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

The complaint

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

Back to top

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)

Back to top

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 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.

Back to top

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. Mr and Ms B’s daughter, J, turned three years old in August 2018. In November 2018, Ms 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. Ms B told the Council that she would be sending J to school in September 2020, the term following her fifth birthday, and asked if she could start in reception at that time. Ms B explained why she considered J would not be ready to attend school earlier and why it would be in her best interests to start in reception.
17. Ms B provided signed confirmation from the head teachers of four primary schools that they agreed for J to start in reception in September 2020.
18. In February 2019, the Council wrote to Ms B with its decision to refuse her application. It said that it had decided to refuse the application because the information she provided did not evidence that J was not meeting the relevant development milestones and it was therefore not in J’s best interests to be educated outside of her chronological peer group. It told Ms B that if she decided to delay J’s entry into school until September 2020, she would have to join the year one cohort at that stage, and it was therefore in her best interests to start school in reception during the 2019/2020 academic year.
19. Mr and Ms B complained to the Council that it was in breach of its statutory duty and had failed to act in accordance with government guidance. They said that the Council had not asked itself the correct question, which was whether it was in J’s best interests to start school in reception or year one in September 2020.
20. Mr and Ms B also complained that the way the Council had considered their application was unfair and did not treat all applicants equally. They said that the Admissions Team had introduced a panel in December 2018 to consider applications, and applications considered before December were assessed differently.
21. In the Council’s response to Mr and Ms B’s complaint, it confirmed that it was recommending that J start school in September 2019. It said that deferred entry is not an automatic right for parents and when entry is deferred, there are risks for the child’s education in the long term.
22. In April 2019, Mr and Ms B asked to escalate their complaint to the second stage of the complaints procedure. The Council then wrote to Ms B in May 2019 and said that its initial response did not include the level of information that she should have received. It said that it had asked for the stage one response to be rewritten to include this information.
23. In the Council’s revised stage one response, dated 12 June 2019, it provided more detailed reasons for refusing Ms B’s application. The reasons included there being no access to SEND (special educational needs and disability) services in a second-year nursery placement except via an EHC (education, health and care) plan, and there being potential disadvantages to a child who is educated out of year group.
24. The Council explained that it will only agree a deferment in exceptional circumstances and the information from Ms B’s application did not show that J’s circumstances were exceptional.
25. The Council said that it did not think it would be in J’s best interests to start school in year one, and therefore it remained its recommendation that J start school in reception in September 2019.

Analysis

26. The Council decided that it was in J’s best interests to start school in reception before she 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 J’s best interests to start in reception or year one. The Council did not do so; this was fault.
27. The Council failed to consider the potential impact of J being admitted to year one in 2020 without first having completed reception. The Council’s decision letter also fails to clearly set out how it took account of the parents’ or head teachers’ views. This was fault.
28. 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.
29. The Council’s revised stage one response says that that it will only agree a deferment in exceptional circumstances. 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.
30. The Council also failed to properly deal with Mr and Ms B’s complaint. The Council took too long to respond and failed to address many of the points they made. The Council also told Ms B that it had dealt with all applications for the September 2019 intake in the same way. But in response to a similar complaint from another parent, it accepted that the process was unfair because it had changed part way through the year and it automatically granted permission to the earlier applications.
31. The Council should apologise to Ms 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 properly in accordance with the Code and government guidance. If it finds any that have not, it should remake them.

Agreed action

32. Within four weeks, the Council will:
• Apologise to Ms B for not properly considering her application;
• Review its decision and properly consider whether it is in J’s best interests to join reception or year one in September 2020. It will write to Ms B with the outcome of its review, and properly explain how it 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.
33. 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.

Back to top

Final decision

34. I have completed my investigation and uphold Ms 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.

Back to top

Investigator's decision on behalf of the Ombudsman