Summary: Mrs X complained the Council failed to ensure her son Y had a phased transition; refused her request for a delayed school start; for her son (Y), failed to meet the deadline for Y’s Education Health and Care Plan review; for school transition, failed to ensure Y had a phased transition and interfered with school matters. Mrs X said this caused distress to her and her family and has created uncertainty about Y’s future education. We have not investigated Mrs X’s complaints where we cannot achieve a worthwhile outcome and where we do not have jurisdiction. about the Council refusing her request for a delayed school start, failing to ensure a phased transition or interfering with school matters. On the transition review, we do not find the Council at fault

1. Amend FD to DD
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The complaint

2. Mrs X complains the Council:
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• Refused her request for delayed entry to Reception for her summer born child (Y). Mrs X says this caused distress, anxiety and she felt reprimanded for a decision she made in the best interest of Y.
• Failed to meet the deadline for Y’s Education Health and Care Plan (EHCP) review for transition into school which caused stress and anxiety in pursuing the Council to arrange one.
• Refused to include in Y’s EHCP that he would be entering Reception a year later than normal. Miss X said this risks Y’s future education with the possibility of missing a whole school year.
• Advised his school to record Y’s year group based on his date of birth – rather than the year group the school had placed him in. Miss X said this has created a difference between Y and his Reception class mates and is not in line with what the Department for Education says.
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What I have investigated

3. I have investigated Mrs X’s complaint about the Council failing to meet the deadline for Y’s EHCP transition review.
4. I have not investigated the other parts of Mrs X’s complaint for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or

• any fault has not caused injustice to the person who complained, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,

(Local Government Act 1974, section 24A(6))

7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

11. I spoke with Mrs X and I considered information provided by Mrs X and the Council.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Summer born admissions

13. Children usually start school in the September following their fourth birthday. All children are entitled to a full-time school place from this point.
14. The parents or guardians of a summer born child, born between 01 April and 31 August, can choose to not send their son or daughter to school until the September following their fifth birthday.
15. If a parent or guardian does not want their child to miss reception year, they can ask for the child to start school out of their normal age group. The child can then start in reception instead of year 1, in the September following their fifth birthday.
16. Although parents or guardians can decide not to send their child to school until they reach compulsory school age, they cannot insist their child is put into a particular year group. The School Admissions Code (para 2.19) states that when a parent asks the admission authority to allow their child to enter reception out of their normal year group, the admission authority “must make decisions on the basis of the circumstances of each case and in the best interests of the child concerned."
17. Parents or guardians should complete an application for a summer born deferral at the same time as applying for a reception place, and by the 15 January of the year the child is due to start reception. Children usually start school in the September following their fourth birthday. All children are entitled to a full-time school place from this point.

Transfer between phases of education

18. An EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution
19. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school
20. Councils normally begin the reviews in the autumn of the year before the child is due to transition to their next phase of education. The review and any amendments must be completed by 15 February in the calendar year of the transfer.

What happened

21. Mrs X’s son (Y) has an EHCP and was due to start Reception at School A in September 2020. There is no complaint regarding the EHCP review for school transition which should have already taken place by February 2020.
22. Mrs X decided
23. Did she tell the council/you/when?
24. It may be easier if you just put the details when you summarise her comms on the DD
Y was not ready to start at School A due to the impact the covid pandemic had on his time at nursery and his phased transition into school, which she said had not taken place that summer.
25. Mrs X made an application to the Council, in September 2020, to delay Y’s entry to school as a summer born child until September 2021. Mrs X wanted Y to start in Reception and not Year 1, in 2021.
26. Y did not attend School A in September 2020 and remained at his nursery, who Mrs X considered was meeting Y’s needs. The Council refused Mrs X’s request in January 2021.
27. Meanwhile, Mrs X complained to the Council in February that it had not arranged a review of Y’s EHCP ahead of a September 2021 school start.
28. The Council arranged Y’s EHCP review on 12 February 2021. Mrs X provided evidence in support of deferred entry into Reception and asked for the Council to include deferred entry into Reception as summer born child in Y’s EHCP. Mrs X also asked the Council to name her preferred school (School B) in the plan.
29. School B is a Catholic Aided school. This means the governing body is the admission authority and can make its own decision whether a summer born child starts in Reception or Year 1.
30. In March, School B agreed to Mrs X’s request for delayed entry into Reception. In April the Council confirmed it was consulting with School B about a place for Y which it could then name on his EHCP.
31. In May 2021, the Council agreed to name School B on Y’s EHCP. Mrs X asked that the Council include that Y needed delayed entry, in his EHCP. However, the Council refused.
32. Y started School B in September 2021. Mrs X asked School B how it had recorded Y on SIMS (the School’s Information Management System). It said the Council had told it to list Y as a Year 1 child on SIMS. Mrs X says the Department for Education told her School B should record Y as a Reception child. The Council responded to a further complaint about this from Mrs X. It said the regulations did not require a school to record which year group it had admitted a child to – which was ultimately a decision for School B.
33. Mrs X provided further comments to a previous draft decision on this complaint. She said, in summary:
• It is unfair the Council did not treat Y’s summer born agreement like any other summer born agreement for other children without SEN and the situation has come about due to the Council’s failure to follow the transfer process for a child with an EHCP.
• A panel did not decide Y should not be placed outside of his chronological year group- the Council doctored another letter template.
• The Department for Education said as Y is attending Reception year at School B, the school should record him as a child in that year.
• The Council’s actions regarding the year group consultations and advice to School B put Y’s Reception place at risk.
• School B has not enrolled Y as a Reception child and has placed him in a mixed age Year 1/Reception group. Despite following Reception curriculum and having a summer born agreement from the Governing Body he has still been recorded and enrolled as a Year 1 child. School B has clearly stated this was on advice from the Council.
34. Mrs X provided some further comments on the draft decision of this complaint. Specifically she said:
• When Y was due to transfer to primary school in the summer of 2020 a supportive phased transition did not take place.
• It is clear the start of the current situation was the failure of the Council to do a phased transfer for Y.
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Analysis

35. Mrs X complains the Council did not complete Y’s EHCP review for transition to primary school in 2021.
36. The Council’s duty was to complete the EHCP transition review by February 2020 ahead of Y’s planned school start in September 2020. There is no complaint in that respect.
37. I would not expect the Council to carry out a further EHCP transition review by February 2021 ahead of a delayed entry to school in September 2021 unless it had previously agreed to a delayed entry.
38. The Council did not agree to a delayed entry at any time. I therefore consider the Council did not have a duty to complete an EHCP transition review by February 2021. I find no fault by the Council.

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Final decision

39. I have found no fault by the Council and have now completed my investigation.

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Parts of the complaint that I did not investigate

40. I have not investigated Mrs X’s complaint the Council wrongly refused delayed entry for Y. This is because there is not enough evidence of fault to justify investigating and because an investigation will not achieve any worthwhile outcome given Mrs X secured delayed entry for the school she preferred in any event.
41. I have not investigated Mrs X’s complaint about Y’s lack of phased transition into primary school in September 2020. This is because the complaint is late and The law says we cannot investigate late complaints unless we decide there are good reasons.I can see no good reason why Mrs X could not have complained to us sooner. Further, I consider any fault did not cause significant injustice.Any investigation will not achieve any worthwhile outcome. This is because as stated above, and there is no injustice as Mrs X had already decided Y would not attend school in September 2020 and he did not attend. Y confirmed Y was not ready for school in any event.
42. I have not investigated Mrs X’s complaint about the content of Y’s EHCP as she has a right of appeal, and it is reasonable to expect her to use that right.
43. I cannot investigate Mrs X’s complaint about the school’s records as this is a matter for the school which is not within my jurisdiction.

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Investigator's decision on behalf of the Ombudsman