The Ombudsman's final decision:
Summary: There was fault in the way the Council considered Mrs X’s request for delayed entry to reception for her daughter. It should arrange for her request to be reconsidered. There was also fault in the way the Council dealt with Mrs X’s complaint.
- The complainant, whom I shall call Mrs X, complains that:
- The Council did not follow the correct process in considering her request for delayed entry; the same person considered the original application and the request for a reconsideration.
- The Council has not complied with paragraph 2.17 of the School Admissions Code which requires a decision on delayed entry to be based on the circumstances of the case and in the best interests of the child. The Council has also not explained its decision.
- The Council treated Mrs X unfairly by only asking one head teacher for an opinion on her request for delayed entry; Mrs X listed three schools on her application for a school place.
- The Council failed to tell Mrs X about its complaints procedure.
- By failing to take into account that English is Mrs X daughter’s second language the Council has not complied with its duties under the Equalities Act.
What I have investigated
- I have investigated Mrs X’s complaint as set out against a) to d). The final section of this statement explains why I have not investigated the rest of her complaint.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
How I considered this complaint
- As part of my investigation I have:
- Discussed the complaint with Mrs X and considered the information she provided.
- Sent enquiries to the Council and considered its responses.
- Considered the School Admissions Code 2014, The Department for Education’s non-statutory advice on the admission of summer-born children, the Council’s determined admission arrangements and its policy for delayed entry.
- Given Mrs X and the Council the opportunity to comment on my draft decision and took into account their responses.
What I found
- The School Admissions Code (the Code) requires school admission authorities to provide for the admission of all children in the September following their fourth birthday. In a community controlled school the local authority is the admission authority. Children are not of compulsory school age until the term following their fifth birthday.
- There is flexibility within the admissions system for parents who do not feel their child is ready to start school. Children can attend school part-time and parents can defer the date their child starts school until they reach compulsory school age.
- The Code also allows parents to seek a place for their child outside of the normal age group. This includes situations where the parents of a summer-born child choose not to send their child to school until the September following their fifth birthday. The child’s parents can then request they are admitted out of their normal age group – to reception rather than year 1 (referred to in this statement as delayed entry). A summer-born child is one with a birthday between 01 April and 31 August.
- The Code states that admission authorities must make decisions on delayed entry based on the circumstances of each case and in the best interests of the child. This includes considering the parent’s views, information about the child’s academic, social and emotional development, and if the child was born prematurely. Admission authorities must also consider the views of head teachers. When informing a parent of their decision, admission authorities must set out clearly the reasons for their decision.
- To help admission authorities deal with requests for summer-born children to be educated out of year group, the Department for Education has published non-statutory guidance. This is in the document “Advice on the admission of summer-born children – For local authorities, school admission authorities and parents”.
- In September 2015, Nick Gibb MP, Minister of State for Schools, published a letter about the admission of summer-born children. This said the Government would amend the Code so parents could choose to send summer-born children to reception in the September following their fifth birthday – rather than having to make a request to the admission authority. This will require a public consultation and a change to the law. Despite the content of Mr Gibb’s letter there has been no change in the legal position about the admission of summer-born children.
- Lancashire County Council has a policy for considering requests from parents who would like to delay their child’s entry to reception by a year. This policy is in the Council’s publication “Admission to Lancashire Primary Schools – Information for Parents 2016-17”.
- The policy states that: “Where parents want a full year delayed entry and a placement in a reception class they must provide evidence of an exceptional or substantial need for this to happen.” The Council defines “Substantial / Exceptional Need” as “anything which the parent(s) consider relevant. It may include developmental, educational, medical, social or welfare information / reasons...Parents must however provide evidence to support any request for early start or full year deferral with a reception start.”
- The Council has also provided me with a flowchart which shows the process for considering requests from parents for delayed entry. For schools where the Council is the admission authority, an Area Pupil Access Officer considers the request. If the Council refuses the request, parents can challenge the decision through a “Review of initial papers (etc) by Central Pupil Access”. For schools where the Council is not the admission authority, it passes the request straight to the school for consideration.
- On 13 October 2015 Mrs X emailed the Council and asked how to apply for delayed entry to reception for her daughter (Child N).
- Officer B from the Council replied to Mrs X on 21 October 2015 and explained she would need to send a formal request.
- Mrs X sent Officer B a formal request on 15 November 2015 with supporting information from Child N’s nursery. Mrs X explained how Child N is a summer-born baby and referred to various studies about the disadvantages such children face at school. Mrs X referred to the sections of the Code that deal with delayed entry and explained she was raising Child N bilingually. Delaying her entry to school until 2017 would maximise the time she could spend learning a language other than English.
- Officer C from the Council replied to Mrs X on 17 November 2015. Officer C explained the information submitted was under consideration and asked if Mrs X was considering increasing Child N’s nursery provision. Officer C also asked if Mrs X could provide details of her preferred schools. The Council could then approach the head teachers about her request.
- Mrs X replied on the same day and explained when Child N attended nursery. She also provided the Council with her three preferred schools (Schools A, B and C).
- On 01 December 2015 and 04 December 2015 Mrs X emailed Officers C and B respectively for an update on her request.
- Officer C responded to Mrs X in a letter dated 08 December 2015. Officer C explained the local authority had considered Mrs X’s request as the admission authority for School A. Officer C’s letter explained there was not “sufficient evidence of an exceptional / substantial need to support an out of year placement”. The head teacher of School A did not support the request and had contacted the Council after Mrs X mentioned the possibility of delayed entry at the school’s open morning. Officer C explained Mrs X had the option of having the decision reviewed by colleagues “at County Hall in Preston.”
- Mrs X was unhappy with the Council’s response and on 14 December 2015 emailed Officer C and asked the Council to review her request. Mrs X said Child N was a summer-born baby and she had the right to delay her entry to school by a year. The decision for the Council to make was if Child N could start Reception in 2017. Mrs X felt the Council had not properly considered her request and had to explain why it would be beneficial for Child N to miss reception. It was illegal for the Council to have a blanket policy to force children to miss reception.
- Mrs X was unhappy the head teacher of School A would not support her request. The head teacher had said they would have to place Child N in the normal year group for her age so she could sit her exams – Mrs X said this was not correct. The head teacher had also referred to Child N’s brother who was summer-born and was doing well at school. Mrs X said the Council could not take this into account. Mrs X said she would like to make a formal complaint and appeal against the Council’s decision.
- On 14 December Officer C responded to Mrs X and explained the reconsideration of her request would be by a “senior manager at County Hall.” Officer C included a copy of a flowchart which showed the Council’s process for considering requests for delayed entry.
- On 21 January 2016 Officer D from the Council replied to Mrs X. Officer D explained the December 2014 School Admissions Code was still in effect despite the open letter from Nick Gibb, MP. The Council did not have a blanket policy to refuse requests for delayed entry and the Council looked at each request individually. The Council was also concerned about increasing numbers of parents asking for delayed entry as it could have an impact on pupil place planning and the percentage of parents offered their preferred school.
- Officer D accepted Child N’s nursery had identified some language development issues as she did not speak English at home. Regular attendance would resolve this. The head teacher of School A had successfully integrated Child N’s sibling who also had language issues. The Council did not feel there was enough evidence of an exceptional need for delayed entry to reception. School A would provide Child N with the regular pattern of attendance recommended by the nursery and there would be professional input to help with her language development. It would seem counterproductive to delay Child N’s entry to school by a year and the head teacher of School A did not support a delayed start.
- Mrs X responded on the same day and asked why the Council thought it was in Child N’s best interests to start year 1 in 2017 rather than reception.
- Officer D emailed Mrs X and explained his reconsideration of the request was the end of the process. He also explained that: “even though the Council is the admission authority for community primary schools, it can only say whether or not it supports a full year delay...Once any child has been admitted the legal responsibility about where they are placed... is with the school.”
- Mrs X then made a Subject Access Request which gave her access to the Council’s internal emails about her application for delayed entry. Mrs X was unhappy as she says the emails showed Officer D made the original decision about her request and also reviewed it. She complained to the Chief Executive of the Council on 07 March 2016. The Council’s Complaints Manager replied and said the Council could not consider her complaint under the corporate complaints procedure as “the Area Pupil Access Team have acted correctly and in accordance with the Council’s policies”. The response explained if Mrs X was unhappy she could complain to the Ombudsman. She did this in March 2016.
The Council did not follow the correct process in considering her request for delayed entry; the same person considered the original application and the request for a reconsideration.
- The Council’s policy is that initial requests for delayed entry are considered by “Area Pupil Access”. Officers B and C are part of this team. Requests for reviews are then considered by “Central Pupil Access”. Officer D is part of this team.
- As part of my investigation I asked the Council to provide me with the same information it sent to Mrs X when it responded to her Subject Access Request.
- Having reviewed the information provided it is clear to me that Officer D was involved in considering Mrs X’s request from the beginning. Mrs X’s sent her formal request for delayed entry to the Council on 15 November 2015. Officer C sent Mrs X’s request to Officer D and said “Please can you have a look and advise.” Officer D provided Officer C with the response she sent to Mrs X.
- Mrs X replied and Officer C sent her response to Officer D. He replied to Officer C on 25 November 2015 and said “I have a decision but to follow the protocol this needs to come from...or you initially with me as the backup if consideration is required.”
- Officer C sent Mrs X a response on 08 December 2015 and she replied on 14 December 2015. This was sent to Officer D who again drafted a response. This explained the reconsideration of Mrs X’s request would be by a “senior manager at County Hall.” Officer D then carried out the reconsideration.
- In her response to Mrs X dated 18 March 2016 the Council’s Complaints Manager said:
“It is entirely appropriate for Officer D as the County Pupil Access Manager, to have been consulted in the decision making process in relation to your daughter. In this role, he is the Council expert and is responsible for making the final decision on these matters.”
- But having considered the Council’s policy it seems reasonable for parents to expect each stage to be looked at independently. The Council has explained that Officer C had only recently started to consider requests for delayed entry. But it seems that Officer D played much more of a role in the first stage of the process than merely being “consulted”. He wrote the correspondence sent by Officer C and made the initial decision to refuse Mrs X’s request. I have seen no evidence to suggest anyone else was involved in the decision making process.
- I consider the Council to be at fault for not following its published process about requests for delayed entry. Mrs X cannot be certain the Council has properly considered and reviewed her request.
The Council has not complied with paragraph 2.17 of the School Admissions Code which requires a decision on delayed entry to be based on the circumstances of the case and in the best interests of the child. The Council has also not explained its decision.
- As set out in the Code it is for the admission authority of a school to decide whether to agree to a parent’s request for delayed entry. Paragraph 2.17A states that decisions must be made in the best interests of the child.
- The Code does not specifically require admission authorities to decide if it is in child’s best interests to miss reception. This could happen if the admission authority turns down the request for delayed entry and the child does not attend school until they reach statutory school age. In such a situation a summer-born child would start school in year 1. But the impact of a child missing reception is something an admission authority might take into account when considering a request for delayed entry, if it considers it to be part of the circumstances of the case.
- The Council is the admission authority for the schools Mrs X has applied to and is responsible for making decisions on delayed entry to reception.
- I understand Mrs X is unhappy with the Council’s decision not to agree to her request and she believes its decision is not in Child N’s best interests. I also understand this has placed her in a position where she currently either has to accept a reception place for September 2016 or enter Child N into year 1 in September 2017.
- Mrs X is also unhappy the Council's policy on delayed entry states parents must provide evidence of "substantial / exceptional need". But the Code does not prevent admission authorities from requesting supporting information from parents.
- As set out above I have found fault with the way the Council has applied its published process for considering requests for delayed entry to Mrs X’s application. But the evidence I have seen does not suggest the Council has failed to comply with the relevant requirements of the Code when it considered Mrs X’s request.
- This is because it considered the information Mrs X provided, contacted the head teachers of her preferred schools, and explained its decision to Mrs X in the letter from Officer D dated 21 January 2016.
- As the Council’s decision would seem to have been properly reached I cannot question the merits of its decision to refuse Mrs X’s request. But as set out in the ”Recommended action” section the Council will need to reconsider her request.
The Council treated Mrs X unfairly by only asking one head teacher for an opinion on her request for delayed entry; Mrs X listed three schools on her application for a school place.
- In response to my enquiries the Council told me it did contact all three head teachers about Mrs X’s request. But only School A has formal records as Child N was effectively “guaranteed” a place there. This is because her brother already attends the school. The Council contacted the other two schools by telephone and no records are available
- The Council has provided a copy of an email to the head teacher of School A asking them to summarise their discussions with the Council and Mrs X about her request for deferred entry. But it has not produced an equivalent email to Schools B and C.
- It is down to the Council to decide how it records conversations with head teachers about delayed entry. But there are clear advantages to asking for comments in writing or recording contact on the Council’s admissions system.
- I have considered what the Council has told me about contacting all three head teachers and do not to uphold this part of Mrs X’s complaint. But I think it would be helpful for the Council to provide Mrs X with the views of all the head teachers it consults when it carries out the actions I have recommended below.
The Council failed to inform Mrs X about its complaints procedure.
- In her emails to Officer D dated 21 January 2016 Mrs X asked him to clarify “the formal route to challenge / appeal your decision.” In his response sent on the same day Officer D said “I suppose you could look at the Council’s complaints procedure on its website. This is not usually used for admission issues.”
- On 07 March 2016 Mrs X sent a letter to the Chief Executive with the heading “Formal complaint regarding maladministration in Area and Central Pupil Access”.
- Officer D directed Mrs X to the Council’s complaints procedures so I do not uphold this part of her complaint. But I do have concerns about the Council’s complaints procedure. There is little information on the Council’s website about how the process operates and what a person can expect when they make a complaint. I can find no information about how the Council considers complaints, the number of stages in the complaints process, or how quickly the Council aims to respond to complaints.
- In responding to Mrs X’s the Complaints Manager explained the Council would not consider her concerns under the complaints procedure as the Council had properly considered her request for delayed entry. The response from the Complaints Manager also failed to address many of Mrs X’s concerns.
- As set out above I do not know what the Council’s complaints procedure is. But on balance I do not think it was appropriate to refuse to consider Mrs X’s complaint. The Complaints Manager would seem to have decided the Council dealt with Mrs X’s request for delayed entry correctly, but I see no reason why a full response could not have been provided under the corporate complaints procedure. I consider this to be fault which has left Mrs X without a response to her complaint.
Other matters coming to my attention
- Paragraph 2.17 of the Code requires admission authorities to make clear in their admission arrangements the process for requesting admission out of the normal age group. Parents asking for delayed entry to Reception would be making such a request.
- While the Council has published a process for parents to request admission out of the normal age group, the Council’s admission arrangements for 2016/17 and 2017/18 do not contain this process. This is also fault but I do not consider it to have caused Mrs X any injustice. This is because if the Council’s admission arrangements had contained the Council’s published process I do not believe the outcome of Mrs X’s request would have been any different.
- The Council’s current policy also states parents are required to submit supporting information when making a request for delayed entry – this must show “exceptional / substantial need”. But it does consider requests where there is no such information and there is no legal requirement for parents to supply supporting information with a request for delayed entry. The Council should address this anomaly.
- In correspondence with Mrs X the Council explained it was concerned about the impact a large number of requests for delayed entry could have on pupil place planning. While this may be a concern for the Council it should be careful not to use it as a reason for refusing a parent’s request for delayed entry.
- To remedy the faults identified above I recommended the Council take the following action:
- Apologise to Mrs X.
- Arrange for a senior manager to review her application for delayed entry and provide her with a full response. It should consider the views of the head teacher from any school Mrs X wishes to request delayed entry. Mrs X may wish to consider providing additional information in support of her request. The Council should then explain in full its decision to Mrs X and provide reasons for its decision. This should include an explanation as to how its decision is in Child N’s best interests.
- Ensure it properly applies its procedure for considering requests for delayed entry to all future requests.
- Review the information on its website about the corporate complaints procedure within two months of my final decision.
- There was fault in the way the Council considered Mrs X’s request for delayed entry and her complaint to the Chief Executive. It will take the steps recommended above to address the injustice caused. I have also found fault in the Council’s admission arrangements but this did not cause Mrs X any injustice. I do not uphold the rest of Mrs X’s complaint for the reasons set out above and have completed my investigation.
- Mrs X claims that the Council has not complied with its duties under the Equalities Act by failing to take into account English is her daughter’s second language. If she has evidence the Council has breached the Equality Act 2010 then she should consult the Equality Advisory Support Service. This is a legal matter which the Ombudsman cannot determine.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman