Summary: Ms X complains the Council did not properly consider her request for her summer born daughter to delay starting school into Reception until after she reaches compulsory school age. She says the Council has not explained how entry into Year 1 in September 2020 would be in her best interest. The Ombudsman finds fault with the Council’s decision-making process. We have recommended the Council apologise, remake its decision, and review its pending decisions in other similar cases.

The complaint

1. Ms X complains the Council did not properly consider her request for her summer born daughter, A, to delay starting school into Reception until after she reaches compulsory school age. Ms X says the Council has failed to explain how entry to Year 1 in September 2020 would be in A’s best interest as opposed to a delayed start in Reception. She says the Council said it would not be detrimental, but the admission code says local authorities must state how a decision is in the child’s best interest.

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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 spoke with Ms X and considered the information she provided.
7. I considered the information provided by the Council.
8. I sent a draft decision to Ms X and the Council and considered their comments.

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What I found

9. 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 1, at age five.
10. 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.”
11. The School Admissions Code sets out the matters the authority should take into account 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.

12. When telling a parent of their decision, admission authorities must set out clearly the reasons for their decision.

Government guidance

13. 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.
14. The guidance says admission authorities must make decisions based on individual needs and abilities, and consider whether these can be best met by the child starting school in Reception or Year 1. They should also take account of the potential impact on the child of being admitted into Year 1 without first having completed the Reception year.
15. 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.”
16. The guidance says that in general, children should be educated in their normal age group and only outside of their usual 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 the usual age group. Parents should be confident that, if they decide to defer school entry, 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

17. 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. However, as this has not yet happened, it cannot form part of the Ombudsman’s considerations. The existing school admissions code and non-statutory guidance therefore continue to apply, and these documents will form the basis for the Ombudsman’s decision making.

What happened

18. In January 2019, Ms X applied for delayed entry into Reception for her daughter, A. Ms X told the Council she felt A was much closer in terms of development to the children born in the next cohort. Therefore, she felt it was detrimental to A’s personal, social, and academic development and wellbeing to start school in September 2019. She also sent the Council information from A’s speech and language team (SALT) which noted A had a slight delay in word finding capabilities.
19. In March 2019, the Council rejected Ms X’s application. The Council outlined its decision that A could cope with Reception with her cohort in September 2019 as her needs could be met by the school. The Council also noted it would not be in A’s interest to delay admission, or to start in Year 1 having missed the Reception year in 2019/2020.
20. Ms X made a complaint about the Council’s decision. She said the Council had not made its decision in line with the school admissions code because it had not set out which year group would be in A’s best interest to start in September 2020.
21. The Council responded to the complaint in April 2019. The Council again said it was in A’s best interest to start in Reception in September 2019 and not for her to start in Year 1 in September 2020 having missed the Reception year in 2019/2020, or for her to start Reception in September 2020.
22. Ms X asked the Council to investigate her complaint at stage two as she felt the Council had still not explained how starting in Year 1 in September 2020 was in A’s best interest. She said the Council had failed to address any of her points of concern and had merely repeated what had been said in the decision letter.
23. The Council responded to Ms X’s complaint in June 2019. The Council said the headteacher and the school are accustomed to accommodating children in the Reception class who present with different needs, abilities, and levels of development. The Council said it was therefore its position that A could start school in September 2019 with her chronological peer group, rather than year 2020. The Council said it took the view that it would not be detrimental for A to enter Year 1 in September 2020.
24. Ms X was not happy with the Council’s response and made a complaint to the Ombudsman. In response to my enquiries, the Council provided copies of internal emails. In one email, the Council noted it had reconsidered and changed its decision. The Council prepared a draft stage two complaint response.
25. In this draft response, the Council still noted its position that A could start school in September 2019 with her chronological peer group. However, the Council also said having taken account all the relevant information, guidance, and statutory obligation, it was not possible for the Council to say missing the Reception year and starting in Year 1 in 2020 was in the best interest of A. The Council also noted it accepted that the Early Years curriculum in the Reception year is important.

Analysis

26. Parents of summer born children can ask for their child to start school at age five in Reception. However, 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 the child’s best interest to start in Reception or Year 1. The council must make this decision taking account all relevant considerations, including the factors set out in the admissions code and the potential impact of admission to Year 1 without first having completed Reception.
27. The Council set out its view that it was in the best interest of A to start in Reception in September 2019. This does not answer the relevant question. What the Council has considered here is whether it is in A’s best interest to start Reception in September 2019 or 2020. However, the question the Council must consider is whether it would be in the best interest for A to start in Reception or Year 1 in September 2020.
28. The Council said it was not detrimental to A to start in Year 1 in September 2020. However, ‘detrimental’ and ‘best interest’ are not the same. It may not be detrimental for A to start in Year 1, but this does not necessarily mean it is in her best interest. The Council has not explained why it is in A’s best interest to start in Year 1 in September 2020.
29. The Council has also not demonstrated how it considered A’s individual needs and abilities. Ms X submitted information from A’s speech and language team, but the Council did not appear to have considered this information when it made its decision. Equally, the Council has not set out its consideration of the potential impact on A being admitted into Year 1 without first having completed Reception year.
30. Further, the evidence shows the Council had accepted, in April 2019, it could not say it was in A’s best interest to miss the Reception year and start in Year 1 in September 2020. It is unclear from the available evidence why the Council changed its position. However, this evidence shows the Council is aware of the relevant question it must address. This suggests the Council used the phrase ‘would not be detrimental’ intentionally because it could not explain why starting in Year 1 would be in A’s best interest.
31. I find fault with the Council’s decision making. I find the fault identified caused Ms X an injustice because she has been left uncertain as to whether the Council would have agreed to her request had it followed the correct decision-making process.
32. As it appears the Council has intentionally not addressed the correct question in considering Ms X’s application, I am mindful if the Council has taken the same approach for other families. Therefore, other families may also be affected by fault in the Council’s decision making.

Recommended action

33. To remedy the injustice caused by the fault identified, I recommend the Council complete the following.
34. Within four weeks of the final decision:

• Apologise to Ms X for failing to follow the correct decision-making process.
• Reconsider Ms X’s application for delayed entry, ensuring the decision is made in line with the school admissions code and government guidance.

35. Within three months of the final decision:

• Review all pending decisions covering requests from parents of summer born children for delayed entry to Reception year and consider whether those decisions have properly followed the school admissions code and government guidance. Reconsider all applications where the Council has not done so.
• For recent decisions made within 12 months of this final decision, the Council will only review its decision if a parent asks the Council to do so. Requests must be made to the Council within 2 months of the publication date of this final decision. The Council should consider whether its decision properly followed the school admissions code and government guidance. It should reconsider the application where it has not done so.

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Final decision

36. I find fault with the Council’s decision-making process. I have made recommendations and have completed my investigation.

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Investigator's decision on behalf of the Ombudsman