Summary: We upheld Ms X’s complaint about inclusion funding for children with special educational needs in early years settings. The Council’s policy and practice at the time was flawed and this caused avoidable frustration, distress and uncertainty about whether additional hours of childcare could have been made available for Ms X’s child, Y. The Council has already taken appropriate action to remedy the injustice by apologising, offering a payment and amending its policy and procedures.

The complaint

1. Ms X complained the Council:
1. Failed to award inclusion or exceptional circumstances funding she and the early years setting requested for her child Y;
2. Failed to ensure sufficient wrap around care provision for children with Education, Health and Care (EHC) Plans;
3. Delayed responding to the recommendations of its stage two investigation meaning she had to chase it up;
4. initially declined an EHC needs assessment which led to a further withdrawal of place;
5. Did not name a suitable setting; and
6. Multiple early years settings withdrew places.
2. Ms X said this caused avoidable distress and inconvenience and meant she could not work full-time. She also said it meant Y started school on a reduced timetable.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
7. 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)
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

10. I investigated complaints (a) to (c). Complaints (d) and (e) had appeal rights to the SEND Tribunal which were reasonable for Ms X to use. Complaint (f) is an internal matter for an early years’ setting/school and so is outside our remit.

Back to top

How I considered this complaint

11. I considered the complaint to us, the Council’s complaint response and documents described in this statement. I discussed the complaint with Ms X.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

13. The Early Years SEN Inclusion Fund (EYSIF) was set up to enable nurseries and other early years settings to apply for additional funding to meet the needs of children with special educational needs. The Council told me:
• Its policy at the time of the events causing Ms X to complain, was that if children were undergoing an assessment for an Education, Health and Care (EHC) Plan, their early years setting could not apply for the EYSIF as their needs had been identified as being significant or long term and therefore at the next stage of support beyond early intervention.
• Discretionary funding during the EHC Plan process had also been removed and therefore it was understood that EYISF could not be applied for if a needs assessment request had been made as this could be deemed discretionary funding by another name. EYISF is not available beyond the reception year, and therefore did not provide equity for those children who were older and in needs assessment.
• The operational guidance did not contain any information about not being able to apply for EYISF whilst in the needs assessment process and discussion between senior managers highlighted that this could be discriminatory.
• Following this, a change was immediately made, and applications can now be made for EYISF whilst children are in the needs assessment process, up until the point in which a plan is issued.
14. The National Wraparound Care programme Handbook Wraparound childcare: guidance for local authorities - GOV.UK (www.gov.uk) explains the role of local authorities and the funding they will get to expand wraparound care in their areas from September 2024. This became a specific duty in September 2024. Councils are responsible for delivering on the primary objective of the wraparound programme in their local area. The government’s ambition is that by 2026, all parents and carers of primary school-aged children will be able to access term-time childcare in their local area from 8am-6pm. Delivery of the programme starts in September 2024.
15. The Council told me:
• It has a designated Wraparound Care Lead who, in line with Department for Education (DfE) requirements, has developed a delivery plan based on the known current level of provision and mapping how this could be increased. The DfE approved this delivery plan in July 2024.
• Its plan requires it to work in partnership with all childcare providers, including schools and academies and encourage them to increase their provision. There is funding available to support them to increase the number of places available for all children.
16. I asked the Council about the steps it was taking to ensure sufficient wraparound care. It said:
• It is placing emphasis on promoting this with schools and academies through briefings and other communications to headteachers.
• It is receiving and processing applications from schools, academies and other providers to expand their wraparound care.
• The Wraparound Care duty is focused on all children including those with SEND and additional needs.
• The local authority duty is around availability of Wraparound Care. Delivery is dependent on education providers. It is encouraging providers to offer this. There may also be local circumstances that impact on their ability to deliver, such as staff recruitment.

What happened

17. Ms X applied for an EHC Plan for Y in January 2023 and the Council declined and then reversed its decision in February. Several early years providers withdrew an offer of a place for Y.
18. There were discussions between council officers about EYSIF for Y, but the policy at the time (see paragraph 13) was that this could not be provided during the process of applying for an EHC Plan and so was not available to support Y.
19. Y started reception in September 2023.
20. Ms X complained to the Council about the issues she has raised with us and about other issues. The Council appointed an independent investigator who reported in detail in November, upholding complaint (a).
21. At the end of November 2023, the Council wrote to Ms X:
• Apologising for the service falling below expected standards; and
• Explaining it had upheld her complaint about EYSIF and recommending a senior manager consider a payment for loss of income because had funding been in place during the EHC plan application process, it may be that further placement days would have been available for Y.
22. Ms X complained to us at the end of March 2024.
23. The Council told us two senior officers met with Ms X at the end of April to discuss the adjudication report and agreed a payment of £1500 to her. One of the officers emailed Ms X in May with a summary of their discussion and offered the payment which was to recognise the impact the lack of support had on her income at the time.

Findings

The Council failed to award inclusion or exceptional circumstances funding she and the early years setting requested for her child Y

24. The Council accepts its policy and practice about EYSIF was flawed at the time Ms X sought additional support for Y. The Council was at fault. Its policy fettered discretion and caused a loss of opportunity to secure additional funding. This in turn caused avoidable uncertainty about whether additional hours of early years care might have been available for Y. The Council accepts this, has apologised, agreed a payment and reviewed and amended its policy and practice. This is an appropriate remedy.

The Council failed to ensure sufficient wrap around care provision for children with EHC Plans

25. The wrap around care duty came into force this month and so was not applicable in 2023. I am satisfied the Council’s policy is in line with government guidance. It is a general/target duty and does not give an individual child or parent the right to wrap around care. There is no fault.

The Council delayed responding to the recommendations of its stage 2 investigation meaning she had to chase it up

26. Since her complaint to us, Ms X and senior officers have met, discussed the issues and an appropriate payment has been made. There was a delay of five months between the adjudication letter and the meeting and offer of payment and apology, which was an additional fault. However, the apology and payment already offered are adequate and so I am not making any further recommendations.

Back to top

Final decision

27. We upheld Ms X’s complaint about inclusion funding for children with special educational needs in early years settings. The Council’s policy and practice at the time was flawed and this caused avoidable frustration, distress and uncertainty about whether additional hours of childcare could have been made available. The Council has already taken appropriate action to remedy the injustice by apologising, offering a payment and amending its policy and procedures.
28. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman