Summary: The Ombudsman found some fault by the Council on Miss D’s complaint of it failing to properly consider her late application request for her summer born daughter to start Reception class when she reached compulsory school age in September 2021. While an email it sent could have given clearer information about the process, this caused her no injustice. There was no fault on her remaining complaints about its decision.

The complaint

1. Miss D complains the Council, as admissions authority, failed to consider her application for her summer born daughter, E, to start reception when she reached compulsory school age in September 2021, because she had missed its deadline; as a result, she is anxious, frustrated, and worried by the possibility of E going in to Year 1 instead of Reception class.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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)

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Legislation and guidance

Education Act 1996 and The Education (Start of Compulsory School Age) Order 1998

5. A child begins to be of ‘compulsory school age’ following the prescribed day following his or hers fifth birthday, or if it falls on a prescribed day. The prescribed days are 31 December, 31 March, and 31 August. The term ‘summer born’ is used to refer to children born between 1 April to 31 August. These children are not required to start school until a full school year after the point at which they could first have been admitted. (Education Act 1996, section 8, and The Education (Start of Compulsory School Age) Order 1998)

School Admission Code (December 2014)

6. 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. Parents can decide not to send their child to school until they reach compulsory school age. This is the term following their fifth birthday. (paragraph 2.16)
7. 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 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 1. Admission authorities must make clear in their admission arrangements the process for requesting out of the normal age group. (paragraph 2.17)
8. The Code states that, ‘Admission authorities must make decisions on the basis of the circumstances of each case and in the best interests of the child concerned. This will include taking account of the parents’ view; 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 outside of their normal age group; and whether they may naturally have fallen into a lower age group if it were not for being born prematurely. They must also take into account the views of the head teacher of the school concerned.’ (paragraph 2.17A)
9. When telling a parent of their decision, admission authorities must set out clearly the reasons for their decision. (paragraph 2.17A)
10. Parents do not have the right to insist their child is admitted to a particular age group.
11. The Code says admission authorities must process applications for admission outside the normal age group as part of the main admissions round unless the parent’s request is made too late for this to be possible. (paragraph 2.17B)

Non-statutory guidance

12. Non-statutory guidance is intended to support councils in decision making. Admission authorities should follow the advice given in non-statutory guidance or explain their reasons for not doing so.
13. 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” 2014 (the ‘guidance’).
14. The guidance states 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 1. This should involve taking account of the potential impact of the child’s admission to Year 1 without first having completed the Reception year. The head teacher’s views are an important part of this consideration.
15. The guidance says admission authorities expect parents to provide information to support their request since without it they are unlikely to be able to decide on the basis of the circumstances of the case. There should be no expectation parents will obtain professional evidence they do not already have.
16. The guidance notes several factors associated with prematurity can delay a child’s development. Premature children tend to develop according to their due date, rather than their actual birth date which means their social, emotional, physical, and intellectual development may be behind their peers. Some may also have additional health problems because of their prematurity.
17. 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 of summer born children must be able to decide 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.
18. The guidance recommends admission authorities put in place a process to consider requests for delayed entry. It recommends this requires parents to apply for a place for their child’s normal age group at the usual time but also apply for the child to be admitted out of the normal age group at the same time. Where an admission authority agrees a parent’s request for delayed start into Reception then the parents must make a new application as part of the main admissions round the following year. The guidance says nothing specific about out of year applications for admission of summer born children.
19. Once a child has been admitted to a school it is for the Headteacher to decide how best to educate them.
20. Parents can make a complaint about an admission authority’s decision not to admit their child outside their normal age group. Admission authorities should have a complaints procedure to deal with this. If parents are unhappy with how an admission authority has handled their complaint, they can complain to us.

Council’s admission policy (Admission Arrangements for Redbridge Community Primary and Secondary schools 2020-2021)

21. The admission policy states:

• All pupils for entry to Reception in September 2020 must be submitted by 15 January 2020 at the latest (section 1.2);
• For summer born children, it notes admission authorities are required to provide for the admission of all children in the September following their fourth birthday. Some parents will have concerns about whether their child will be ready for school at this point and will consider postponing their entry until compulsory school age. For this group it would be September 2021. Parental requests for admission to Reception, rather than Year 1 at the age of 5, must be made by 15 January 2020. (paragraph 1.6)
• Parents will receive a response to their back class request before 16 April 2020. (Note ii)

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How I considered this complaint

22. I considered all the information provided by Miss D, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Miss D and the Council. I considered their responses.

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What I found

23. In December 2019, Miss D asked the Council about her summer born daughter, E, starting Reception class in September 2021, rather than 2020.
24. In January, the Council told her she still had to make an application for this academic year through its website before 15 January 2020. It said:

‘The application must be made before the closing date of the 15th January 2020. Once you have made this application please complete the attached back class application request and forward for my attention’.

25. The email went on to say she would receive its decision before 16 April.
26. In April, the Council offered E a Reception place at the school for September 2020, not 2021. The Council claims Miss D accepted the offer and provided a copy of an automated response sent to her four days later. This thanked her for accepting the place offered. Miss D denies accepting this place.
27. In May 2020, Miss D completed and returned an application back class request form (the request) to the Council for E to start Reception at her preferred school in September 2021. She wanted her to start then because E is summer born who was born 7 weeks premature. She said she had the support of the school’s Headteacher. In response to my draft decision, Miss D confirmed she did not share medical evidence with the Council when she sent the request. She explained she saw no requirement to do so.
28. The Council told her she had missed its deadline for making such a request. It advised her to make an in-year admission application to Year 1 after E’s fifth birthday. It also told her it would contact her with the outcome of her request when it had reached a decision.
29. In June, she chased the Council as she had heard nothing further.
30. Miss D contacted the Council in August, confused as she had still heard nothing but, discovered its systems showed she accepted a place offered for 2020. Miss D says this is incorrect. Hearing nothing, she chased the Council again a week later. The Council replied confirming she accepted the offer of a place from her email account.
31. The same month, a representative on behalf of Miss D contacted the Council about its decision to refuse E a Reception place in 2021. The Council repeated it could not act on her request because she failed to make it before the deadline. It confirmed if she wanted E to start school in 2021, she now needed to apply for a place in Year 1, not Reception.
32. The Council argued:

• The Code contains no reference to any deadline, or absence of a deadline, when making a summer born child request;
• The deadline is set according to paragraph 2.17 of the Code; and
• In response to the point about the law not setting out a deadline for such requests, the Council said, ‘the absence of a categorical statement specifying the absence of such a deadline within the Code, does not therefore confirm its existence’.

33. Miss D argues there is no legal deadline for making this type of request. She believes under the Code the Council must decide the request based on the circumstances of each case and in the best interests of the child. This takes priority over any deadline set out in the Council’s admission policy. She is unhappy because she claims information on its website about the deadline is not clear as it says to make an admission application by 15 January and the ‘back class’ application afterwards. Based on this, she sent her admission application before this date and her ‘back class’ application in May, once she had received further medical information about E’s development.

Analysis

34. I make the following findings on this complaint:
1. The email the Council sent Miss D in January 2020 could have been clearer in its information to her about the 15 January deadline. I consider this failure amounted to fault.
2. I am not satisfied this failure caused her an injustice. This is because the email went on to refer to parents receiving a response to their request before 16 April. On balance, I am satisfied therefore, this would have alerted Miss D of the need to make the request by 15 January and certainly before 16 April at the latest.
3. I also considered whether the Council’s policy is inflexible which meant it restricted its discretion when it refused to accept her late request. On the facts of this case, I am not satisfied there was fault in the way it dealt with it. This is because:

• It was not fault for the Council to set a deadline in its admission arrangements for the submission of the request. Councils publish the admission results each year in April. The Code states the closing date for primary school applications is 15 January. It also states a council must process the back class application request as part of the main admission round unless the parental request is made too late for this to be possible.
• Before she sent her request, there is no evidence of Miss D telling the Council she was waiting to get medical evidence about her daughter which was crucial to her request. She failed to tell the Council what she was doing which would explain why her request would be late.
• What Miss D said to the Council was she missed the deadline because of the Covid-19 pandemic and its misleading email. While I have some sympathy for her, and accept the pandemic restrictions may have contributed in part to the delay with her sending the application, I am not satisfied this caused the whole 4-month delay. In reaching this conclusion, I note national restrictions were imposed in the last week of March, for example, almost 2 months after the passing of the deadline. In addition, I also note she apologised for the delay in May when she sent her request. This tends to suggest she was aware she was late providing the back class request.
• To conclude, the Code is clear it is for the Council as admission authority to set the admission arrangements. To depart from these arrangements would require exceptional reasons. I am not satisfied, for the above reasons, Miss D gave the Council exceptional reasons at the time to justify departing from its policy.

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Final decision

35. The Ombudsman found fault causing no injustice to Miss D on her complaint against the Council.

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Investigator's decision on behalf of the Ombudsman