The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the support and hours a child received while at a nursery.
The complaint
The complainant, whom I shall call Mrs X, says Nursery Z failed to support B properly, and the Council failed to adequately investigate her complaint.
The Ombudsman’s role and powers
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Background events Mrs X is B’s mother. B is now 4. Mrs X says that from October 2020 B’s attendance at Nursery Z gradually reduced to 2.5 hours a week by January 2021. The Council confirmed in May 2021 that it would provide extra support funding for B, up to a maximum (not minimum) of 25 hours a week for term time only.
B left Nursery Z a month later and started attending Nursery Y. Two weeks later the Council issued B an Education Health and Care Plan (EHC Plan).
Mrs X says Nursery Z failed to support B properly, should not have reduced the hours and did not use the funding correctly. She says B missed the nursery education they needed. She says the Council has failed to properly investigate her complaint. She has asked the funding she believes Nursery Z should have used for B, be transferred to Nursery Y.
The Council in reply to her complaint explained it had no duty to provide support before the EHC Plan started. It suggested Mrs X contact Ofsted about how Nursery Z used its funding.
Analysis For the reasons set out in paragraph two, we cannot investigate how Nursery Z supported B, or what education and hours it provided.
A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
B moved from Nursery Z before the EHC Plan came into force. The Council has no duty to provide the support before then.
We cannot investigate how the Council replied to Mrs X’s complaint because the courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which is outside our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
Final decision
We will not investigate Mrs X’s complaint because we cannot look at the support, education and hours provided by a nursery.
Investigator's decision on behalf of the Ombudsman