Bournemouth, Poole and Christchurch Council, R (on the application of) v Local Government and Social Care Ombudsman

Local authorities participating in the free early education entitlement scheme must ensure that funded childcare is available free of charge. A nursery may offer funded hours only at selected times, but any funded hours it offers cannot be conditional on mandatory charges. Charges for additional goods, services or activities must be voluntary, with practical arrangements made for parents who decline them.

The Local Government Ombudsman must understand and apply the statutory scheme when deciding whether a local authority was guilty of maladministration. It must also consider whether the complainant has a court remedy under section 26(6) of the Local Government Act 1974. Failure to consider that jurisdictional bar is an error of law, but relief may be refused where it is highly likely that reconsideration would produce the same outcome.

The Council challenged a report by the Local Government Ombudsman which upheld a complaint concerning mandatory hourly “general extras” charged by a private nursery during funded early education hours. The Ombudsman found maladministration because the Council had failed to address the mandatory nature of the charges and recommended reimbursement, an apology, changes to the nursery’s pricing policy and communication with other providers.

The Council alleged errors concerning the statutory scheme, top-up fees, predetermination, inconsistency, the Ombudsman’s recommendations and publication. It also sought to amend its grounds to argue that the Ombudsman should have declined to investigate because the complainant had a judicial review remedy.

1. Statutory scheme. The application was dismissed. Under section 7 of the Childcare Act 2006, read with the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014, the Council had to secure qualifying early years provision free of charge. Regulation 4 did not prescribe particular times of day, so a nursery could restrict funded hours to selected periods. But, having chosen to offer funded hours during its core hours, it could not make access conditional on mandatory payments.
2. Charges. The statutory guidance was to be read consistently with the statute. Charges for meals, consumables or additional services could be made only where voluntary. The precise classification of the “general extras” was unnecessary because their mandatory character was sufficient to establish that the nursery was acting outside the scheme and the provider agreement. The term “top-up fees” was not to be given an artificially narrow meaning.
3. Ombudsman review. The Ombudsman has broad discretion in assessing maladministration, but must proceed on a correct understanding of the legal framework. The Ombudsman’s approach was neither biased nor predetermined: it was based on a correct legal interpretation and the Council had been given opportunities to comment on successive draft reports.
4. Section 26(6). The Ombudsman erred by failing to consider whether the complainant had a court remedy. That was a jurisdictional error. Nevertheless, permission to amend was refused and no relief was granted because it was highly likely that the Ombudsman would have concluded that judicial review was not a reasonable alternative for the complainant and would have issued substantially the same report. Section 31 of the Senior Courts Act 1981 therefore applied.
5. Consistency and recommendations. Inconsistency is not unlawful unless there is no rational explanation and the result is conspicuously unfair. The Ombudsman had rational grounds for applying the settled approach stated in an earlier decision, notwithstanding inconsistent reports elsewhere. The recommendations were within the statutory discretion, including recommendations directed to preventing similar future injustice.
6. The challenge to publication was premature. The Ombudsman had not yet decided whether to publish the report under section 31B of the Local Government Act 1974.

First-instance judicial review in the Administrative Court. The Council’s challenge to the Ombudsman’s report was dismissed.