Summary: Mrs X complains about the Council’s decision not to allow her summer born daughter, who has special educational needs and developmental delay, to start school at age 5 in Reception year rather than Year One. Mrs X complains the Council has not followed the correct process and its decision will mean her daughter will miss out on the Reception year. The Ombudsman finds fault with the Council’s decision-making process. The Council has agreed to review the decision, apologise to Mrs X, and pay her £100 for her time and trouble pursuing the complaint.

The complaint

1. Mrs X complains about the Council’s decision not to allow her summer born daughter, who has special educational needs (SEN) and developmental delay, to start school at age 5 in Reception year rather than Year One. Mrs X believes the Council has not followed the correct process with the result her daughter will miss out on an important year of school education.

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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. 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

5. I have considered documents provided by Mrs X and the Council including:
• The parent’s application and reasons to defer the start of school;
• Correspondence between the Council and Mrs X;
• The Council’s decision letter;
• The School’s advice;
• Advice provided by SEN professionals and the nursery Mrs X’s daughter currently attends.
6. I have considered the School Admissions Code and non-statutory guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The School Admissions Code

8. 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.
9. 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.
10. 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.”
11. 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.
12. Parents do not have the right to insist that their child is admitted to a particular age group.

Non-statutory advice

13. The Department for Education has issued guidance entitled: “Advice on the admission of summer born children – For local authorities, school admission authorities and parents”.
14. The guidance states admission authorities must take account of the child’s individual needs and abilities and consider whether these are best met in Reception or Year One. This should involve taking account of the potential impact of the child being admitted to Year One without first having completed the Reception year. The Guidance says that, in effect, the authority is making a decision about whether it would be in the child’s best interests to miss the Reception year.
15. 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 onto say parental requests for summer born children are different from any other request for admission out of the usual age group as it is only in these circumstances that the child is being admitted to school for the first time.

Mrs X’s request

16. Mrs X requested her daughter start school in Reception in September 2021, after she has reached compulsory school age in Summer 2021. Mrs X explained that her daughter had SEN and was undergoing further investigation for significant developmental delay. Mrs X provided the Council with professional opinion supporting that her daughter was delayed in several learning areas. Mrs X explained her daughter had taken a long time to settle in nursery and had not yet moved to the pre-school class within the nursery. Mrs X wanted her daughter to have the benefit of an extra year in nursery but still to gain the benefits of Reception year.
17. The Council sought the advice of the headteacher of the school that Mrs X wanted her daughter to attend. It was the school Mrs X’s other child attended and their local school.
18. The Headteacher gave reasons why she considered it would be appropriate for Mrs X’s daughter to start Reception year in September 2020. The Headteacher noted that Mrs X’s daughter was delayed in several areas but considered the school could meet these additional needs and Mrs X’s daughter did not need to defer starting Reception. The School’s opinion was that Mrs X’s daughter should start Reception year in September 2020 (rather than stay at nursery) and agreed with Mrs X that Reception was a “crucial year”. The Headteacher explained that the School could access external professionals that could support SEN needs if Mrs X’s daughter started there in September 2020 which the nursery (which was in a different council area) could not.
19. The Council provided its decision to Mrs X stating simply that it agreed with the view of the School. This meant Mrs X’s daughter either had to accept a Reception place for September 2020 or start school in Year One in September 2021. The Council said if Mrs X’s daughter deferred, she would remain in education for an additional year than her peers, which both the Council and School considered unnecessary.
20. Mrs X complained the Council had not followed the correct process. The Council had given a view on whether her daughter should start Reception in September 2020, but Mrs X said it was her decision whether her daughter started school in September 2020 or 2021. Mrs X said the Council had not explained why, given Mrs X did not intend her daughter to start compulsory school until September 2021, it was in her daughter’s best interests to go directly into Year One in 2021 instead of Reception year.
21. The Council did not alter its position during the complaint process and denied it had not followed the correct process. It said it had considered all the evidence in reaching its decision as well as the evidence Mrs X provided.

Analysis

22. The question the Council asked itself was whether it was in the child’s best interests to start Reception in September 2020 or stay at nursery an additional year. The School set out reasons why it did not consider Mrs X’s daughter needed to defer starting school and how her SEN could be supported in Reception if she started in 2020.
23. This is the wrong test and does not answer the relevant question as to whether it is in the child’s best interests to join the school in Reception or Year One in 2021, that is whether it is in the child’s best interests to miss the Reception year.
24. The Council has not taken account of the potential impact to Mrs X’s daughter of being admitted into Year One without first having completed Reception year, although the School described Reception year as ‘crucial’ and it is likely Mrs X’s daughter will still be delayed compared to peers in the year group below. I find fault in the Council’s decision-making process for applying the wrong legal test.
25. Because of the Council’s fault. Mrs X cannot be certain whether the Council would have agreed to her request had it followed the correct process.
26. The Council also said the effect of deferring Reception year to the term after Mrs X’s summer-born child was age 5 meant that she would remain in education a year longer than other pupils. This is not necessarily the case. The Government guidance indicates that the parent will need to re-apply for an out of year group place at transition stages and should be advised to apply at the time when their child’s original year group applies to transition to a new school. So, if a summer-born child starts Reception at age 5, not age 4, they would need to apply for secondary school when they are in Year 5, and again ask for an out of year place if they want to complete Year 6. While the Guidance says the assumption is that a child should remain with the year group they joined, this would be considered on a case-by-case basis.

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Agreed action

27. Within one month of my final decision:
• the Council will review its decision and consider the correct legal test of whether Mrs X’s daughter should start school in September 2021 in Reception or Year One. In doing so, it will need to ask itself the question why it is in the child’s best interests to miss Reception year;
• the Council will provide detailed written reasons to Mrs X and share the decision letter with the Ombudsman;
• the Council will apologise to Mrs X for failing to follow the correct process even when Mrs X pointed this out in her complaint
• the Council will pay Mrs X £100 to acknowledge her time and trouble pursuing the complaint.
28. The Council has told me the School has agreed to hold open a place for Mrs X’s daughter in both Reception and Year One for September 2021 pending the outcome of the review.

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Final decision

29. I have completed my investigation. There was fault in the way a Council decided that it was in Mrs X’s daughter’s best interests to start school in 2021 in Year One without having completed Reception year. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman