Summary: Mrs N complained about a shortfall in funding from the Council to meet the needs of a child with special educational needs who attended the preschool she runs. The Council declined to pay for the support the child received between 17 April and 29 May 2023. We found fault with the decision to end the funding on 17 April 2023 since it did not take account of the needs of the child. The Council has agreed to pay the preschool for the support it provided.

The complaint

1. Mrs N complained about a shortfall in funding from the Council to meet the needs of a child with special educational needs who attended the preschool she runs.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decisions. If there was no fault in how the organisation made its decisions, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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. 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)

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How I considered this complaint

5. I considered information provided by Mrs N and the Council. I invited Mrs N and the Council to comment on my draft decision.

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What I found

6. Mrs N runs a preschool. A child with special educational needs attended the preschool in 2022 and 2023. The child needed one-to-one support. The Council agreed to fund the support for three terms through Local High Needs Funding.
7. Local High Needs Funding is provided by the Council to meet the emerging needs of children and those with complex needs who do not have an Education, Health and Care (EHC) Plan.
8. The funding ended on 17 April 2023.
9. The child’s parents requested an Education, Health and Care (EHC) needs assessment in November 2022. The Council says it received their request in January 2023. The Council issued an EHC Plan for the child in July 2023. The Council provides alternative funding to meet the needs of children with an EHC Plan. The child’s Plan was late. The Council should have issued the Plan by 29 May 2023. Mrs N says the Council told her it would backdate the funding.
10. Mrs N complained to the Council on 26 July 2023. She complained the preschool had not received any funding for the child’s additional support since 17 April when the Local High Needs Funding ended. She said the child continued to attend the preschool, and she continued to fund the additional one-to-one support the child needed. She complained the preschool was out of pocket.
11. The Council apologised for the delay issuing the child’s EHC Plan and said it would look in to backdating funding to 29 May 2023 when the Plan should have been completed. The Council said the nursery had received Local High Needs Funding for three terms, ending on 17 April 2023, which was the maximum the Council would pay.
12. Unhappy with the Council’s response, Mrs N complained to the Ombudsman. She said the Council had not backdated the child’s EHC Plan funding to 29 May or offered any funding to bridge the gap from 17 April, when the Local High Needs Funding ended.

Support for children with special educational needs in early years settings: government funding

13. The government provides funding to councils through the Dedicated Schools Grant (DSG). The funding must be used in line with legislation and regulations. The government has also issued operational guidance councils must follow.
14. The Dedicated Schools Grant is made up of a number of elements, or blocks, each with a specific purpose.
15. The early years block funds early years provision for two-, three- and four-year-olds.
16. The high needs block supports provision for children with special educational needs and disabilities (SEND) who require additional resources to participate in education and learning.
17. Councils are required to establish an inclusion fund in their local funding systems. The special educational needs inclusion fund (SENIF) supports councils to work with providers to address the needs of individual children with low level or emerging SEND. Councils can establish their SEN inclusion funds using money from either, or both, of the early years block and high needs block of the DSG.

Support for children with special educational needs in early years settings: Hertfordshire County Council’s policy and procedures

18. The Council has published guidance on funding for the provision of support for SEND and additional needs in early years for children who do not have an EHC Plan.
19. Funding in Hertfordshire is divided into levels: emerging additional needs; targeted level needs; and high needs. The Council’s guidance explains the eligibility criteria and the application process.
20. The child attending Mrs N’s preschool received funding at the ‘high needs’ level, which is also referred to as ‘local high needs funding’.
21. The Council’s policy says Local High Needs Funding can be allocated for “a maximum of three terms, over the course of a year”.
22. If the Council issues an EHC Plan for a child in receipt of Local High Needs Funding, the funding will cease from the date of the EHC Plan and the child is transferred to the main High Needs Funding scheme.

The Council’s response to my enquiries

23. The Council said it paid High Needs Funding (HNF), backdated to 29 May 2023, on 14 December 2023. This means Mrs N’s preschool received local high needs funding until 17 April 2023, and high needs funding from 29 May 2023 when the Council should have issued the child’s EHC Plan.
24. The Council has, in effect, provided a remedy for the impact of the delay issuing the child’s EHC Plan.
25. The Council declined to pay for the additional support the child received between 17 April and 29 May 2023.
26. The Council explained that local high needs funding is intended to be short-term funding and there is an expectation there will be no further applications for the same child. The Council expects educational settings to request an Education, Health and Care needs assessment if they believe the needs of the child are likely to continue to be high.

Analysis

27. It is for the Council, not the Ombudsman, to decide how to allocate funding. However, the Council must act rationally and its decisions must contribute to the aim of the special educational needs inclusion fund, namely to support individual children who need additional resources to participate in education and learning.
28. The Council’s policy seeks to ensure funding reaches children quickly in order to provide support as soon as their additional needs become apparent. The Council has clear systems in place to allocate the funding based on structured but informal assessments of children’s needs using standard ‘descriptors’.
29. Where needs are complex or long-term, there is an expectation in the policy that educational settings will apply for an Education, Health and Care Plan. This ensures children benefit from the formal procedures for the assessment of their needs and the associated legal protections set out in legislation and regulations. Clearly, the sooner this happens in complex cases, the better.
30. However, it is not clear what purpose the Council’s decision to limit funding to a maximum of three terms serves, or how it contributes to the goal of meeting the additional support needs of children with SEND.
31. It seems illogical for the Council to provide support for the child at Mrs N’s preschool at the ‘local high needs’ level until 17 April and again from 29 May 2023 under the main high needs funding scheme, but to refuse to provide any support between 17 April and 29 May.
32. There does not appear to be any question the child needed support. Mrs N says the preschool provided the support. The Council has refused to fund the support because of the timing of the request for an Education, Health and Care needs assessment.
33. It is true the preschool could have requested an EHC needs assessment sooner. But that does not in itself justify the Council’s decision not to provide funding to meet the child’s needs.
34. Having carefully considered all the circumstances, I consider the Council’s decision to end the local high needs funding on 17 April 2023 was fault since it does not take account of the needs of the child. The Council has applied a blanket policy without considering whether to exercise its discretion.
35. Mrs N’s preschool continued to provide the support, so the child did not suffer any detriment. However, the preschool is out of pocket. As this is a result of fault by the Council, I recommended a remedy. The Council accepted my recommendations. I have set out the actions the Council has agreed to take below.

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Agreed action

36. 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.
37. Within six weeks of my final decision, the Council will:
• apologise to Mrs N for leaving the preschool out of pocket between 17 April and 29 May 2023; and
• pay the preschool for the support provided during this period.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. The Council accepted my recommendations, so 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