Summary: Mrs M complains the Council delayed its assessment of her son’s Education, Health and Care needs. It also gave confusing advice and delayed funding 1:1 care her son’s nursery said he needed. And it did not copy her into all communications, as she had requested. We uphold the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant, Mrs M, complains West Northamptonshire Council (the Council):
• delayed its assessment of her son’s (X) Education, Health and Care (EHC) needs;
• delayed funding for X to receive 30 hours 1:1 care at his nursery. This had been agreed before X had his EHC Plan. But the Council only agreed to pay it from after the Plan was finalised;
• delayed making the payment for the 1:1 care to the nursery, after giving it inconsistent and contradictory advice about what it needed to do. This delayed the start of the 1:1 provision by a term;
• has not guaranteed it will provide the 1:1 funding for the rest of the school year;
• did not agree to Mrs M’s request that it copied her into all correspondence and communications regarding X’s EHC Plan and any updates to it.

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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 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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. 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(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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What I have and have not investigated

8. Mrs M complained to the Ombudsman in December 2023. This was over 12 months after Mr and Mrs M’s August 2022 request for an EHC needs assessment. But it was only from January 2023 (with reference to the statutory timeframe) that the assessment was delayed. So Mrs M came to the Ombudsman within a year of the start of the assessment being delayed. In those circumstances my decision is her complaint is not late. And I have considered the complaint back to the date of Mrs and Mr M’s request for an assessment.
9. We cannot look at the contents of an EHC Plan, because those are matters the SEND Tribunal can consider. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs M;
• made enquiries of the Council and considered its response;
• spoken to Mrs M;
• sent my draft decision to Mrs M and the Council and considered their responses.

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What I found

Legal and administrative background

11. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Timescales and process for EHC assessment

12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

The Code says local authorities must ensure children, their parents and young people are involved in discussions and decisions about their individual support. And that they are fully involved in needs assessments from the start, and are provided with information, advice and support.

Special educational needs funding across council boundaries

15/30 hours funded childcare

13. Parents of pre-school aged children are entitled to 15 or 30 hours means-tested funded childcare. Within the rules for this funded childcare is a requirement for local authorities to have a special educational needs inclusion fund (SENIF). This is intended for children without an EHC Plan.
14. Government guidance says:

“[a]s with other elements of early years funding, SENIFs should apply to children attending settings in the relevant local authority area, regardless of where they live”.

EHC Plans

15. For EHC needs assessments the home local authority (where the child normally lives) should decide whether to assess the child or young person and decide whether an EHC Plan is required. Funding of the provision in the EHC Plan is from the home local authority.

The Council’s Early Years Targeted SEND Funding

16. The Council’s Targeted SEND Funding policy says:
• The funding is available to children who do not have an EHC Plan.
• The funding is based on the setting’s location, so all children attending can apply, regardless of their home address.
• Children who attend a setting out of the Council’s area need to apply directly to the local authority where the setting is.

What happened

Background

17. X is a nursery aged child. In 2022, a paediatric assessment noted X’s social, expressive, interaction and sensory processing issues.
18. In the summer of 2022 X began attending a new nursery, in a different county from the one where they lived.
19. After a few weeks the nursery informed Mrs and Mr M that X needed 1:1 support. Mrs and Mr M spoke to the Council. It advised X would not be eligible for funding from it for 1:1 support.

The delay in the EHC needs assessment

20. In mid-August 2022 Mrs M applied to the Council for an EHC needs assessment.
21. At the end of September the Council decided to carry out an EHC needs assessment for X. It sent off requests for advice from professionals.
22. The Council was awaiting a report from an NHS speech and language therapist. In January 2023 the NHS advised the Council it could not prioritise providing the assessment report.
23. In early February, the Council was still awaiting its educational psychology service to carry out an assessment. That service provided its report at the end of February.
24. In mid-April the Council’s EHC Case Worker emailed Mrs and Mr M apologising for the delay. They explained they had been unwell, but their colleague had written a draft EHC Plan, that was awaiting review. The Council issued a draft Plan a few days later.
25. Mrs and Mr M asked for some extra time to comment on the draft EHC Plan.
26. The Council issued its first finalised EHC Plan at the end of June. It amended the Plan at the end of July. Mrs and Mr M have appealed the contents of this plan; principally because it did not contain 30 hours 1:1 support for X.

The funding for the 30 hours 1:1 care before the EHC Plan

27. In October 2022 X began attending a new nursery.
28. In mid-November 2022 X’s SEND Caseworker advised Mrs and Mr M it was best to see how things went at the new nursery. And if the nursery raised questions about funding, then to get in touch. The Council’s finance team had advised it could look to support the nursery if needed but it would need to better understand its requirements.
29. At the end of January 2023 the Council’s SEND Caseworker emailed X’s nursery to advise an application for higher needs funding would need to be made to the Council. Mrs M questioned that and referred to the Council’s policy (see paragraph 15). The officer then apologised and advised that an application for early years funding should be to the host council. Around a week later an officer followed this up with a telephone call to the Special Educational Needs Coordinator at the nursery.
30. In February the SEND Caseworker repeated her advice that the Council would need more information about the funding the nursery required.
31. In May, the nursery telephoned the Council about the ongoing confusion regarding funding. It noted it had made an application for extra funding to the host council but it had referred them back to the Council. The Council’s officer advised that its finance team had said it needed more information.

The delayed funding of 1:1 care after the Council issued a final EHC Plan

32. In July the Council agreed to fund 1:1 support for X at the nursery, from the June start date of his EHC Plan.
33. Later in July Mrs and Mr M attended a meeting at the nursery. X’s EHC Caseworker attended. Mrs M says her understanding on the outcome of the meeting was:
• the nursery needed to send the Council some information;
• the Council would then set up the nursery on its system;
• the nursery could then submit an invoice, allowing the Council to decide if the nursery had supplied the correct information.
34. The Council’s record of that meeting notes:
• there was ongoing confusion regarding funding;
• the nursery was struggling to seek extra funds;
• the officer had emailed the nursery with some information from its finance team about how they could register with the Council and submit invoices.
35. In early September the Council and the nursery were in contact about how the nursery should send the Council information (including whether it needed to be via the Council’s ‘portal’). Over the course of an email trail, over a couple of days, the Council gave the nursery contradictory information about this.
36. In mid-September, an officer from the Council’s Early Years team emailed other officers from its education funding team, SEND team and complaints team. The officer advised:
• “We have been copied into various email trails. We wanted to clarify how the funding [for the 15/30 hours childcare] works … [t]o avoid any further confusion”;
• the nursery would need to claim all of its early years funding from the host council;
• the Council would contact the host council’s funding team to make it aware of the situation;
• the relevant Council team should continue to liaise with the nursery about “…the EHC payments side of things”.
37. A few days later the Council advised the nursery again what information it needed. An internal Council email noted it had agreed to support the nursery with the EHC Plan with funding for 30 hours 1:1 care.
38. Mrs M complained. The Council’s response at the first stage of its complaints procedure noted it was the host council’s responsibility to pay the funded childcare. But it accepted her complaint had “…highlighted some issues within the Early Years Education Healthcare Plan funding system and we can only apologise for the inconvenience.” It was seeking to redesign its system.
39. Towards the end of November Mrs M attended a further meeting at the nursery, with the Council’s SEND caseworker. Mrs M advised X was still not receiving the agreed amount of 1:1 support. The Council’s response advised Mrs M needed to await the response to a complaint she had made.

40. The Council’s complaint response advised:
• the host council needed to pay for the early years education entitlement. The nursery had confirmed X was “…eligible for 30 hours of Extended Entitlement and that [the host council were] paying the nursery for this funded element”.
• EHC Plan funding was based on the child’s home postcode. So the Council agreed to fund this;
• “…there had been some confusion about the details on the original invoice that had been supplied by… [the] nursery to the Education Funding team. I spoke to the Nursery manager …. and explained where the changes needed to be made. The setting was very cooperative and have now reissued a new amended invoice (…[for] September to December 2023) to Education Funding Team. I have received an update from the Education Funding Team that the invoice, has been approved and sent through for payment to be issued…”
• it apologised for the delay in the length of time that it had taken to investigate and resolve the stage 2 complaint.
41. In response to my enquiries, the Council advised it had agreed to fund 30 hours of 1:1 care for X from the start of his EHC Plan, “…as this gives us a full understanding of [X]’s needs and how they can be supported in the setting”.

The funding for the rest of the school year

42. In response to my enquiries, the Council advised: “[w]e do guarantee the funding for the setting until the end of the academic year. We are sorry if that has not been clear in the communication.”

Copying Mrs M into all correspondence and communications

43. In response to my enquiries, the Council advised: “I cannot find communications referring to refusal to include Mrs [M] into, however we would not include families in correspondence regarding school consultations as sometimes the responses can be upsetting for families. If the parent would like the responses we would provide them. With regards to updates to EHC Plans we would follow statutory procedures for the EHC process so parents are fully informed.”

Was there fault by the Council?

The EHC assessment

44. We expect councils to follow the statutory timescales set out in the law and the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
45. Mrs and Mr M requested an EHC needs assessment in mid-August 2022. The Council decided to carry out an EHC needs assessment at the end of September, and its SEND Team requested advice from its educational psychologist and others the following day. This means the educational psychologist’s report should have been available by 10 November to comply with the six-week timeframe. The educational psychologist’s report was not completed until 27 February 2023 – a delay of around three and a half months. My decision is that, as the delay was not in line with the Code, it was fault.
46. This also meant the Council failed to issue a final EHC Plan within the 20 weeks statutory time-limit from the date of Mrs M’s August request. It should have issued X’s final plan at the beginning of January 2023. It issued the plan towards the end of June, a delay of over five and a half months. My decision is failure to meet the 20-week deadline was fault.

The 1:1 support funding

47. Both before and after the Council completed X’s EHC Plan it gave either wrong or confusing advice.
48. Before the Plan, the Council’s advice gave the impression it might fund the 1:1 support if it received more information. On one occasion it wrongly said it was its responsibility. Both the national and local rules for funding extra SEN provision in pre-school settings says the funding is based on the institution, not the address. National rules and local policy do not give any discretion on this. So my decision is it was fault for the Council to not be clearer about this. It could have also liaised earlier with the host council.
49. After it issued the EHC Plan the Council gave the nursery some inconsistent advice about how it should bill the Council. This unnecessarily confused the nursery and was fault.
50. The confusion after the Plan was issued might partly have been because the Council was agreeing to fund 30 hours 1:1 care, despite this not being explicitly stated in X’s EHC Plan.
51. There was also some inconsistent advice to the nursery about how it submitted evidence. This was only resolved when the Council was investigating Mrs M’s complaint.

Copying Mrs M into communications

52. I agree with the approach the Council set out relating to sharing information. The Code instructs local authorities to involve and consult with parents and young people. It does not say they need to copy parents into every communication.

Did the fault cause an injustice?

53. As there is fault in this case, I have to consider the injustice caused to Mrs M and X and recommend a remedy. The delay in finalising the EHC Plan has caused Mrs M and X uncertainty and frustration.
54. While the Council cannot be held responsible for the responses from the host council, it gave vague advice and missed the opportunity to contact the host council, as it later did. Those faults will have caused Mrs and Mr M some avoidable frustration.
55. Mrs M says X missed out on 1:1 support from the nursery due to the confusion about the 1:1 funding. For the period before the Council issued its EHC Plan the Council missed the opportunity to provide clear advice. But the responsibility for the 1:1 support for that period was with the host local authority. So ultimately, the key injustice rests with it.
56. After the Council issued the EHC Plan it agreed to provide 30 hours 1:1 funding for the full academic year. That was not an explicit requirement of X’s EHC Plan. The Council’s records suggest it agreed to this on a discretionary basis. But it took some time for the nursery to submit the information the Council needed, at least partly due to the incorrect advice from the Council. This creates some uncertainty about whether X missed some provision due to the fault. But I cannot say X went a term without any 1:1 provision. That is because the nursery submitted an invoice for services it provided in the term after the Council issued the EHC Plan, which the Council paid. It is unlikely the Council would have paid this for services the nursery had not provided.

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Agreed action

57. To remedy the personal injustice, within a month of my final decision, I recommended the Council should:
1. apologise to Mrs M for the avoidable distress and frustration caused by the delay. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology we have recommended;
2. make Mrs M a symbolic payment of £550 for the distress to her for delay in it completing the EHC process;
3. make Mrs M a symbolic payment of £250 for the uncertainty and distress caused by the advice it gave her and the nursery about entitlement to 1:1 care and payment of this.
58. The Council has agreed to my recommendations. it should provide us with evidence it has complied with the above actions.

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Final decision

59. I uphold this complaint. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman