The Ombudsman's final decision:
Summary: Mrs X complained the Council did not correctly consider her application for her summer born daughter Y to start school at compulsory school age in reception. We find the Council did not decide what school year was in Y’s best interests to start at in September 2017. This fault in its decision making caused Mrs X avoidable distress. However the Council then considered further evidence and agreed to Mrs X’s request for a reception year start. The Council has agreed to apologise to Mrs X, issue guidance to staff and reconsider all its recent decisions to ensure they comply with legislation and statutory guidance.
- Mrs X complains the Council, as admissions authority did not correctly consider her application for her summer born daughter Y to start school in Reception when she reached compulsory school age.
- Although the Council later agreed to this request, after she provided more evidence, she complains the delay and Council’s approach caused her and Y avoidable stress and anxiety.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. We have exercised our discretion to investigate this complaint because of the public interest in the matter complained about. (Local Government Act 1974, sections 26B and 34D, as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I considered evidence from Mrs X and spoke to her about the complaint.
- I considered evidence from the Council and the Company it uses to provided education services.
- I considered the School Admissions Code and guidance published by the Department for Education.
- I sought clarification from the Department for Education and considered its comments.
- I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered their comments before making my final decision.
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. But parents can decide not to send their child to school until they reach compulsory school age. This is the term following their fifth birthday.
- The Code also allows parents to seek a place for their child outside of their normal age group. This includes situations where the parents of a summer-born child (born between 1 April and 31 August) choose not to send their child to school until the September following their fifth birthday. The parents can ask the admissions authority to admit their child to reception rather than year one.
- The Code states that “in any circumstance where a parent requests their child is admitted out of their normal age group, the admission authority must make a decision on the basis of the circumstances of the case and in the best interests of the child concerned.”
- This includes considering the parents’ views, information about the child’s academic, social and emotional development, and whether the child was born prematurely. Admission authorities must also consider the views of head teachers. When telling a parent of their decision, admission authorities must set out clearly the reasons for their decision.
- Parents do not have the right to insist that their child is admitted to a particular age group.
- The Code says admission authorities must process applications for admission outside the normal age group as part of the main admissions round unless the parents’ request is made too late for this to be possible.
- Non-statutory guidance is intended to support councils in decision making. Admission authorities should follow the advice given in non-statutory guidance or explain their reasons for not doing so.
- To help admission authorities deal with requests for summer-born children to be educated out of their normal 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” 2014.
- The guidance states that admission authorities must take account of the child’s individual needs and abilities and consider whether these can best be met in reception or year one. This should involve taking account of the potential impact of the child of being admitted to year one without first having completed the reception year. The head teacher’s views are an important part of this consideration.
- The guidance says admission authorities can expect parents to provide information to support their request since without it they are unlikely to be able to make a decision on the basis of the circumstances of the case. There should be no expectation that parents will obtain professional evidence that they do not already have.
- The guidance says that in general, children should be educated in their normal age group and they should only be educated out of their usual age group in very limited circumstances. However it goes on to say that parental requests for summer born children are different from any other request for admission out of the usual age group. It says parents of summer born children must be able to make a decision about whether their child is ready to go to school before compulsory school age confident that, if they decide not to send them to school until age five, the decision about the year group they should be admitted to at that point will be made in the child’s best interests.
- Guidance recognises it will not always be easy for admission authorities to make a decision about a child more than a year before the point at which they may be admitted, particularly as it is difficult to know what progress they may make in the intervening period. Guidance is clear though this is the decision admission authorities must make.
- Guidance recommends admission authorities put in place a process to consider requests for delayed entry. It recommends this requires parents to apply for a place for their child’s normal age group at the usual time but also apply for the child to be admitted out of the normal age group at the same time. Where an admission authority agrees a parent request for delayed start into Reception then the parents must make a new application as part of the main admissions round the following year. Guidance says nothing specific about out of year applications for admission of summer born children.
- Once a child has been admitted to a school it is for the head teacher to decide how best to educate them in consultation with its parents.
- Parents can make a complaint about an admission authority’s decision not to admit their child outside their normal age group. Admission authorities should have a complaints procedure to deal with this. If parents are unhappy with how an admission authority has handled their complaint they can complain to the Ombudsman.
Department for Education correspondence with Ombudsman
- In March 2018, the Department for Education confirmed that requests for summer born children to be admitted to reception at the age of five should be agreed in any circumstances where it is in the child’s best interests to do so. It does not consider such requests should only be agreed in very limited circumstances. Its view is that, when considering pupils generally, there will be very limited circumstances in which it is appropriate to educate a child outside their normal age group. But it does not believe this is necessarily the case when considering summer born children whose parents have requested they are admitted to reception at age five.
- Parents should receive a response to their request for admission outside of the normal age group before primary national offer day. This is in the April of the school year the child becomes four. The Department has confirmed to the Ombudsman that the admission authority must clearly explain why it decided, on the basis of the circumstances of the individual case, it would be in the best interests of the child to be admitted to reception or year one in the September of the following calendar year. The Department acknowledges it will not always be easy for an admission authority to make a decision so far in advance.
- The Council uses a company, (the Company), Achieving for Children to provide certain education functions. The Company manages school admissions including decision making about admission of summer born children. As the Company is acting on behalf of the Council we have referred to its decisions as being those of the Council throughout this decision.
- The Council has guidance for parents requesting delayed admission. This states that applications must be made in writing and by the normal admissions round closing date in January each year.
- Applications can include supporting information if the parent wishes. The guidance states “It is usually considered beneficial for children to remain in their appropriate chronological year and exceptions are few.” It also says “each request will be carefully considered and a decision will be made on the individual merits of each case”.
- Mrs X’s daughter Y is a summer born child who has a medical condition affecting her muscle strength and fatigue.
- Mrs X first applied to the Council for a reception place at school for Y to start with her normal age group in September 2016. She agreed with the school that Y would start on a part-time basis to see how she got on.
- By the end of September 2016 Mrs X was very concerned about Y’s ability to continue. She was suffering severe fatigue. Mrs X decided to withdraw Y from school in early October 2016.
- Mrs X then applied for Y to restart in reception in September 2017 as a delayed entry. She sent the Council a report from a physiotherapist describing Y’s condition and that it had been made worse by starting school.
- The primary school head teacher wrote to the Council in November 2016 to say there was not enough evidence to predict how Y would have coped had she stayed at school for the rest of reception year. The head suggested Mrs X obtain supporting medical evidence to enable the Council to make its decision based on Y’s best interests.
- The Council wrote to Mrs X on 9 November 2016 with its decision. It said it had not been possible to gather enough evidence to make an informed decision about what school year Y should start in 2017. It said Mrs X should make an in year application for Y to restart school in year one in September 2017. It said that once Y started school, it could evaluate how she coped and whether she would benefit from moving back into reception.
- Mrs X then obtained letters from a consultant paediatrician, her GP and her nursery. These all supported her request for Y to start reception in September 2017 to allow more time for her condition to improve. She wrote to the Council in December 2016, enclosing this evidence, asking for it to agree a reception start next year.
- The Council wrote to Mrs X in January 2017 to say to had considered the additional information and, based on this, it now agreed her request for Y to start in reception in September 2017.
- In its reply to my enquiries the Council said, in summary that:
- It had taken its decision in line with the Code.
- It had considered Mrs X’s request on its merits, based on available evidence.
- Any request to delay a child’s start in reception “must be on an exceptional basis”.
- Of 46 requests for delayed entry to reception in 2017, it had agreed 27.
- Mrs X had the right to decide Y would not start school until she reached compulsory school age in September 2017. In those circumstances the admission authority had to decide which school year (reception or year one) would be in Y’s best interests to start in September 2017 when Y was five.
- The admission authority refused Mrs X’s request in November 2016 without making this decision. It said it did not have enough evidence to make an informed decision. Whilst it is difficult for admission authorities to make this decision so far in advance of the child’s admission to school, this is the decision it was required to make.
- The admission authority also did not show how it considered the impact of Y starting school in year one in September 2017 without first having completed the reception year.
- The Council’s position that “requests to delay a child’s start in reception must be on an exceptional basis” is not the test required by the Code. The Department for Education view is that requests should be agreed in any circumstances where it is in the child’s best interests to do so. The decision letter did not tell Mrs X that she could complain about that decision.
- The Council’s decision making approach was therefore flawed. These faults caused Mrs X distress. However once she provided additional medical and educational evidence the Council properly considered that evidence and agreed her request.
- The Council is concerned that our view will mean it will be very limited in the decisions it can reach and may be at risk of taking a blanket approach to any parental request for deferred entry. We do not agree. This will be a matter for the professional judgment of those responsible for making that decision at the time, after consideration of the individual merits of the case. The Council can reach the view that the child’s level of development and the support the school could provide in year one could make entry into that year appropriate and in the child’s best interests
- The Council should apologise to Mrs X for its fault. It should issue guidance to staff in its Company to ensure they are properly following the Code and government guidance when determining applications for summer born children to be educated outside their normal age group. It should review applications received concerning delayed school entry for summer born children in September 2018 and consider whether they have correctly followed the Code and guidance. If it finds decisions that have not correctly followed the Code it should remake them.
- To remedy Mrs X’s and Y’s injustice the Council has agreed that within one month it will:
- Apologise to Mrs X for not properly considering her request in 2016.
- Issue guidance to staff to ensure they are properly following the Code and government guidance when determining applications for summer-born children to be educated outside of their normal age group.
- Review all pending and recent decisions in the last 12 months covering requests from parents of summer born children for delayed entry reception year school entry in September 2018
- Consider whether those decisions have properly followed the Code and government guidance. Remake decisions that have not done so.
- Advise the Ombudsman of its action to carry out this recommendation.
- I have completed my investigation. I have found evidence of fault causing injustice. The Council has agreed actions to remedy injustice caused and prevent injustice to others arising from that fault.
Investigator's decision on behalf of the Ombudsman