Summary: We cannot investigate this complaint about the Council’s decision not to reimburse nursery costs. Most of the complaint is out of our jurisdiction as the complainant appealed to tribunal. The Council has offered an appropriate remedy for delays in arranging staff training. Further investigation would not lead to a different outcome.

The complaint

1. Mrs X complained about the Nursery placement the Council named in her child’s, Y Education, Health and Care (EHC) plan. She said:
1. the Council incorrectly told the Tribunal the Nursery was parental preference,
2. the Nursery did not allow term-time only placements, therefore she had had to pay for additional nursery costs;
3. the Nursery could not meet Y’s special education needs,
4. the Nursery did not make sensory provision as specified in the EHC plan; and
5. the Council failed to ensure that Nursery staff received the training recommended to support Y.
2. She said the Council’s failings had caused significant distress and affected the family financially. She wants reimbursing for having to fund the shortfalls in Y’s education.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. We cannot investigate Mrs X’s complaint about the Council’s decision to name the Nursery in Y’s final EHC plan (complaints a) – c)). That is because Mrs X appealed to the SEND Tribunal about the placement, therefore, we have no jurisdiction to investigate. The Council resolved the appeal through a Consent Order. However, Mrs X could have continued to the SEND Tribunal if she remained unhappy about the term-time only provision, or that the Nursery could not meet Y’s needs as specified in their EHC plan.
10. Mrs X also complained the Nursery did not provide the sensory provision set out in the EHC plan. By ensuring the Nursery had a place available for Y, the Council fulfilled its statutory duty of ensuring the specified provision was available for Y. The Council’s complaint response confirmed how the Nursery had met Y’s sensory needs. There is not enough evidence of fault to justify our involvement.
11. We have not jurisdiction to investigate any complaints about the Nursery’s day-to-day interactions with Y, and how it delivered the provision.
12. In the Council’s complaint response, it accepted it had not progressed a funding request from the Nursery for additional staff training. The Council apologised for this oversight. It offered to provide additional support hours for Y for their remaining time at Nursery.
13. Mrs X did not access the additional hours, and Y left the Nursery before the end of their placement. She subsequently complained the Council did not arrange the catch-up support which resulted in her having to pay for this. She asked the Council to reimburse these costs. The Council refused.
14. We will not investigate this complaint. The Council offered additional provision to Y, to compensate for the impact the delays in staff at his Nursery accessing training might have caused. That remedy is in line with our Guidance on Remedies; further investigation would not lead to a different outcome. It was Mrs Y’s decision to end the placement and fund her own support. In any event, the Council has completed an annual review of Y’s EHC plan. This is the best place to consider what provision Y needs.

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Final decision

15. We cannot investigate Mrs X’s complaint because we have no jurisdiction to investigate matters that have been appealed.

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Investigator's decision on behalf of the Ombudsman