The cost of free childcare: R (on the application of Bournemouth, Poole and Christchurch Council) v Local Government and Social Care Ombudsman [2025] EWHC 224 (Admin)

In this article, Siân McGibbon summarises an important recent High Court judgment considering the lawfulness of imposing mandatory “top-up” charges on parents accessing free early years education.

The Free Early Education Entitlement (“FEEE”) scheme is a government initiative in England designed to provide funded childcare for eligible children to support early years education. Under the scheme, local authorities receive funding from the government to ensure that qualifying two to four-year-olds can access a number of free childcare hours per week at registered nurseries or childminders. The objective is to make early education more accessible, particularly for working parents and those from lower-income backgrounds.

A parent Mr. X (an interested party who played no part in the proceedings) had enrolled his daughter at the nursery under the FEEE scheme, expecting the service to be entirely free as required by the statutory framework. However, he was charged additional fees for hours covered by the scheme. Upon lodging a complaint with his local authority Bournemouth, Christchurch, and Poole Council, he was informed that the charges were lawful. Dissatisfied with this response, Mr. X escalated the matter to the Ombudsman, who concluded that the Nursery had unlawfully imposed mandatory fees on parents for FEEE-funded hours. The Ombudsman’s report found that the Council’s response amounted to maladministration and recommended that the Council reimburse Mr. X for the fees he had paid; issue an apology; and take appropriate measures to ensure compliance by the Nursery and other FEEE providers.

The Council sought judicial review of the decision by the Ombudsman, inter alia on the grounds that the Ombudsman had misinterpreted the statutory framework governing FEEE and as such the decision was based on an error of law.

Issues in Dispute

The central issue in dispute was whether nurseries participating in the FEEE scheme were permitted to impose mandatory charges on parents accessing FEEE-funded hours. The Council argued that the charges were not unlawful ‘top-up’ fees, but rather permissible charges for additional services or consumables (§§62–66).

The Council further challenged the Ombudsman’s conclusions on the basis that the statutory framework did not impose a duty on local authorities to intervene in disputes between parents and nurseries over additional charges; the Ombudsman had erred in holding the Council responsible for the actions of the nursery (§§70-71). In any event, the Ombudsman had failed to properly consider whether Mr. X had an alternative legal remedy, such as judicial review proceedings against the Council or a private claim against the nursery (§§86–94).

During the course of the proceedings, the Ombudsman conceded that she had taken an inconsistent approach to similar complaints. The Council contended that this inconsistency rendered the decision challenged irrational and unlawful (§§120-127).

Finally, the Council challenged the proportionality and appropriateness of the Ombudsman’s recommendations, particularly the requirement for it to reimburse Mr. X and amend its oversight of nurseries in its jurisdiction. It argued that these recommendations exceeded the Ombudsman’s powers and placed an undue burden on the Council (§§132–141). The court, however, upheld the recommendations, emphasizing that they were well within the Ombudsman’s remit to remedy injustice and improve future compliance with the FEEE scheme.

Decision of the Court

David Lock KC, sitting as deputy judge of the High Court dismissed the Council’s judicial review challenge and upheld the Ombudsman’s report. The judge agreed with the Ombudsman’s interpretation of the statutory framework, to the effect that the FEEE scheme mandated local authorities to ensure that parents could access their entitled hours free of charge. Any imposition of mandatory additional charges was inconsistent with this requirement (§§53–61). The court also rejected the Council’s argument that the Ombudsman had mischaracterised the nature of the “general extras” charge imposed by the nursery; the defining feature was the mandatory nature of the fees, not their label or specific purpose (§§62–67). The guidance had to be interpreted in a way consistent with the legal framework, meaning any additional charge levied on parents had to be voluntary.

The court further held that the Council bore a clear responsibility to enforce compliance with the statutory scheme. By failing to properly engage with Mr. X’s complaint, the Council permitted the nursery to continue charging parents for FEEE-funded hours, amounting to maladministration (§§70–71).

The Ombudsman’s jurisdiction to investigate this matter was also affirmed. While the court acknowledged that the Ombudsman had not explicitly considered whether Mr. X had an alternative legal remedy, it concluded that this omission did not materially affect the lawfulness of the report (§§86–94).

On the question of consistency, the court recognised that the Ombudsman had made inconsistent decisions in prior cases. However, it found that such inconsistencies did not invalidate the present report, as the legal framework had been correctly applied in this instance (§§120–127). A failure to apply legal principles consistently does not automatically render a decision unlawful, provided the current decision adheres to the correct statutory interpretation.

The court also upheld the Ombudsman’s recommendations. The requirement for the Council to reimburse Mr. X for fees paid from the date of his complaint was reasonable (§§132–135), and the recommendation for the Council to request changes to the nursery’s pricing policy was appropriately framed and did not impose an excessive burden (§§136–139). Finally, the court endorsed the recommendation that the Council should issue guidance to other FEEE providers in its jurisdiction, recognising the public interest in ensuring consistent compliance with the statutory scheme (§§140–141).

Comment

Though the judge indicates that the judgment "should only be taken as expressing view on the lawfulness of this particular LGO report based on the facts of this particular case", the ruling nevertheless provides some clarity on the obligations of providers and local authorities under the FEEE statutory scheme. The practice of charging ‘top up’ fees to parents for hours of childcare covered under FEEE is unlawful, and local authorities must take an active role in enforcing compliance with the FEEE framework and cannot merely act as intermediaries between central government funding and private nurseries. The discussion of inconsistency in the Ombudsman’s decision-making, at §§116-127 of the judgment, will also be of particular interest to public lawyers.

This article was written by Siân McGibbon.