According to the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman), according to the provision of Paragraph 4 of Article 32 of the Kindergarten Act, the fact that a family in which two children are enrolled in kindergarten at the same time and in which the second child is enrolled (or both children are enrolled) in a private kindergarten without a concession is not exempt from paying for the younger child in the full amount of the full price of the care provided public service in the territory of the same municipality is in conflict with the provisions of Articles 14 and 56 of the Constitution of the Republic of Slovenia.

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The Ombudsman dealt with a complaint that referred to the payment of kindergarten fees for a second child from an individual family, when this child is enrolled in a kindergarten without a concession.

The Ombudsman believes that, according to the provision of Paragraph 4 of Article 32 of the Kindergartens Act (ZVrt), kindergarten should be free for a second child even when the child joins a private kindergarten without a concession, or that the cost for the parents should only be the difference between the actual price of a kindergarten without a concession and the full price of the programme in kindergartens that perform a public service in the area of ​​the same municipality. If the above is not guaranteed, in the opinion of the Ombudsman, this represents an infringement of the rights protected by the provisions of Articles 14 and 56 of the Constitution of the Republic of Slovenia, since children in private kindergartens without a concession and without an appropriate legal basis are unjustifiably treated differently from children in public kindergartens.

The Ombudsman received several explanations from the Ministry of Education and Training (MVI), from which, if summarised, it follows that for a correct understanding of the complainant's legal position regarding the exemption from kindergarten fees for his second child, who attends a private kindergarten without a concession, it is essential to distinguish between a private kindergarten that has a concession (granted by the municipality) and a private kindergarten that does not have a concession. The conditions for financing a private kindergarten from the municipal budget and the extent of these funds are determined by the first and second paragraphs of Article 34 of the Kindergartens Act (ZVrt). If the kindergarten fulfils the conditions from Paragraph 1 of Article 34, which are determined by the Ministry for each individual school year separately, in accordance with Paragraph 5 of Article 34, a corresponding decision is also issued to the private kindergarten. The basis for calculating the municipality's obligations for an individual child enrolled in a private kindergarten without a concession is the price of the same type of public kindergarten programme in the municipality area, reduced by the amount that the parents would have paid as the parental payment if the child had been enrolled in a public kindergarten.

According to the MVI, if "another child" is enrolled in a private kindergarten without a concession, the private kindergarten obtains funds for it from the state budget on the basis of Paragraph 6 of Article 34, namely in the amount of the payment that would have been determined for the parents if the child had been enrolled in a kindergarten that performs a public service in the area of ​​the municipality in which the private kindergarten is located. It is clear from the provisions of the Paragraphs 2 and 6 of Article 34 of the ZVrt that the system of financing private kindergartens without a concession, both for providing a municipal subsidy and for covering the exemption from kindergarten fees for younger children from the state budget, determines the basis, which represents the price of the same type of public kindergarten programme in which the child would have been enrolled had he not been enrolled in a private kindergarten.

From the answers of the MVI, it follows that there are some significant differences between a private kindergarten with a concession and a private kindergarten without a concession according to the ZVrt. A private kindergarten without a concession is not obliged to determine the price of the programme, as stipulated in Article 28 of the ZVrt and the Rules on Pricing Programmes in Kindergartens Performing a Public Service. Also, a private kindergarten without a concession is not obliged to account for parents' payments for the kindergarten, as stipulated in Articles 30, 31, and 32 of the ZVrt. In practice, therefore, a situation may arise, such as was also given in the specific case, in which a private kindergarten without a concession for the same type of programme has a higher price than a public kindergarten. When a private kindergarten without a concession offers the same price as a public kindergarten, in accordance with the law, it obtains 15% less funds for the child from the municipal budget than the public one; but if this child is also a second child who is entitled to exemption from kindergarten fees, then the private kindergarten receives funds from the state budget in the amount of payment that the parents would have paid if the child had been enrolled in a public kindergarten. If a private kindergarten without a concession gives a higher price than a public kindergarten, the difference increases and the private kindergarten without a concession has to cover it from other sources. In the specific case of the complaint, the private kindergarten charges the parents the difference up to its own price.

The MVI also explained that it is preparing an amendment to the ZVrt, which would encroach on the current Article 34, since the systemic arrangement of financing private kindergartens has been problematised for several years by the municipalities, which are obliged to provide public funds to private kindergartens, without having any co-decision authority on the establishment of a private kindergarten in their area or the competence to co-decide on the financing of a private kindergarten without a concession. According to the current arrangement, municipalities are obliged to finance a private kindergarten without a concession when it fulfils the conditions from Paragraph 1 of Article 34 of the ZVrt, and the obligation of municipalities to finance becomes questionable if a situation arises in which the public kindergarten has enough space for all the children whose parents want them to attend it. Then, the municipality has to finance vacant places in public kindergartens and at the same time ensure the appropriate amount of funds for private kindergartens without a concession.

The Ombudsman can assume that the problem arises mainly due to the fact that the provision of Paragraph 4 of Article 32 of the ZVrt in its currently valid form was subsequently adopted by the Act on Amendments and Supplements to the Kindergartens Act (ZVrt-G), which entered into force in February 2021, where the solution was clearly not properly integrated into the system. This is already indicated by the justification from the MVI's answer, from which the reference to the provision of Paragraph 6 of Article 34 of the ZVrt (if more than one child from the family is included in the publicly valid programme of a private kindergarten, the parents of younger children are entitled to co-financing from the state budget in the amount of payment that would have been determined for them if the child had been included in a kindergarten that performs a public service in the area of ​​the municipality in which the private kindergarten is located). Such a provision made sense until the ZVrt-G amendment came into force, but in the opinion of the Ombudsman, the diction is meaningless in view of the currently valid content of the ZVrt. According to the provision of Paragraph 4 of Article 32 of the ZVrt, the payment that would be determined for the parents for the second child enrolled in a kindergarten that performs a public service is equal to zero (for parents who have two children enrolled in the kindergarten at the same time, the payment for the younger child exempted). Parents would thus only be entitled to co-financing in this amount, i.e. they would not be entitled to co-financing, which is implemented in any case.

The provision of Paragraph 4 of Article 32 of the ZVrt is, as far as the issue of kindergarten payment for the second child is concerned, newer and more detailed than other provisions of the ZVrt, and in no way defines any exception for children in a private kindergarten without a concession. Nor does it follow from the explanation of the amendment to ZVrt-G that the exemption from payment would only apply to children in public kindergartens or in private kindergartens with a concession.

In the Ombudsman's opinion, the distinction between a public kindergarten/private kindergarten with a concession and a private kindergarten without a concession is not necessarily unfounded. The reasons for this can be understood from the MVI's answer, which states that a private kindergarten without a concession is not obliged to determine the price of the programme, as stipulated in Article 28 of the ZVrt, and further that the obligation of municipalities to finance becomes questionable if a situation arises in which the public kindergarten has enough space for all the children whose parents want them to attend it, and the municipality must finance vacant places in public kindergartens and, at the same time, provide the private kindergarten without a concession with the appropriate amount of funds. In the Ombudsman's opinion, however, it is necessary that the said distinction be explicitly regulated in the law, as it is not yet the case

The Ombudsman recommended to the MVI that it ensure that, pending the possible implementation of a different legal solution, which would of course be consistent with the provision of Article 14 of the Constitution of the Republic of Slovenia, children in private kindergartens without a concession will also receive the right guaranteed by the provision of Paragraph 4 of Article 32 of the ZVrt, i.e. that kindergarten is free for them at least in the amount of the full price of the programme in kindergartens that perform public service in the area of ​​the same municipality.

The MVI rejected the Ombudsman's recommendation and stated, among other things, that the system of parents' payments for kindergarten is determined by Articles 30 and 32 of the ZVrt, whereas Paragraph 4 of Article 32 of the ZVrt stipulates that the exemption of parents from paying for the second and subsequent children is provided by the state budget in the amount of a reduced payments and not the full price of the programme in which the child is enrolled. The payment of the kindergarten fees "for the second and subsequent children of the family" is covered by the state budget, and the remaining difference up to the full price of the programme is provided by the municipality. None of the above-mentioned provisions of the ZVrt stipulates that the state budget would provide exemption from parents' payment for kindergarten fees for younger children in the family in such a way as to finance the entire amount of the programme of a kindergarten which performs a public service.

The Ombudsman does not go into the question of who (the municipality or the state budget) should cover the payment of the kindergarten for a second child who attends a private kindergarten without a concession, but in his opinion the provision of the ZVrt is quite clear, which stipulates that for parents who have two children in kindergarten at the same time, fees for the younger child are waived. Given that a private kindergarten without a concession can set the price of the programme completely arbitrarily, in the opinion of the Ombudsman, the aforementioned provision cannot otherwise be understood in such a way that parents would be entitled to have someone else (the municipality or the state budget) pay the (arbitrary) price of the kindergarten without a concession, but in the Ombudsman's opinion, they should definitely be entitled to pay for a kindergarten without a concession for a second child only in the amount of the difference between the price of a kindergarten without a concession and the full price of a kindergarten that performs a public service. With this, the family of such (second) child would receive the same rights from public funds as the family of (a second) child who attends a kindergarten that performs a public service. 19.1-11/2024