Summary: The Ombudsman found fault on Mr M’s complaint about the school governors failing to properly consider his request for his summer born son to start reception in September 2022 instead of year 1. The school failed to keep records showing what it considered, what it discussed, and the reasons for its decision. The decision letter failed to give full detailed reasons showing the decision met government guidance. The agreed action remedies the injustice caused.

The complaint

1. Mr M complains the governors of his preferred school failed to properly consider his request for his summer born son to start reception in September 2022 instead of year 1: as a result, he would start in year 1, missing an important year of education in reception, which is causing the family stress about the potential impact this will have on his long-term education.

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The Ombudsman’s role and powers

2. If we are satisfied with school governors’ 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)

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Legislation and guidance

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

4. A child begins to be of ‘compulsory school age’ (CSA) 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)

5. 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)
6. 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)
7. The Code states, ‘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)
8. When telling a parent of their decision, admission authorities must set out clearly the reasons for their decision. (paragraph 2.17A)
9. Parents do not have the right to insist their child is admitted to a particular age group.
10. 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

11. Non-statutory guidance is intended to support admission authorities in decision making. Admission authorities should follow the advice given in non-statutory guidance or explain their reasons for not doing so.
12. 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’).
13. 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.
14. 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.
15. 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.
16. 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.
17. Once a child has been admitted to a school it is for the head teacher to decide how best to educate them.
18. 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.

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School’s admission policy for 2022/23

19. The governing body is the admissions authority for the school. Requests for admission outside a child’s normal age group must be submitted to the local authority providing reasons for seeking a place and include any supporting evidence from relevant professionals. The governing body and head teacher will consider the request and inform the parents of the outcome.

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How I considered this complaint

20. I considered all the information provided by Mr M, the notes I made of our telephone conversations, and the school’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr M and the school. I considered their responses.

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What I found

21. In December 2020, Mr M and his partner sent a request to the school for his son to start in reception in September 2022 rather than in year 1, should he apply and get a place. This is because their son is a summer born child and they felt it best for him to start in reception for social and emotional developmental reasons. In addition, they explained they moved to a new city earlier that year and away from their established support networks. Their son had 4 different childcare settings in 12 months, complicated by Covid-19 restrictions, and they did not want him to miss a whole year’s education by entry to year 1 instead of reception.
22. The school, as its own admission authority, refused their request. It said it would only consider offering him a place in year 1 should they apply for a school place.
23. Mr M complained about the school’s decision saying it failed to show it considered starting in year 1 was in their son’s best interest. While the decision letter referred to year 1 meeting their son’s needs, it failed to say why it was in his best interests.
24. Upon receipt of the request, the head teacher, a member of the governing body, emailed two of the school’s governors. This said Mr M’s request was very similar in nature to many others received and there is no supporting documentation from other professionals or educational settings. The head teacher was not inclined to support it as the request was based on upheaval due to relocation and the impact of Covid-19 which many families could argue.
25. One panel member replied the following day saying he agreed and felt the education the school can provide will close any gap and so they would not need to offset the year.
26. The other member replied saying he supported the refusal but would await the appeal. Another email from the head teacher to one of the panel members asks if they could move a meeting date. The school explained a meeting by the headteacher and the Chair was due as these are held fortnightly. Due to Covid-19 restrictions, and government and local authority guidance, these are now held virtually when needed.
27. In response to my enquiries, the school said the request was shared remotely with the panel through email and its secure computer system because of Covid-19. It also listed the documents used by the admission panel when considering this request. This included the Code, the guidance, and Summer Born Children: Starting School: Advice for parents (September 2020).
28. On 14 December, the school wrote to Mr M with its decision. The letter said the evidence did not show their son would fail to cope academically, socially, or emotionally and the school looked at his needs and could tailor the curriculum to meet them. The letter also wrongly said they mentioned their son would benefit from an extra year of play at pre-school. The school apologised for this error 4 days later when Mr M complained they had not said this, accepting it had made an error in ‘haste’.
29. Mr M was unhappy with the decision saying it failed to show whether it considered: their son’s best interests were in going to year 1 rather than reception; the possible negative impacts of him missing the reception year.
30. The school replied early in January 2021, saying its admission panel considered the request. It set out what the panel discussed and considered. This included the school’s strong links with local pre-school and nursery providers, its reception delivers the Early Years Foundation Stage curriculum, staff would focus on developing their relationship with their son, as well as classes and group work to ensure he meets his full potential. Year 1 staff would fully assess him, and the curriculum planned to meet his needs so there would be no gaps.
31. After a further challenge, the school again said it could meet their son’s needs in year 1 after an additional year in an independent setting which duplicates reception year. The letter referred to the decision by the governing body.
32. In its response to my enquiries, the school confirmed the admission panel is made up of the head teacher, and 2 members of the governing body. This information is on its website.

Analysis

33. I found fault on this complaint and in reaching this view, took the following in to account:
1. There is no record showing what the panel considered, individually or collectively. I accept there was no face-to-face meeting of the panel members to discuss the request because of Covid-19 restrictions and local authority guidance. This means the only evidence about its decision consists of the following 3 emails:

• Email 1: This is from the head teacher to 2 panel members. This sent a copy of the request. She said it was similar in nature to other requests and there was no supporting documentation from any other professional or educational setting. It went on to note Mr M’s wishes were based on the upheaval in the child’s life due to their relocation and the impact on Covid-19. The head teacher felt this was an argument put forward by many families and children. She concluded by saying she was inclined not to support the request.

As there is no other evidence of the head teacher’s consideration of Mr M’s request, it is reasonable to assume this was her decision and more importantly, her reasons for refusing the request. I am not satisfied the head teacher considered this request according to the Code and guidance. This is because the email fails to show she reached her decision in their son’s best interests.

• Email 2: This is from the first panel member. He says he agreed with the head teacher and felt the education the school can provide will, ‘close any gap and therefore they would not need to offset the year’. Again, this email does not show this member considered and reached a decision on the request in their son’s best interests. I am not satisfied this panel member considered this request according to the Code and guidance.
• Email 3: The email response from the second panel member is heavily redacted. The school said this is because it contained information which was not about this request. Only the final sentence of the email is visible. This says ‘Anyway, in short I support the refusal but await the appeal’. There is no evidence about what this appeal was or when it might be heard. Again, I am not satisfied this panel member considered the request according to the Code and guidance. This is because the member fails to give any reason at all for the decision. The email does not show this member considered and reached a decision on the request in their son’s best interest.
2. Although the school was operating under Covid-19 restrictions, which placed pressures and limits on how they functioned, this did not mean it was no longer required to show how the panel reached its decision.
3. I consider these failures caused Mr M and his partner an injustice. This is because the distress caused includes not knowing whether the panel properly considered and decided their request taking account all the evidence and legal requirements.
4. The decision letter sent to Mr M on 14 December 2020 wrongly refers to him saying his son would benefit from an extra year of play at pre-school. The school accepts this was an error made in haste at a busy time of year for which it apologised several days later. This error was fault. While the school quickly apologised for the error, I consider the injustice it caused to Mr M and his partner included distress as it undermined their overall confidence in the decision-making process. I say this despite the school saying Mr M’s partner’s email response shows no distress.
5. I am also satisfied the decision letter failed to show the decision was reached according to the Code and guidance. This is because its brief 4 paragraphs, amounting to ten lines, failed to explain why the panel reached its decision in the child’s best interests. It explained it thought the evidence failed to show his son would struggle academically, socially, or emotionally. This is not the test required under the Code.

The second half of this paragraph is focused on the wrongly credited statement to Mr M about the extra year of play at pre-school. It explained the reception curriculum is play based which helps children move to more formal learning once developmentally ready. The relevance of this sentence to the decision is undermined by the school’s acceptance Mr M had not included this in their submission.

6. The injustice this caused is again, Mr M and his partner not knowing whether the decision on their request would have been different but for the fault and loss of confidence in the panel’s decision.
7. The letter of apology explained the school would send them a more detailed response to the email they sent after receiving the decision. On balance, I am satisfied a more detailed letter would not have been sent but for Mr M’s complaint. I say this is because the initial letter did not say one would follow.
8. I have seen an undated letter from the school to them, which I understand was sent in February 2021. This is more detailed. Unless the initial decision letter said the school would send a more detailed letter after the Christmas and New Year break, Mr M should not have needed a second letter from the school explaining its decision in greater detail several weeks later. The initial letter should have either explained the decision in full or said a second letter would follow with full reasons.
9. The second letter explained what evidence the panel considered and what it had noted and discussed. The problem is, despite the school providing information about what documents were considered by the panel, there is simply no record showing what members considered. There is no record showing what the panel noted or discussed beyond the information contained in the 3 emails. Nor am I satisfied this letter fully and clearly explained why the panel’s decision was in the child’s best interest.
10. No matter how thorough either letter could have been, there was a lack of a proper record of the panel’s reasons for its decision. The failure to keep a record means the credibility of the decision letter is undermined.
11. I am satisfied the fault identified caused Mr M an injustice. This is because it caused distress as they have the uncertainty of knowing whether the decision on their request would have been any different but for the fault.

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Agreed action

34. I took account of our guidance on remedies and the apology the school previously gave Mr M about referring to evidence in its decision letter which he had not submitted.
35. The school agreed to take the following action within 4 weeks of the final decision on this complaint:
1. Send Mr M a written apology for its failure to: have records showing what evidence the panel considered and what they discussed; show it reached a decision in the best interests of the child; include detailed reasons in the initial decision letter;
2. Arrange for the rehearing of Mr M’s request with different panel members;
3. Ensure proper records of panel decision-making are kept in future so the reasons for the decision are clear;
4. Consider the training needs of panel members for decision-making on these requests; and
5. It will ensure decision letters give full detailed reasons which comply with the Code and guidance.

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Final decision

36. I found fault on Mr M’s complaint against the school. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman