Summary: the Council failed to check arrangements were in place at a mainstream nursery to deliver special educational provision for Mr F’s daughter G. G did not receive provision for the 15 hours a week she attended the nursery between June 2022 and December 2023. We find fault with the way the Council amended G’s Education, Health and Care (EHC) Plan in anticipation of her transfer to school. Due to a lack of capacity, the Council then applied a blanket policy and failed to consider G’s individual circumstances which delayed her full-time attendance at a special nursery. We have recommended a remedy for the injustice caused.

The complaint

1. Mr F complains the Council failed to secure special educational provision in his daughter G’s Education, Health and Care (EHC) plan when she attended a mainstream nursery.
2. Mr F complains the Council failed to offer a suitable school for G which meant he had no choice but to keep her in nursery for another year.

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The Ombudsman’s role and powers

3. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. Once 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(i), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered information provided by Mr F and the Council. I invited Mr F and the Council to comment on my draft decision.

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What I found

9. Mr F’s daughter, G, has an Education, Health and Care (EHC) Plan maintained by the Council. The Council issued G’s first Plan on 21 June 2022. The Plan said G would attend a mainstream nursery for 15 hours a week. The Council issued a further Plan on 8 September 2022 which said G would also attend a special nursery for an additional 15 hours a week from January 2023.
10. Mr F wanted G to attend a resource base for children with autism at a mainstream primary school when she started school in September 2023. The Council issued a Plan on 14 February 2023 which said G would attend a mainstream primary school from September 2023. Although the Plan specified a type of school, it did not name Mr F’s preferred school where the resource base he wanted G to attend was. The Council said it had a large number of children to place and was working with schools to try to meet parents’ preferences.
11. The Council was unable to offer G a place in the resource base and Mr F reluctantly decided she should remain in nursery for another year. The Council issued a Plan on 27 July 2023 which said G would attend a mainstream nursery for 15 hours a week and special nursery for 15 hours a week until July 2024.
12. Mr F was unhappy with the Council’s offer. If G could not start school, he wanted her to attend the special nursery full-time. Following Mr F’s complaint, the Council issued a further Plan which said G would attend the special nursery for 30 hours a week from January 2024.

Mr F’s complaint to the Council

13. Mr F complained to the Council on 29 June 2023. He complained the Council had not offered a suitable school and he no option other than keeping G in nursery for another year. He complained about his dealings with the Council. He said G was not receiving all the provision in her Plan.
14. The Council responded at the first stage of its complaints process on 30 October 2023. The Council said it had fulfilled its statutory duty when it issued G’s Plan on 14 February 2023. The Council did not uphold Mr F’s complaint.
15. The Council said it had made enquiries and found the independent nursery had not delivered the Speech and Language Therapy and Occupational Therapy provision in G’s Plan. The Council said it would ensure the nursery made the necessary arrangements. The Council ‘partially upheld’ Mr F’s complaint because it said it had not been aware of the problem.
16. Unhappy with the Council’s response, Mr F asked the Council to respond at the second stage of its complaints process. He said the delay finding a school for G had delayed his appeal to the Tribunal. He pointed out it was the Council’s duty to secure the special educational provision in G’s Plan and said he was unhappy the Council had only ‘partially upheld’ his complaint.
17. The Council responded on 20 November 2023. The Council said it was satisfied it had addressed Mr F’s complaints at the first stage of its complaints process.
18. Unhappy with the outcome, Mr F complained to the Ombudsman.

Education, Health and Care Plans: the law

19. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
20. The procedures for assessing a child’s special educational needs and issuing, and amending, an Education, Health and Care Plan are set out in legislation and Government guidance.
21. A Plan should name the school, or type of school, the child will attend.
22. The Council must review and amend, where necessary, a child’s Plan by 15 February in the calendar year of the child's transfer from nursery to school.
23. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.
24. Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child.
25. The Courts have made it clear the Council’s duty to arrange provision is owed personally to the child and cannot be delegated.
26. We recommend councils check the provision is in place and record they have done so at least:
• when they issue a new or significantly amended Plan;
• at statutory reviews; and
• when concerns are raised that provision is not in place.
27. The Ombudsman’s role is to check the Council followed the relevant law, regulations and guidance when issuing Plans, and arranged for provision to be made. We cannot make decisions about a child’s special educational provision or the school they attend if there is a disagreement. Only the SEND Tribunal can do this.

Arranging the provision in G’s Plan at the mainstream nursery

28. Mr F complained G had not received all the special educational provision in her EHC Plan at the mainstream nursery.
29. The Plan required staff working with G to receive specialist training from a Speech and Language Therapist and an Occupational Therapist to support G with communication, interaction, regulation, fine and gross motor skills.
30. The staff at the mainstream nursery did not receive the training.
31. The Council acknowledged G had not received all the Speech and Language Therapy (SALT) and Occupational Therapy (OT) in her EHC Plan at the mainstream nursery as a result. G attended the mainstream nursery for 15 hours a week from June 2022 until the end of December 2023.
32. The Council said G received provision at the special nursery, but acknowledged the missing provision at the mainstream nursery could have had an impact. The Council accepted it was responsible and offered a payment of £300 to acknowledge the missed provision.
33. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
34. I am pleased the Council recognises it was at fault and welcome the Council’s offer to provide a remedy. However, I do not consider the payment of £300 adequately reflects the injustice caused. My recommendations are at the end of this statement.

Finding a suitable school for G

35. G was due to start school in September 2023. The deadline for amending her EHC Plan was 15 February 2023.
36. Mr F wanted G to attend a resource base at a particular school. He wanted the Council to name the school in G’s EHC Plan.
37. The Council issued a final plan on 14 February which specified the type of school Mr F wanted, but not the specific school he requested.
38. The Council met the statutory deadline and issued a final Plan which gave G’s parents their right of appeal to the Tribunal.
39. There is nothing unlawful about the Council’s approach, but it is not fair.
40. While it allows the Council to say it met the statutory deadline, it does not appear to serve any other purpose. It does not help Mr F or G. For this reason, I find the Council’s actions – issuing a Plan which specifies a type of education when the parent has requested a specific school because the Council has been unable to consider the parent’s request on time – to be fault.
41. Mr F could have appealed to the Tribunal and asked the Tribunal to name his preferred school in G’s Plan. But I do not consider this legitimises the Council’s actions. It should not have been necessary, and I am sure the Council would not have welcomed appeals from all parents in Mr F’s position.
42. The Council said that it had been unable to allocate places in the resource bases by the 15 February deadline. This, too, is fault. Correspondence shows the Council had yet to allocate G, and other children, a school place by late May.
43. The 15 February deadline exists to allow time for an appeal to the SEND Tribunal before the start of term the following September if parents and councils cannot reach an agreement.
44. By issuing a Plan, but not allocating school places until long after the 15 February deadline, the Council has frustrated this intention.
45. I do not underestimate the challenges the Council faces matching children with school places, particularly where demand exceeds the number of places available. I appreciate, too, the Council was trying to make the best use of limited resources. However, it should have done so before the 15 February deadline.
46. By the time the Council allocated places, there was very little time left for parents to appeal to the SEND Tribunal before the start of term. It is unlikely the Tribunal would be able to hear cases, and the Council implement the Tribunal’s decisions, before the start of term. So, in cases where parents appeal to the Tribunal, the Council’s actions caused further delays. This was the case for Mr F.
47. Mr F appealed sections B and F of G’s Plan. The Council says they reached an agreement and settled Mr F’s appeal in February 2024. This was one year after the Council should have issued the Plan, and more than one term after any appeal should have been concluded. This delay is an injustice.
48. My recommendations to remedy this injustice are at the end of this statement.

The decision to defer G’s admission to school

49. G did not start school in September 2023. Mr F says he reluctantly decided G should remain in nursery. He says he felt he had no option.
50. G is a ‘summer born chid’ and although she is entitled to a school place from September 2023, she does not have to start school until September 2024 if her parents choose.
51. The Council was unable to offer G a place at her parents’ preferred school for September 2023. The Council offered places at schools further from G’s home. Correspondence shows G’s parents explained the difficulties they would face if G went to one of the more distant schools the Council suggested. G’s parents suggested they request deferred entry to reception so G could start at their preferred school, or their second-choice school, in September 2024. They asked to discuss the matter with the Council.
52. Government guidance says councils should discuss requests for deferred entry to reception from parents of children with EHC Plans.
53. The Council did not discuss the matter with G’s parents. The Council thanked them for their “request” to defer G’s entry to reception, submitted it to a panel for consideration and approved it within a single working day.
54. G’s parents then asked for confirmation that G would have a place at their preferred school in September 2024. They also asked whether there was a place available at their second-choice school for September 2023 before they decided to defer G’s entry to school.
55. The Council explained that it could not guarantee G would have a place at her parents’ preferred school in September 2024. It said it had allocated all the available places at their second-preference school to other children when they said they wanted to defer G’s entry to school.
56. The only places the Council could offer in resource bases were at schools over three and five miles from G’s home.
57. G’s parents complain they then had no choice but to defer her starting school until September 2024 and keep her in nursery for another year.
58. I cannot say G’s parents had no choice. There were other options available. And while I acknowledge the other options had problems, it is beyond my authority and expertise to evaluate them. That would be a job for the SEND Tribunal.
59. Nevertheless, I find fault with the way the Council handled the matter.
60. G’s parents did not, in fact, request deferred entry to reception. They suggested they make the request and asked to discuss the matter. The Council did not discuss the matter with them. This is fault. The Council went ahead and approved a request G’s parents had not, in fact, made. This, too, is fault. The Council then allocated all the available places to other children.
61. G’s parents did, ultimately, decide to defer G’s entry to reception.
62. Deferring G’s entry to school is an important decision which has consequences for G and her parents. It is a decision for G’s parents alone to make.
63. Their decision clearly depended on the availability of places in resource bases at local schools. There may have been a place for G at their second-choice school.
64. I find the Council failed to provide G’s parents with all the information they needed to make an informed decision. This is fault.
65. There is no suggestion G was not ready for school and needed to remain in nursery for another year. It clearly helped the Council having one less child to place in its oversubscribed resource provision if G did not start school in September 2023. The Council’s actions suggest it prioritised its own needs over those of G. This is fault.
66. The impact on G and her parents is difficult to assess. G continued to receive 30 hours of nursery provision per week, and the Council has agreed she can start school in reception in September 2024. She will not miss out on any education.
67. Mr F complains that unlike her older sibling, G will not be able to use breakfast and after-school clubs. Instead, he will have to pay for wrap-around care at the nursery which is considerably more expensive.
68. I do not dismiss Mr F’s concerns, but they are not matters I can take into consideration. As I explained above, I cannot say G’s parents had no choice. There were other options available, and it is beyond my authority and expertise to evaluate them.

Specialist nursery provision 2023 - 2024

69. Once the Council confirmed it could not offer G a place at either their first or second choice resource bases, G’s parents said they wanted her to attend the special nursery full-time.
70. The Council said that it only funded places at the special nursery for 15 hours a week unless there were exceptional circumstances such as safeguarding concerns. The Council confirmed G would also be eligible to attend the mainstream nursery for 15 hours a week until she started school.
71. G’s parents challenged the Council’s decision.
72. The Council subsequently changed its mind and agreed G could attend the special nursery full-time from January 2024.
73. It appears the Council applied a blanket policy without considering whether to exercise its discretion. The Council failed to consider G’s needs. This is fault.
74. In response to my draft decision, the Council explained that it had considered G’s individual needs when it ensured she could continue to attend mainstream nursery in addition to the special nursery.
75. The Council explained that all children who attend the special nursery would benefit from attending full-time attendance, but resources are limited. By offering 15-hour slots the nursery can accommodate more children throughout the week.
76. While I acknowledge the challenges the Council faces, the Council based its original decision on the resources available, not G’s needs. The Council applied a blanket policy to make the most of the limited resources available. This was fault.
77. If the Council had considered G’s needs, rather than the resources available, it is possible she could have started full-time at the special nursery sooner in September 2023.

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Agreed action

78. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of G and her parents, we may recommend the Council makes a symbolic payment.
79. Fault by the Council has caused G and her parents injustice:
• issuing a Plan which specified a type of education when they requested a specific school because the Council has been unable to consider their request on time caused delay, uncertainty and frustration;
• failing to discuss their suggestion to defer G’s entry to reception, and making a decision on a request they had not in fact made, caused further delay during which the Council allocated all the available places at their second-choice school;
• applying a blanket policy and failing to consider G’s individual circumstances delayed her full-time attendance at the special nursery by a term; and
• failing to check arrangements were in place at the mainstream nursery to train staff to deliver SALT and OT, which were central to G’s EHC Plan, meant she did not receive provision for the 15 hours a week she attended between June 2022 and December 2023.
80. And while I cannot say G’s parents had no choice but to keep her in nursery for another year, the evidence shows the Council let them down. It prioritised its own needs over G’s needs, both in the way it used its power to issue a Plan which named a type of school simply to meet a deadline, and in the way it responded to the possibility of deferring her entry to reception.
81. I recommended the Council:
• apologises to G’s parents for these faults;
• offers a symbolic payment of £1,500 in addition to the payment the Council has already offered to acknowledge the impact of the missed provision while G attended the mainstream nursery and the delay considering their request for a full-time place at the special nursery.
• offers a symbolic payment of £300 to recognise the impact of the delay on their right of appeal to the Tribunal by issuing a Plan specifying a type of school before considering their request for a specific school.
82. We can also make recommendations to ensure similar faults do not happen in the future.
83. The Council should explain what action it will take to avoid issuing EHC Plans which specify a type of education when parents have requested a specific school at phase transfer. The Council has already begun to address the problem, but says further action is needed.
84. The Council should send the apology and payment within six weeks of my final decision, and explain the actions it will take to avoid similar problems in the future within three months.
85. The Council should provide us with evidence it has complied with the above actions.
86. The Council accepted my recommendations.

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Final decision

87. I have completed my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman