ensure that providers are mindful of the impact of additional charges on the most disadvantaged parents…. A1.29 Ensure that providers are completely transparent about any additional charges, for example, for those parents opting to purchase additional hours or additional services. A1.30 Work with providers and parents to ensure all parents, including disadvantaged families, have fair access to a free place, which must be delivered completely free of charge. 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). • require parents to pay a registration fee as a condition of taking up their child’s free place. A1.33 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.”
"Parliament was at pains to ensure that the commissioners should not conduct an investigation which might trespass in any way on the jurisdiction of the courts of law or of any tribunals."
“It seems to me that the most natural meaning to be given to section 26(6)(a) is that it excludes the jurisdiction of the Ombudsman when there may be an overlap and consequent risk of trespass between the issues that may be raised for determination in Tribunal proceedings, on the one hand, and that may be raised by the prospective investigation, on the other. Dealing always with substance (and trying not to be distracted by tendentious formulations) this means that the forbidden overlap is not merely in relation to the main subject or substance of the appeal (as was the case in ER) but includes those ancillary issues that may fall to be decided by the Tribunal. Trivia may, of course, be ignored.
“If the Ombudsman fails to consider the issue posed by section 26(6)(c) in a case in which it arises, he errs in law, and any subsequent investigation or report would be made without jurisdiction. As this is a jurisdictional question, it does not matter whether or not the Ombudsman considers it at the time. Any court which later considers the decision-making process must decide, as an objective question of law, whether the Ombudsman had jurisdiction, regardless of his own approach to the question. The jurisdictional bar is to be given a wide construction: see, in relation to the analogous provision in section 26(6)(a), R (Milburn) v the Local Government and Social Care Ombudsman[2023] EWCA Civ 207 .”
“Judicial review is a remedy of last resort. If there is another route by which the decision can be challenged, which provides an adequate remedy for the claimant, that alternative remedy should generally be used before applying for judicial review”
“There is, in theory at least, a possibility that, even if the court concludes that it ought otherwise to set aside a decision on the ground that a legally irrelevant factor was taken into account, it can none the less uphold the decision, if it is satisfied that it would be pointless to require the decision-maker to reconsider the question afresh, because he would reach the same answer”
"Pre-determination arises when a judge or other decision maker reaches a final conclusion before he or she is in possession of all the relevant evidence and arguments."
“The question is whether a fair-minded and impartial observer would conclude that the ombudsman had pre-determined the outcome of the complaint both at the outset of the investigation and at the Draft Report stage”
“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). (Early education and childcare. Statutory guidance for local authorities published by the Department for Education in June 2018, paragraph A1.30). 12. 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. (Early education and childcare. Statutory guidance for local authorities published by the Department for Education in June 2018, paragraph A1.25)”
“The [LGO} is urging councils to have better oversight of nurseries offering free early years places, after a nursery chain was found to be charging Leicestershire parents a ‘top up’ fee. Government guidance states that the free places must be free but Kiddi Caru nursery in Market Harborough charged parents the difference between the amount Leicestershire County Council paid the chain for the places and the amount they charged private customers. ….. Michael King, the [LGO] said: “Whilst I acknowledge local authorities - on the early years sector - are struggling financially, the government's intentions have always been that these places are provided free of charge to parents, and it is up to local authorities to administer them accordingly. Guidance states that council should work with providers to ensure invoices are clear, transparent and itemised. Free must mean free, but in this case it was not possible for the man to see how the invoice was calculated or whether his daughter was receiving her entitlement free of charge. We are concerned that local authorities may not be delivering on the government's pledge to parents, so I would urge other councils across the country to check their processes to ensure providers in their area are not making the same errors” “Whilst I acknowledge local authorities - on the early years sector - are struggling financially, the government's intentions have always been that these places are provided free of charge to parents, and it is up to local authorities to administer them accordingly. Guidance states that council should work with providers to ensure invoices are clear, transparent and itemised. Free must mean free, but in this case it was not possible for the man to see how the invoice was calculated or whether his daughter was receiving her entitlement free of charge. We are concerned that local authorities may not be delivering on the government's pledge to parents, so I would urge other councils across the country to check their processes to ensure providers in their area are not making the same errors”
“TOPS is free to restrict take up of free places to non-core hours, in line with the guidance which states that providers may not be able to offer fully flexible places. However, the Council has failed to advise Tops that if it wishes to allow parents to use their FEEE during core hours it may not then impose a mandatory additional charge when those places are taken up. Mr X has suffered injustice in that he has been wrongly charged, and paid top up fees. Mr X share it is invoices from Tops with me. I recommend that the general extras fees be refunded”
“The First Draft said at [24] that Mr X had “paid top-up fees” (note, not “disguised top-up fees”) because the Council had “failed to advise” the Nursery that it could not impose mandatory charges for Extras during core hours. That was incorrect for at least three reasons: first, the Guidance recognised that the Nursery could charge whatever it wished during core hours and the Nursery was acting more generously towards parents exercising the FEEE during core hours in making only charges for Extras mandatory and not charging its full commercial rate; second, the Council had not “failed to advise” the Nursery in any respect, since the Provider Agreement accorded with the Guidance (paragraph 25 above); and third, this case had nothing to do with top-up fees in any event since top-up fees are different from charges for Extras”
“69. From the start of the investigation, the LGO has proceeded on the basis that “free must mean free”: paragraph 44(1) above. This was because the investigators seem to have thought that they should act in accordance with their understanding of what Mr King said after the Leicestershire top-up case. Mr King was the former LGO, and the former head of the organisation for which the investigators worked. 70. For reasons explained at paragraph 26-8 above, this was a serious oversimplification. But it led the investigators to a blinkered and incorrect view of the facts and how the Guidance should apply. Their view that the Nursery had in some way acted contrary to the Guidance, whether by way of a “top-up” or “disguised top-up” or in some other way, was pre-determined”
“23 The nursery is entitled to charge for consumables and it is for the nursery, not the Council, to decide how to respond if parents are unable to pay or do not want to pay the charge. 24 The nursery has decided to waive the charge for children who are eligible for the early years pupil premium. As Mr F is not eligible, the nursery is entitled to charge him for consumables. There is no fault by the Council”
“75E. Contrary to these reports, the LGSCO in the current case decided that, so far from charges being a matter for the nursery, the Council had somehow to force the Nursery not to charge. 75F. This inconsistency is contrary to the fundamental rule, derived from the obligation act to rationally and not capriciously, that decision makers, particularly quasi-judicial decision makers such as the LGSCO, should make consistent decisions. Furthermore if the LGSCO does not act consistently, parents, nurseries and local authorities will not know what rules or norms they are expected to be guided by”
"Is it of the essence of democracy that there should be a general justiciable principle of equality? … Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational."
“… Of course persons should be uniformly treated, unless there is some valid reason to treat them differently. But what counts as a valid reason for treating them differently? And, perhaps more important, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves. The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle - that it should always be the judges who have the last word on whether the principle has been observed. In this, as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied.” (see now the current edition of De Smith’s Judicial Review 8th ed (2018) paras 11.061ff)”
“Whatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. Consistency, as Lord Bingham said in the passage relied on by the appellant (para 19 above), is a “generally desirable” objective, but not an absolute rule”
“(2BA) Where the report relates to a failure in, or to provide, a service which it was the function of the authority to provide, those recommendations are recommendations with respect to action which, in the Local Commissioner's opinion, the authority concerned should take— (a) to remedy any injustice sustained by the person affected in consequence of the failure, and (b) to prevent injustice being caused in the future in consequence of a similar failure in, or to provide, a service which it is the function of the authority to provide” was the function of the authority to provide, those recommendations are recommendations with respect to action which, in the Local Commissioner's (a) to remedy any injustice sustained by the person affected in consequence of the failure, and (b) to prevent injustice being caused in the future in consequence of a similar failure in, or to provide, a service which it is the function of the authority to provide”
“If we find fault by the Council in not properly considering whether the additional charges are in line with the guidance, or in delaying and reasonably making that decision, we have to consider the injustice to the complainant. The injustice could be they continued to be charged an additional fee when they should not be. We should recommend the Council reimburse additional fees wrongly paid to the nursery from the date at which the Council could have reasonably intervened to put things right”
“reimburses Mr X for any “general extras” fees he has paid the nursery relating to any period after28 January 2021 ”
“Apart from identifying the authority or authorities concerned, the report shall not, (a) mention the name of any person, or (b) contain any particulars which, in the opinion of the Local Commissioner, are likely to identify any person and can be omitted without impairing the effectiveness of the report, unless, after taking into account the public interest as well as the interests of the complainant (if any) and of other persons, the Local Commissioner considers it necessary to mention the name of that person or to include in the report any such particulars”
“(4) Subject to the provisions of subsection (7) below, the authority concerned shall for a period of three weeks make copies of the report available for inspection by the public without charge at all reasonable hours at one or more of their offices; and any person shall be entitled to take copies of, or extracts from, the report when so made available. (5) Not later than two weeks after the report is received by the authority concerned, the proper officer of the authority shall give public notice, by advertisement in newspapers and such other ways as appear to him appropriate, that the copies of the report will be available as provided by subsections (4) and (4A) subsection (4) above, and shall specify the date, being a date after the giving of the public notice, from which the period of three weeks will begin.”
“if, after taking into account the public interest as well as the interests of the complainant (if any) and of other persons, he considers it appropriate to do so”