Summary: Mr K complained that the Council failed to ensure it had suitable childcare provision available for his son (X) which met his needs. He also said it caused delays in the Education, Health and Care needs assessment process. We found the Council at fault for causing delays in the needs assessment process and it caused a service failure due to the lack of available childcare provision for children with disabilities. The Council will apologise and make payment to Mr K to acknowledge the injustice he and X experienced as a result.

The complaint

1. The complainant, Mr K, complained the Council caused a failure in ensuring there was enough childcare provision available for his son (X) and other children with complex needs or disabilities in its area.
2. He also said it delayed issuing an Education, Health and Care plan and initially wrongly refused to complete a needs assessment for X.
3. Mr K said, as a result, he and X experienced distress, and X lost out on childcare which left him socially isolated. Mr K also said he lost out on funded childcare and he had to fund this himself.

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The Ombudsman’s role and powers

4. 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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)

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How I considered this complaint

7. I considered evidence provided by Mr K and the Council as well as relevant law, policy and guidance.
8. Mr K and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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 found

Relevant law

Education, Health and Care (EHC) plans

10. A child or young person with special educational needs may have an Education, Health and Care (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.
11. 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).
12. There is a right of appeal to the Tribunal against a council’s decision. This includes:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment; and
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
13. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Provision of childcare

14. The Childcare Act 2006 sets out the duty on local authorities to secure, so far as reasonably practicable, that the provision of childcare is sufficient to meet the requirements of parents in their area who require childcare in order to enable them to take up, or remain in, work. This includes ensuring provision is suitable for disabled children as defined by the Equality Act 2010.
15. The Act also sets out a duty to ensure early years provision free of charge for children under the compulsory school age, in line with the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014 (the Regulations).
16. The Regulations says:
• A child becomes eligible for childcare from the term after they have attained the age of two;
• A local authority must secure the early years provision is available for each child for a period of 570 hours in any year and during no fewer than 38 weeks in a year (15 hours per week);
• A local authority may discharge its duty to a child by making arrangement which secure that an early years provider, chosen by a parent, provides the provision to a child. This is when then provider is willing to provide it and accepts the payments and any requirement imposed in respect of it; and
• When a local authority makes arrangements of provision to discharge its duty it should be free of charge, in a pattern to suit the needs of the parents of the child, and meet the needs of disabled children and children with special educational needs.

The Equality Act 2010

17. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
18. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
19. The ‘protected characteristics’ referred to in the Act includes age and disability.
20. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
21. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

What happened

22. Mr K’s son (X) was born with conditions and disabilities which significantly impacts his development, vision, hearing, communication, and mobility. He receives the highest element of Disability Living Allowance.
23. Mr K and X’s mother both works full time. In 2023 they approached early years childcare providers for X to find a nursery placement for him. There was only one provider (Nursery Y) in the Council’s area which could support children with X’s needs.
24. Nursery Y told Mr K it could only provide very limited hours weekly. This was because it was full and there was a lack of early years providers which could support children with disabilities and special educational needs.
25. Mr K was in contact with the Council’s Early Help team and queried, if he employed a nanny for X, whether the 15-hours of free early years funding could be used to pay the cost of the nanny. The Council consulted with the Department for Education and it was confirmed this was not possible in the circumstances.
26. In Autumn 2023 Mr K employed a nanny to provide X with childcare in the family home. This was funded privately.
27. Mr K also asked the Council to complete an EHC needs assessment for X. The information available to the Council included a consultant paediatrician report and other information which found X could not attend mainstream provision due to his significant needs.
28. In late 2023 the Council decided not to complete an EHC needs assessment for X and informed Mr K this was because of X’s very young age and it was unclear how his needs would impact his ability to access learning.
29. Mr K did not appeal to the SEND Tribunal but asked the Council to reconsider its decision. He also shared additional information and evidence from other professionals which confirmed X's needs and challenges. The Council’s Early Help also provided additional supportive information.
30. The Council said it would reconsider Mr K’s EHC needs assessment request for X.
31. In January 2024 X became entitled to the 15-hours funded childcare.
32. In February 2024 the Council agreed to complete the EHC needs assessment process for X.

Mr K’s complaint

33. Mr K complained to the Council X could not attend any childcare provision which met his needs. He said this breached its duties under the Childcare Act 2006 and amounted to discrimination of X under the Equality Act 2010. This was because:
• the Council had failed to make sufficient childcare provision available for children with needs and disabilities. Only Nursery Y could meet X’s needs, but it did not have enough space, hours, or availability to support X, and enable the family to continue to work.
• mainstream nurseries could not support X unless he had an EHC plan and then they had to agree to be able to meet his needs; and
• the Council had wrongly refused to complete an EHC needs assessment for X and it was yet to decide on his request for it to reconsider the refusal.
34. In response the Council partially upheld Mr K’s complaint. It said it had since agreed an EHC plan would be considered for X and provision would be set out in the plan. It acknowledged Nursery Y is the only specialist setting offering the 15 hours of funded childcare and explained this is a gap in provision which it is attempting to resolve. It said it had considered other options with Mr K including:
• X attending a mainstream nursery or childminder with additional support funded by the Council. However, Mr K did not feel this would be a safe option for X due to his needs;
• Liaising and working with Nursery Y to adjust the hours available to X. However, this would not meet Mr K’s working requirements; and
• For Mr K’s private nanny to register as a childminder. However, this would have financial costs and require further training for the nanny.
35. Mr K asked the Council to consider his complaint through its stage two complaints process.
36. In its final response, the Council did not uphold Mr K’s complaint. It explained the EHC plan process was progressing and Mr K had rejected the options the Council had suggested in Summer 2023. This was when a call took place and through a subsequent email from Mr K.
37. In late July 2024 the Council issued X’s final EHC plan. This did not list a placement for X, but it included a personal budget which enabled Mr K to put in place childcare provision for X.
38. Mr K has since appealed the Council’s EHC plan for X to the SEND Tribunal to obtain a specific placement for X.
39. Mr K asked the Ombudsman to consider his complaint. He also disputed the Council’s view the three options had been provided in Summer 2023 and that he had rejected these. Largely as the options were not offers as not actual placements, hours, or provision had been made which could support X’s needs.
40. In response to my enquiries the Council confirmed:
• it is aware it does not have adequate early years provision available for children with disabilities and special educational needs. It has held co-productions meeting with parents, and it continues to look for possible solutions to increase capacity to meet the needs in its area.
• It agreed it could have reached its view to complete X’s EHC needs assessment in November 2023 as it had evidence of his diagnosis and needs from professionals at the time, which confirmed X’s needs could not be met in mainstream provision.
• It did not have evidence of its call or emails with Mr K relating to its offers and his rejections of these offers in Summer 2023. This was because the officer had since ceased employment with the Council.
• The Council had accepted it had caused delays in completing the EHC plan process for X between May 2024 when a final EHC plan should have been issued, until late July 2024 when it issued its plan. It has paid Mr K a direct payment equivalent to the 15-hours of funded nursing for this period.

Analysis and findings

Delays in the EHC plan process

41. The Council has agreed it caused delays in the EHC plan process between May 2024 to late July 2024. This was fault, which meant the direct payment which was set out in the plan was not in place when it should have been. The Council has already remedied the cost Mr K had for this period as a result of the delay.
42. I have also considered the Council’s initial decision to refuse to carry out X’s EHC needs assessment. Although such decisions carry appeal rights to the SEND Tribunal, Mr K did not appeal and the Council agreed to reconsider its decision. The Council subsequently agreed to complete X’s EHC needs assessment in February 2024.
43. Based on the evidence that was available to the Council, it has since agreed it could have made the decision to complete X’s EHC needs assessment in November 2023. I agree with this view as the information it had from professionals at the time showed X had been diagnosed and would need special educational needs support and placements.
44. I have therefore found the Council at fault for causing further unnecessary delay in the EHC needs assessment process. This means it should have completed the assessment process and issued X’s EHC plan by the end of February 2024. It should therefore backdate the direct payment set out in the July 2024 EHC plan to include the period from late February 2024.
45. I also found the Council’s delay’s caused Mr K some unnecessary distress and uncertainty.

Childcare provision for X

46. The Council has accepted it does not have adequate childcare provision for children with disabilities and special educational needs in its area. This is a service failure, which it is taking steps to review and address.
47. I found the Council’s service failure meant Mr K was unable to find a suitable childcare placement which could meet X’s disabilities and needs. He therefore mitigated this by arranging a private nanny to look after X from Autumn 2023. In reaching my view I was conscious there is no evidence to confirm the Council had offered and secured childcare which could meet X’s needs at any stage.
48. I have considered the impact the Council’s service failure caused X and Mr K. I found:
• Mr K had mitigated the impact on X by arranging a private nanny. However, X still missed out on the opportunities for social interactions and development around others which was not something the nanny could provide;
• Mr K had costs toward the private nanny between Autumn 2023 to December 2023. However, during this time he would have been required to fund a childcare placement as X had not yet become eligible for 15-hours funded childcare;
• Mr K lost out on the value of the 15-hours funded childcare for X from January 2024 when X became eligible. This was until X final EHC plan was issued. However, the period between March to May 2024 has already been considered as part of my remedy in paragraph 41; and
• Mr K experienced some additional unnecessary distress and uncertainty due to the Council’s handling of X’s childcare.

Discrimination

49. Mr K said the Council’s failure to make available and provide X with suitable childcare which could meet his disabilities and needs amounts to discrimination.
50. I have considered whether the Council had regard to its duties under the Equality Act 2010. It is clear the Council was aware and took steps to try an increase its local offer. It also considered Mr K’s EHC needs assessment request for X and the information it received about X.
51. I have therefore not found the Council at fault for failing to have regard to its duties under the Equality Act. However, I cannot say whether the Council’s actions, lack of action, or failure to have sufficient childcare provision for children with disabilities and special educational needs amounts to discrimination. Only a court can reach such a decision.
52. While the Council has taken some positive steps to remedy Mr K and to resolve its lack of suitable childcare provision for children with disabilities and special educational needs, I have found it appropriate to make a service improvement recommendation.

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Action

53. To remedy the injustice the Council caused to Mr K and X, the Council should, within one month of the final decision:
1. apologise in writing to Mr K for the impact caused by its delayed handling of the Education, Health and Care needs assessment process for X, and its lack of suitable and available childcare provision which could meet X’s needs.

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

2. pay Mr K a symbolic payment of £300 to acknowledge the distress and uncertainty he experienced as a result of its delay and handling of the Education, Health and Care needs assessment process and childcare arrangements for X;
3. pay Mr K a further symbolic payment of £200, to use as he sees fit for the benefit of X, to acknowledge the loss of opportunity X had to experience social interactions and development around other children;
4. pay Mr K the amount equivalent to its direct payment in X’s July 2024 Education, Health and Care plan to reimburse him for the loss of the 15-hour funded childcare from January to 21 May 2024.
2. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4.  
5. share with the Ombudsman an update on the steps the Council had taken and intends to take to address the lack of available childcare provision for children with disabilities and special educational needs in its area.
3. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. I have completed my investigation with a finding of fault and a service failure by the Council. The Council will apologise and make payment to acknowledge the injustice Mr K and X experienced as a result.

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Investigator's decision on behalf of the Ombudsman