The Ombudsman's final decision:
Summary: The Ombudsman upholds Ms X’s complaint about the way the Council dealt with her request to defer her daughter starting school in the reception year. The Council applied the wrong test in its decision making. It will retake the decision, apologise and make a payment to Ms X to recognise the impact of the fault, and review other decisions about summer born children to ensure they were made correctly.
- Ms X complains the Council has not properly dealt with her request for her daughter, Y, to start school in the reception year, having delayed her entry to school until she reached compulsory school age. As a result, Y does not have a school place.
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)
- 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 have considered the complaint made by Ms X and the documents she provided.
- I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
- I have also taken account of the Ombudsman’s guidance for councils on admitting summer born children to school, published in December 2018.
- Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
School Admissions Code
- 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 their normal age group. This includes 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 admission 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 headteachers. When telling a parent of their decision, admission authorities must clearly set out 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 request is made too late for this to be possible.
- Non-statutory guidance supports councils in decision making. Admission authorities should follow the advice given in non-statutory guidance or explain their reasons for not doing so.
- The Department for Education published non-statutory guidance, ‘Advice on the admission of summer-born children – For local authorities, school admission authorities and parents’, in 2014. This is to help admission authorities deal with requests for summer-born children to be educated out of their normal year group.
- Admission authorities, in this case the Council, should make clear in their admission arrangements the process for seeking admission outside the normal year group.
- 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 take account of the potential impact on the child of being admitted to year one without having completed the reception year. The head teacher’s views are an important part of this consideration.
- The guidance notes that children born prematurely may, because of being born before their due date, fall into a different age group that if they had been born at full term. Admission authorities should take account of the age group the child would have fallen into if born on time.
- The guidance says admission authorities can expect parents to provide information to support their request. There should be no expectation that parents will obtain professional evidence 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, parental requests for summer born children are different from any other request for admission out of the usual age group. Parents of summer born children must be confident the decision about the year group they should be admitted to will be made in the child’s best interests.
- The guidance recommends admission authorities put in place a process to consider requests for delayed entry. It recommends parents apply for a place for their child in the normal admissions round but apply for the child to be admitted out of the normal age group at the same time. Where an admission authority agrees to a parental request for delayed start into reception then the parents must make a new application as part of the normal admissions round the following year.
- There is no right of appeal if the Council offers a place that is not in the year group a parent would like. However, parents can complain about an admission authority’s decision not to admit a child outside their normal age group. They can approach the Ombudsman if they are unhappy about the way their complaint is handled.
Ombudsman’s guidance for practitioners
- The Ombudsman’s guidance says decision letters should clearly set out how the Council made its decision, including how it considered any evidence provided by the parent. The Council can decide it is in a child’s best interests to start in year one, but it would need to explain the decision with reference to any support available within the school.
- The Council is the admission authority for community and voluntary controlled schools. The Council’s admission arrangements for 2019-2020 say, “Parents can request that the date their child is admitted to school is deferred until later in the academic year up to the beginning of the term in which the child reaches compulsory school age”.
- The Council provides information about deferred entry to school, admission outside normal age range, and summer born children on its website. It says summer born children who wish to start school in the September after their fifth birthday would start in year one and miss reception year. There is no information about seeking admission outside the normal year group in the Council’s booklet for parents about starting school.
- Ms X’s daughter Y is a summer-born child. She was delivered two weeks early; her due date would have placed her in the next school year.
- Ms X applied for a school place for Y in the normal admissions round, with an expected start date of September 2019. Ms X says there was no information provided about school entry for summer-born children as part of the application process.
- In late March 2019, Ms X became aware of the option for Y to defer entry. She contacted the Council in early April, before national offer day, and said she wanted to defer Y’s entry to school until September 2020. She cited Y’s prematurity and said she did not think Y would be physically or emotionally ready to start school in September 2019. She said she wanted Y to join the reception class in September 2020, rather than year one.
- The Council acknowledged Ms X’s request. It said it would liaise with the preferred school and “see if they are in agreement with such a request”. It said a decision was unlikely before national offer day. The Council said if it refused the request, Ms X would need to decide whether to accept an offer of a reception place for September 2019. Alternatively, she could turn down this offer and make an in-year application for admission to year one in September 2020.
- Ms X approached her preferred school and discussed her request with the headteacher, who she says was open to Y joining in reception 2020. However, the headteacher said it was the Council’s decision as the admission authority. The Council told Ms X that she was entitled to apply for a place out of year but if Y did not secure a reception place in her chosen school, she would be required to start in year one in September 2020.
- In early July, the Council wrote to Ms X. It declined her request for Y to be educated out of age group. It said it had considered Ms X’s views and those of the headteacher. The headteacher had explored Ms X’s reasons for the request in detail and decided there was no evidence to suggest Y would be “outside the normal parameters expected for her natural peer group”. The Council said developmental delays were often reduced by interaction with a child’s peer group. It said it had offered Ms X a place at her chosen school for Y for September 2019 and she should tell the Council if she wished to accept or decline it.
- In early September, Ms X complained to the Council. She was unhappy with the decision not to admit Y into reception in September 2020. She said she had not been told about the option to defer entry when applying for a school place. She said the Council’s decision was based on the views of the headteacher and not on the best interests of her child, and on a lack of medical evidence, which she was not required to provide.
- The Council responded three weeks later. It did not consider Ms X’s complaint under its complaints procedure. It said information about admission outside the normal age range and summer born children was available on its website. It said without an educational psychologist or medical report it was guided by the views of the headteacher. The Council wrote, “this does not mean that we believe it would be in Y’s best interest to miss reception and enter straight into year one”. It said the school was holding a reception place for Y for September 2019.
- Ms X wrote to the school in October. She said Y had recently started in nursery and she outlined some difficulties Y experienced. She said these showed Y was unsuitable to have started in reception in September 2019. She reiterated her reasons for wanting Y to start in reception in 2020 and provided supporting information from Y’s nursery. She asked the headteacher to reconsider his decision.
- The Council wrote to Ms X again in November 2019. It said its decision had not changed and:
“The headteacher…is confident Y’s needs can be accommodated in the reception class in his school. This does not mean that we believe it would be in Y’s best interests to miss reception and enter straight into year one but…Y is within the normal parameters of her natural peer group which started in reception in September 2019.”
- It advised Ms X that if she declined the reception place for September 2019, she would need to reapply for a school place in preparation for Y turning five. Ms X declined the school place and complained to the Ombudsman.
- The Council contacted Ms X in June 2020 to offer Y a place in year one for September. Ms X asked the Council for time to decide. When she contacted the Council again, it said it had offered the place to somebody else. Y is on the waiting list for a place in year one at her chosen school.
- The Council has applied the wrong test throughout its communications with Ms X and decision-making for Y. The decision to be made was not whether Y should start in reception in 2019 or 2020. Ms X has exercised her legal right to defer her daughter starting school until she reached statutory school age. The question to be answered was whether Y should start school in reception or year one in September 2020. The Council failed to recognise this, and this was fault.
- The Council has not decided the key question of whether Y should join reception or year one in September 2020. The Council has accepted it does not consider it in Y’s best interests to miss reception but has recently offered Y a place in year one. It has not said how it would take account of the impact on Y of joining year one in 2020 having missed her reception year, or what support might be available to her. This was fault.
- In its correspondence with Ms X, the Council has not said how it took account of the information she provided about her daughter. It says the information was considered by the headteacher; but the decision about which class Y should enter is the Council’s to make, not the headteacher’s. The Council did not show how it had considered the individual circumstances of the child or that the decision was in her best interests. It took no account of her prematurity and the age group she would have been in if she had been born at full term. This was fault.
- The Council told Ms X that if she deferred entry and did not secure a reception place for Y for September 2020, she would have to take up a place in year one. This was fault. As the admission authority, if the Council decided it was in Y’s best interests to be admitted to reception in September 2020, it should honour this regardless of which community or voluntary controlled school she might eventually be offered a place in.
- The Council’s responses to Ms X showed a further misunderstanding of the guidance. It said without medical reports it would be guided by the views of a headteacher. The Council must take account of the headteacher’s views, but they are not definitive. They must be considered alongside the needs and abilities of the child and the impact of not completing reception before starting year one. The Council failed to show how it did this and this was fault.
- The Council failed to deal with Ms X’s concerns as formal complaints despite her saying she wished to complain and saying she would contact the Ombudsman. This was fault and prevented her complaint being considered in line with the Council’s complaints procedure.
- The information on the Council’s website about deferred entry for summer born children is incorrect. The Council must consider each application on its own merits. It cannot apply a blanket approach which places all summer born children who choose to defer their start at school into year one. This information is misleading and is fault.
- The Council’s admission arrangements refer to deferred entry but not to admission out of year group. The Council’s admission arrangements do not explain the process for seeking admission outside the normal year group. This is not in line with the guidance and is fault.
- These faults have caused confusion and frustration for Ms X. Ms X has tried to explain the errors in the Council’s decision-making on several occasions, but the Council has not properly taken account of her concerns. Ms X has struggled to make decisions about sending Y to school when places have been offered because of her uncertainty about the Council’s handling of her request to defer Y’s start in reception. Consequently, Y does not have a school place.
- In my draft decision I recommended the Council make the decision about Y’s deferred entry to school, in line with the Code and guidance, and tell Ms X its decision. The Council decided Y should be admitted to reception as an excepted pupil and she is currently awaiting a start date.
- Within one month of this decision the Council will apologise to Ms X for failing to make decisions correctly and pay her £150 for the time and trouble in bringing her complaint.
- The Council will also review all decisions in the 2020 admission rounds for parents of summer born children asking to delay entry to reception year. It should consider if those decisions have properly followed the Code and guidance. It should retake decisions that have not done so.
- Before 15 January 2021, the Council will revise the information on its website to ensure it is compliant with the Code and guidance on summer born children and deferred entry to school. It should include:
- Information on how a parent or carer submits a request to defer entry;
- Information about asking for entry into reception or year one and how the Council will reach a decision; and
- Information about what to do if the parent or carer is unhappy with the Council’s decision.
- I uphold this complaint. Ms X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman