Summary: The Council failed to properly consider whether it was in the complainant’s son’s best interests to join reception or year one when he starts school in September 2020. The Council has agreed to review its decision, issue guidance to its staff, review the guidance for parents on its website and reconsider all its recent decisions to ensure they comply with legislation and statutory guidance.

The complaint

1. Mrs B complains that there were failings in the way the Council determined her application for her summer-born son to join reception, rather than year one, in September 2020.

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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. 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

6. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• considered the documents the Council has provided;
• considered the School Admissions Code and guidance published by the Department for Education; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Legislation

7. 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, which is the term following their fifth birthday.
8. 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 01 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.
9. The Code states that admission authorities must make such decisions on the basis of 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, whether they have previously been educated out of their normal age group, 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.

Government Guidance

10. 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”.
11. The guidance states that admission authorities will be required to take account of the child’s individual needs and abilities and to consider whether these can best be met in reception or year one. This should involve taking account of the potential impact on 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.
12. 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, and 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.
13. In March 2018, the Department for Education confirmed that it does not consider requests for summer-born children to be admitted to reception at the age of five 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. It says the Code requires that such requests are agreed in any circumstances where it is in the child’s best interests to do so.
14. 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 year the child becomes four. The Department has confirmed that the admission authority must clearly explain why they decided, on the basis of the circumstances of the individual case, it would be in the best interests of the child concerned 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.

Background to the complaint

15. Mrs B’s son, S, turned three years old in August 2018. In December 2018, Mr and Mrs B submitted a ‘deferred entry’ application to the Council. This is the term the Council uses for applications for summer-born children to start school in reception a year after their normal age group.
16. Mr and Mrs B told the Council that they would be sending S to school in September 2020, the term following his fifth birthday, and asked if he could start in reception at that time. Mr and Mrs B explained why they considered S would not be ready to attend school earlier and why it would be in his best interests to start in reception.
17. Mr and Mrs B provided a supporting letter from S’s nursery and signed confirmation from the head teachers of three primary schools that they agreed for S to start in reception in September 2020. The head teacher of their preferred primary school said that it was clear that S would benefit from another year at nursery due to delayed developmental milestones.
18. In February 2019, the Council wrote to Mr and Mrs B with its decision to refuse their application. It said that it had decided to refuse the application because the information they provided did not evidence that S was not meeting the required milestones and it was therefore not in S’s best interests to be educated outside of his chronological peer group. It told Mr and Mrs B that if they decided to delay S’s entry into school until September 2020, he would have to join the year one cohort at that stage, and it was therefore in his best interests to start school in reception during the 2019/2020 academic year.
19. Mr and Mrs B complained to the Council that it had failed to comply with the law and government guidance when it considered their application. They said that they had decided that S was not starting school until September 2020 and the Council had not asked itself the correct question, which was whether it was in S’s best interests to start school in reception or year one in September 2020.
20. Mrs B also complained that the way the Council had considered their application was unfair. She said that some applications had been automatically accepted, while others were considered by a panel.
21. In the Council’s response to Mr and Mrs B’s complaint, it explained that its reasons for refusal were linked to S’s longer-term education and it referred to guidance on its website. It said that secondary school qualifications and funding are linked to age, and the risk in deferring the start of school is that a child will reach the end of compulsory schooling and funding but not be in a position to take the qualification exams because they have not completed the course.
22. The Council confirmed that the panel’s view remained the same, that as S seemed to be meeting the normal milestones, and given the risk to his longer-term education, it was in his best interests to start school in September 2019.
23. The Council also had a meeting with Mrs B on 9 July where it confirmed that it did not consider it was in any child’s best interests to miss the reception year, but that would happen if Mr and Mrs B did not send S to school until September 2020. It repeated that it considered it was in S’s best interests to start in reception in 2019 due to the longer-term risks to his education.
24. During the meeting, the Council also confirmed that it had been automatically agreeing all deferral requests, but part way through the year it decided to create the panel to consider the rest of the applications.
25. Mr and Mrs B remained dissatisfied and escalated their complaint to the final stage of the complaints procedure. During this review stage, the Council does not reinvestigate the complaint, it considers how the first stage of the process was carried out and if the conclusions were reasonable.
26. In the Council’s final response, it said that it was not within the remit of the complaint review to decide whether the Council’s decision on the deferral application was correct. It accepted that their complaint had not been dealt with properly or fairly. It said that there had been extensive delays, poor communication and the change in process part way through the year was unfair because all applications were not treated in the same way. The Council has apologised and agreed to provide refresher training in complaint handling.

Analysis

27. The Council decided that it was in S’s best interests to start school in reception before he reached compulsory school age. This was not the decision it was required to make. It needed to decide whether, after reaching compulsory school age, it would be in S’s best interests to start in reception or year one. The Council did not do so; this was fault.
28. The Council failed to consider the potential impact of S being admitted to year one in 2020 without first having completed reception, or that S was already being educated outside of his normal age group. The Council’s decision letter fails to clearly set out how it took account of the parents’ or head teachers’ views. This was fault.
29. Some of the information in the Council’s correspondence and guidance is incorrect or misleading. In one of the Council’s complaint responses, it said that secondary school qualifications and funding are linked to age and the risk in deferring the start of school is that a child will reach the end of compulsory schooling and funding but not be in a position to take the qualification exams because they have not completed the course, because they have a year less in school. This is not the case. While a summer-born child who has been educated out of their normal age group will cease to be of compulsory school age at the end of year 10, there is no age requirement when children must take GCSEs and secondary schools are funded for the number of pupils they have in years 7 – 11, regardless of their age.
30. Ms B has provided a copy of a letter the Council sent on 27 March 2019, in response to a freedom of information request. In this letter, the Council said that it is the head teacher’s decision whether or not to accept deferred entries to school, not the Council’s decision, and the head teacher can choose whether to follow the panel’s recommendation. This is not the case. It is the admissions authority that needs to make the decision on the application. However, once a child has been admitted to a school, it is for the head teacher to decide how best to educate the child.
31. The Council’s published guidance relating to the education of children outside of their chronological year group says that deferred entry may mean an extra year with an alternative early years provider, and funding will only be available for 15 hours per week. This is not the case. All three and four year olds, and the most disadvantaged two year olds, are entitled to 15 hours of early education provision per week for 38 weeks of the year. Since 2017, three and four year olds with working parents have been entitled to 30 hours of early education per week for 38 weeks of the year.
32. The Council’s guidance also suggests that it will not agree an application unless the child’s personal development, social skills or educational skills are significantly delayed. The letter from the Department for Education referenced above makes it clear that requests for summer-born children to be educated outside of their normal age group should be agreed in any circumstances where it is in the child’s best interests to do so, and not only in very limited circumstances. I consider the Council is failing to properly follow the Code and government guidance when assessing applications.
33. The Council should apologise to Mrs B for the failings identified in this case. It should issue guidance to its staff 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 the applications it has received for summer-born children to start in reception in 2020 and 2021 and consider whether decisions have been reached in accordance with the Code and government guidance. If it finds any that have not, it should remake them.
34. The Council may wish to also check its terminology because its definition of deferred entry and delayed entry differs from that of the Department for Education.

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Agreed action

35. Within four weeks, the Council will:
• Apologise to Mrs B for not properly considering her application;
• Review its decision and properly consider whether it is in S’s best interests to join reception or year one in September 2020. It will write to Mrs B with the outcome of its review, and properly explain how it has reached its decision; and
• 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.
36. Within twelve weeks, the Council will:
• Review the applications it has received for summer-born children to start in reception in 2020 and 2021 and consider whether decisions have been reached in accordance with the Code and government guidance. If it finds any that have not, it will remake them.
• Review its guidance for parents to ensure it accords with the Code and government guidance.

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Final decision

37. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman