Summary: Mr X complains about the Council’s refusal to allow his summer born twins to start school at age 5 in Reception year, causing them injustice. The Ombudsman finds fault in the Council’s decision making process. The Ombudsman recommends the Council apologises, makes its decision again in line with the School Admissions Code and Government Guidance and acts to prevent recurrence.

The complaint

1. Mr X complains about the Council’s refusal to allow his summer born twins to start school at age 5 in Reception year. He disagrees with the Council’s decision and believes it has not followed the proper decision making process. He says the decision is not in his children’s best interests.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
6. 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)

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How I considered this complaint

7. I spoke to Mr X and considered the information provided. I gave Mr X and the Council the opportunity to comment on a draft of this decision and considered their comments.

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What I found

8. The parents of a summer born child may choose not to send their child to school until the September following their fifth birthday. Parents can also ask the school admissions authority to agree to admit their child to reception year, rather than year one, at age five.
9. A parent cannot insist the authority admit their child to a particular year group. But, upon a parent’s request “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.”
10. The School Admissions Code sets out the matters the authority should consider when making a decision. This will include taking account of:
• the parent’s views;
• information about the child’s academic, social and emotional development;
• where relevant, their medical history and the views of a medical professional;
• whether they have previously been educated out of their normal age group;
• whether they may naturally have fallen into a lower age group if it were not for being born prematurely;
• the views of the head teacher of the school concerned.
11. “When informing a parent of their decision on the year group the child should be admitted to, the admission authority must set out clearly the reasons for their decision.”

Government Guidance

12. The Department for Education has produced non-statutory guidance on this issue – Advice on the Admission of Summer Born Children. The Ombudsman expects councils to follow this guidance or evidence why they have chosen to depart from it.
13. The guidance says admission authorities must decide based on individual needs and abilities, and consider whether these can best be met by the child starting school in reception or year one. They should also take account of the potential impact on the child of entering year one without first completing reception year. To make that decision the guidance says:

“It is reasonable for admission authorities to expect parents or guardians to provide them with information in support of their request – since without it they are unlikely to be able to make a decision on the basis of the circumstances of the case.”

14. The guidance says in general, children should be educated in their normal age group and should only be educated out of this age group in very limited circumstances. However, it goes on to say parental requests for summer-born children are “different from any other request for admission out of age group, as it is only in these circumstances that the child is being admitted to school for the first time.”
15. It makes clear “Parents must be able to make a decision about whether their child is ready for 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.”

Ministerial statement

16. The Minister of State for Schools issued a statement in 2015, setting out his intention to amend the School Admissions Code so that summer born children could automatically be admitted to reception at age five where parents want this. The Minister has since reconfirmed his commitment to making the change when Parliamentary time allows; but this has not yet happened, so cannot form part of the Ombudsman’s considerations.
17. The Code and non-statutory guidance therefore continue to apply, and these documents will form the basis for the Ombudsman’s decision making.

Council policy

18. The Council publishes a guide for parents which says:

“When considering such requests; the admissions authority would require sight of supporting professional evidence of the educational, social and emotional benefits of the child working outside the chronological age group from independent professionals involved with the child and would consider the views of the current early year’s setting and preferred schools, if appropriate, as to whether the child’s needs could be met within the normal age group.” 

What happened

19. In December 2018 Mr X asked the Council to allow his premature and summer born twins to start school at age 5 in Reception year. He explained their birthday would have fallen in September but their birth was induced four weeks’ early. He felt they would struggle to meet the academic expectations of school if they started age 4, as they would be relatively young compared to their peers. And he did not want them to miss out on the development opportunities afforded by Reception year. Plus, he said English is their second language which would compound matters. Mr X enclosed supporting documents including;
• A letter from the children’s nursery. I note this repeats Mr X’s concerns rather than adding any concerns of the nursery itself.
• A letter from the primary school’s headteacher. This says she has no objection but does not know the children and has not assessed their needs.
• A copy of the 2015 Ministerial statement setting out the Government’s intention to amend the School Admissions Code.
• A statement from a baby charity in support of premature children entering school based on their expected due date.
20. The Council acknowledged receipt of the request. It said the school admission panel would review the documents provided. If the panel agreed it was in the best interests of the children to start reception in September 2020, it would ask Mr X to reapply to Reception next year. The Council also asked Mr X to provide any further documentation for consideration.
21. In January 2019 the Council told Mr X its decision to refuse his request. It said there was not enough evidence to show it was in the children’s best interests to work outside of their chronological year group. The Council went on to say it believed schools should be able to ensure provision meets the needs of all children. Though it would allow a child to enter school in a different age group where there was evidence:
• “that the child’s personal, emotional and social maturity is sufficient to establish positive peer relationships”
• “that demonstrates the child’s needs are so exceptional or show significant delay in intellectual development or educational skills across all subject areas”;
• “that it is not reasonable to expect curriculum differentiation within their chronological year group to be successful”.
• “that the child’s physical maturity does not and is unlikely (in the future) to make the child developmentally different from their proposed peer group in such a way as to impact negatively on their self-esteem or self-awareness (including consideration of puberty)”.
22. The Council explained issues may arise later where a child starts school outside their age group. It confirmed it would consider Mr X’s application for his children to start Reception in 2019. But it would also consider any further evidence provided by Mr X to demonstrate it was in his children’s best interests to start Reception in September 2020.
23. Mr X asked the Council about its appeal process and what evidence it expected him to provide.
24. The Council referred Mr X to its guidance. It explained it took account of evidence of the children’s personal, emotional and social maturity. Mr X had not provided any evidence of his children’s current attainment against expected levels for their age or evidence that it would be in their best interests to delay their start to school.
25. In February Mr X provided a statement from an education consultant. I note this sets out research about the development issues that may be faced by premature twins in general. It notes Mr X’s children are premature twins, late summer born and learn English as an additional language.
26. The consultant says:

“In terms of physical, linguistic, cognitive, social and emotional development they are far more similar to their peers born in the autumn of 2015 than they are to the children in the year above. [The children] would struggle hugely if they had to start school shortly after their fourth birthday, even on a part-time basis.”

27. The consultant asks the Council to agree Mr X’s request or give reasons why it believes it to be in the twins’ best interests to start in Year 1 in September 2020.
28. Mr X later provided statements from head teachers at two other primary schools. These statements show they appreciated Mr X’s concerns.
29. The Council provided a final response in March. It explained there was not enough evidence to overturn its previous decision. Although it would not encourage any child to miss Reception year there was insufficient evidence it was in his children’s best interests to start school outside their chronological age group. And, there was no evidence their educational ability would present difficulties within the correct year group.
30. Mr X complained the Council had not decided in line with the Code. He said:
• The Code gave parents the right to ask for their summer born children to start school in Year 1 and they did not need medical evidence.
• The Council had failed to say whether it would be in the children’s best interests to start school in Reception or Year 1 when they start in September 2020.
• The criteria the Panel considered are irrelevant to summer born children. They appear nowhere in the Code or guidance.
• There have been several recent Ombudsman decisions that have upheld parents’ complaints that the admission authority has failed to address the correct question, which should be: ‘Which year group is it in my summer born child’s best interest to start in: Reception or Year 1? And why is this?’.
• The Council has instead considered whether his children can be provided for in Reception a full year earlier.
31. The Council responded to Mr X. It explained Mr X asked it to decide which year group his children should enter and it believed they should be allocated to the correct age cohort; Reception 2019. It considered it was in the children’s best interest to progress to Reception in September 2019 rather than delay their start at primary school. 
32. Mr X asked to go to stage 2. The Council considered his request and decided it would not investigate further as it considered the panel handed his request properly and its decision was binding. It referred him to the Ombudsman.

Findings

33. Parents of summer born children can ask for their child to start school at age 5 in reception. But a council does not have to automatically agree to the request. The council must decide if, after reaching compulsory school age, it would be in that child’s best interest to start in Reception or Year 1. The council must make this decision taking account of all relevant considerations, including the factors set out in the Code and the potential impact of admission to year 1 without first having completed reception. It is reasonable for a council to expect parents to provide it with information to support a request.
34. The Council considered the information provided by Mr X, which included the factors set out in the Code. However, the Council did not consider if it would be in the children’s best interests to start in Reception or Year 1 in 2020. Rather, the Council decided it was in their best interests to start in Reception in 2019. This does not answer the relevant question. The Council has also not taken account of the potential impact to the children of being admitted into Year 1 without first having completed Reception year. I therefore find fault in the Council’s decision making process.
35. Although the Council considered the information provided by Mr X, which included the factors set out in the Code, it has also referred to its own criteria for decision making, as referenced at paragraph 21. These do not appear to be in line with the Code. This suggests further fault.
36. Because of the Council’s fault, Mr X has been left uncertain as to whether the Council would have agreed to his request, had it followed the correct decision making process. I will recommend a remedy for this injustice. I am also mindful other families may be affected by fault in the Council’s decision making.

Agreed action

37. To remedy the injustice set out above I recommend the Council complete the following actions:
38. Within one month of the date of my decision:
• Provide a written apology to Mr X for failing to follow the correct decision making process;
• Make a decision again, in line with the School Admissions Code and Government Guidance and inform Mr X of the decision;
• Issue guidance to staff to ensure they are properly following the Code and Government Guidance.
39. Within three months of the date of my decision:
• Review all pending and recent decisions in the last 12 months covering requests from parents of summer born children for delayed entry to reception year and;
• Consider whether those decisions have properly followed the Code and Government Guidance. Remake decisions that have not done so.
40. The Council has accepted my recommendations.

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Final decision

41. I have found fault in how the Council decided whether to allow Mr X’s children to start Reception at age 5. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman