Summary: Mrs X complained the Council awarded money to her child’s nursery, but it is not adequate to fund the full hours of support for her child’s disability and special educational needs. We did not find the Council at fault.

The complaint

1. Mrs X complains the Council is not adequately funding the full hours of support her child needs to attend nursery full time. She says this has caused her significant frustration and inconvenience. She also says due to their disabilities and medical needs, her child is not accessing education as they should due to the limitations in the Council's funding.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome (Local Government Act 1974, section 34(3), as amended).
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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How I considered this complaint

4. I discussed the complaint with Mrs X and considered her views and information she provided.
5. I made enquiries of the Council and considered its written responses and information it provided, as well as relevant law, policy and guidance.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Special education needs inclusion fund (SENIF)

7. Local authorities are required to have a special educational needs inclusion fund (SENIF). This is intended for children without an Education, Health and Care Plan. A local authority’s SENIF is for supporting children below compulsory school age with SEN and who are eligible for the entitlements. SENIF funding should be targeted at supporting children with low-level or emerging SEN.

Free Early Education Entitlement (FEEE)

8. All children aged 9 months to 4 years who meet certain eligibility criteria may take up a free childcare place. This is known as the Free Early Education Entitlement (FEEE). All 3 and 4 year olds are entitled to 15 hours, regardless of income. Working parents are eligible for 30 hours, provided neither individual parent earns above a certain financial threshold. These hours are generally based on 38 weeks per year during term time, but can be spread across the year.

Background

9. Mrs X’s child (Y) is nursery aged and receives Disability Living Allowance (DLA). Y is disabled with complex needs. Mrs X is only eligible for the 15 FEEE hours, not 30. At the time of events in the complaint, Y did not have an Education, Health and Care (EHC) Plan.

What happened – summary of key relevant events

10. Y initially attended nursery 20 hours a week, 51 weeks a year without 1:1 support. In early 2025, a caseworker from Council Early Years said Y needed full 1:1 support. The nursery applied for additional SENIF Council funding.
11. The Council’s Panel met and all agreed to award the top and maximum banding amount to Y. The Council sent its decision to the nursery stating it would pay it a total of £6,118 over the next year.
12. The nursery contacted the Council with concerns the amount awarded fell significantly short of what it needed to provide 20 hours 1:1 support to Y. It calculated the award would only allow around 8 hours. It recognised funding was intended to assist with costs rather than fully cover the expense of a support staff member and it needed to subsidise some of the costs, but the amount did not cover even half the hours Y attended.
13. The Council said SENIF funding was based on FEEE funded hours (for Y a maximum of 15 hours per week for 38 weeks per year. This was consistent with the term time nature of education funding. If Y was eligible for 30 it would be double this). The Panel had allocated the highest band amount it could, and no additional funding could be made available.
14. Mrs X formally complained. She said the funding awarded meant she had to reduce Y’s hours and they could not attend two full time days anymore. Y could only attend two part time days which added stress and inconvenience. She wanted Y to be able to attend more but cannot with the limited funding available. Mrs X says they are not eligible for the 30 hours (which would likely cover what they wanted) due to financial thresholds but that is unrelated to Y’s disability needs. If they were on lower income, they could access the support Y needed to thrive. Mrs X felt this was unfair.
15. In its complaint response, the Council maintained its position that it had awarded the maximum it could allocate. It was satisfied it had acted appropriately and fairly in allocating the SENIF funding to Y. Mrs X then complained to us.
16. Since Mrs X’s complaint to us, she has applied for an Education, Health and Care (EHC) needs assessment for Y. At the time of writing, the Council has agreed to issue an EHC Plan for Y. This is still ongoing.

The Council’s response to my enquiries

17. I looked at the Council’s Terms of Reference (TOR) document which gave guidance to SEND Panel members about decision making for SENIF requests. This included:
• “Under the national high needs funding system, mainstream schools are expected to meet up to the first £6,000 of additional support costs for pupils with high needs from their core school budget share. When the cost of additional support for any individual pupil exceeds £6000 additional top-up funding is made available by the Local Authority to put appropriate provision in place. This is called top-up funding. Top-up funding also applies to early years and private and voluntary institution nurseries although these settings do not have additional support funding in their core budgets, therefore the top-up funding provides the full funding required”.
18. On plain reading, this seemed to imply the full cost of the nursery placement should be funded. I asked the Council to clarify this.
19. The Council confirmed funding is allocated within set thresholds and does not directly correspond to a set number of hours a child needs. It is a contribution towards the additional support required, not to represent the full cost of provision to meet all associated needs. It said the TOR is not intended to replace the statutory guidance and it has removed it from its website. It would issue updated guidance to provide further clarity on this point.
20. I have also seen some internal Council notes. This said the funding into the Early Years block that the Council receives is based on the hours for each child settings can claim i.e. FEEE entitlement hours, not actual hours of attendance. This means the Council is unable to provide SENIF funding for hours above the FEEE.

Analysis

21. I recognise Mrs X is of the view that it is unfair her family income is preventing her from accessing additional free hours for Y’s disability needs. However, this is a national policy set by the Government which is not something we can make a finding on or change. This means my focus is on the Council’s actions and if it has acted in line with its policy and guidance.
22. The Council has explained the limitations in the set amounts it can award for SENIF funding and its framework. It is applied in line with a child’s FEEE hours, so it cannot fund above the number of hours that Y is entitled to.
23. On further reflection, I also note the TOR at Paragraph 17 can be read to say that all (the ‘full’) top up funding for Early Years SEND support comes from the high needs block, not from core funding (as Early Years does not get the same delegated SEN funding that schools do).
24. I am not holding the Council to my initial interpretation of its TOR. I am satisfied from evidence seen and the Council’s response, this was not the intention to provide full costs. The current framework is based on eligibility of FEEE hours which is an operational decision.
25. Overall, on balance, the Council has made a decision it was entitled to (and has allocated the full amount it can to Y) based on the parameters of its funding model. While the TOR could have been clearer, in my view, this does not warrant a formal finding of fault, and I am satisfied with the action the Council will take to ensure clarity about this in future.
26. In addition, SENIF funding guidance (Paragraph 7) says the funding is intended for emerging or low-level needs, and Y’s needs go above and beyond this description as they need full time 1:1 support.
27. While I appreciate Mrs X’s concerns, she has now pursued an EHC Plan. In these circumstances, that is the best route likely to secure additional resources and funding needed for Y’s special educational needs.

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Decision

28. I do not find fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman