Derby City Council (18 017 903)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 10 Jul 2020

The Ombudsman's final decision:

Summary: Ms B complains the Council did not properly deal with her son C’s childcare. The Council was at fault because it did not secure C’s entitlement to childcare, it did not respond to a request for assistance by C’s school in relation to the funding gap, did not provide clear advice to the school, did not provide guidance about funding should be used in support of children with SEN (Special Educational Needs), did not maintain an SEN Inclusion Fund and took too long to recognise and correct these problems. C missed early years provision he was entitled to and Ms B lost income as a result of having to work less. The Council has changed how it provides funding for children with SEN, apologised to Ms B and agreed to pay her £1500 for the loss of earnings and £500 for the distress caused. This is a suitable remedy.

The complaint

  1. The Complainant, whom I shall refer to as Ms B, complains the Council did not properly deal with her son C’s childcare because he did not receive the extended entitlement of 30 hours per week provision between January and April 2019 due to his needs.
  2. Ms B says C has been discriminated against and has missed out on provision he was entitled to, and she has suffered financial loss as a result of having to reduce her working hours.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I spoke to Ms B and considered the details of her complaint as well as the Council’s response. I reviewed documents sent by the Council and Ms B.
  2. Ms B 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

Legislation and Guidance

  1. The Childcare Act 2016 creates a duty to secure childcare free of charge for qualifying children of working parents for, or for a period equivalent to, 30 hours over 38 weeks of the year.
  2. Part four of the Childcare (Early Years Provision Free of Charge) (Extended Entitlement) Regulations 2016, “The Regulations”, set out that local authorities must secure the early years provision free of charge, the type and amount of free childcare and how local authorities should discharge their duty to secure free childcare.
  3. The Early education and childcare Statutory guidance for local authorities June 2018, “The Guidance”, sets out outcomes, legal duties and what councils should do to fulfil their statutory responsibilities.
  4. Councils are required to secure an additional 570 free hours a year for qualifying children.

Early years entitlements: operational guidance for local authorities and providers

  1. Councils and providers must ensure that they meet their duties under the Equality Act 2012 and take full account of the SEND Code of Practice when securing and providing free places.
  2. Councils are required to set up a local SEN Inclusion Fund (SENIF) to support providers to secure better outcomes for children with SEN. These are for all three and four year olds with SEN who are taking up the free entitlements, regardless of the number of hours taken. These funds are intended to support local authorities to work with providers to address the needs of individual children with SEN.

Special Educational Needs and Disability (SEND) code of practice

  1. Local authorities must ensure that all providers delivering funded early education places meet the needs of children with SEN and disabled children. In order to do this, local authorities should make sure funding arrangements for early education reflect the need to provide suitable support for these children.

What happened

  1. C is visually impaired and suffers from anxiety and emotional distress. Because of this he requires greater support and observation.
  2. C went to nursery at School A. He received the universal 15 hours per week free childcare. C then turned three and became eligible for the extended 30 hours per week childcare.
  3. School A had completed a risk assessment for C. It concluded it was able to meet C’s needs. School A contacted the Council and asked it to help. School A said it did not have sufficient resources to provide all the necessary staffing. Specific staff working with C started at 8:30am and C started at 7:30am. School A said it needed funding for the additional hour.
  4. The Council had made changes to its early years funding arrangements meaning School A was unable to access the early years inclusion fund. School A and the Council disagreed over who should provide the additional resources. The Council said School A received more funding than others to provide for children with SEND. A Service Level Agreement (SLA) about its funding had lapsed in 2017.
  5. Ms B complained to the Council. The Council said it was School A’s responsibility to provide the extended entitlement.
  6. Ms B complained to LGO. The Council sent a second response to Ms B. The Council said the admission policy set by School A covered delivery of any extended entitlement.
  7. In July 2019, the Council held a meeting with School A. The Council sent a third response to Ms B after the meeting. The Council agreed there were some problems but continued to state School A should have funded C’s entitlement.


  1. C was unable to access the extended entitlement of 30 hours per week between January and April 2019, to which he was eligible.
  2. In its third response letter to Ms B, the Council agreed:
    • It did not deal adequately with School A’s request for help.
    • There was no SLA after the expiry of the previous document in 2017.
    • There was a lack of clarity and miscommunication.
    • It did not have an inclusion fund accessible by all settings.
    • There was a funding gap.
  3. The Council did not discharge its duty under the Regulations because it did not make arrangements for C to receive the extended entitlement to which he was eligible. This is fault by the Council. C missed out on his extended entitlement between January and April 2019. Ms B had to reduce her working hours during this period.
  4. The funding gap created by the Council meant that Children with SEN who attended maintained providers were disadvantaged. The Council has provided evidence to show it has changed how it provides funding to support children with SEN to address this problem from March 2020 onwards.
  5. During my investigation the Council has accepted it was at fault and written to Ms B stating that the dispute was over the funding arrangement. It has apologised to Ms B and offered to pay her £1500 in respect of her loss of earnings and £500 for distress caused to her. Ms B agrees this is a suitable remedy.

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Final decision

  1. I have found fault by the Council. However, there is no outstanding injustice to Ms B because the Council has changed its funding arrangements, apologised to Miss B and offered a financial payment. This is a suitable remedy. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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