Summary: Miss X complains the Council has unreasonably refused her application for her summer-born child to defer entry to the Reception year group at the school of her choice. As a result, she says her child has been denied the place to which she is entitled. We find fault with the Council for delay and for failing to properly communicate the reasons for refusing the deferral at one school. We have agreed remedies to ensure this does not happen again.

The complaint

1. Miss X complains the Council has unreasonably refused her application for her summer-born child to defer entry to the Reception year group at the school of her choice.
2. Her child has therefore been denied a place to her first choice school.
3. Miss X would like her first choice school to offer her child a deferred place in Reception.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. If we are satisfied with an organisation’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

7. I have considered the information provided by Miss X and discussed the complaint with her on the telephone.
8. I have considered information provided by the Council and the relevant law and guidance.
9. Miss 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

Law and Guidance

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

10. 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)

11. 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)
12. 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 One. Admission authorities must make clear in their admission arrangements the process for requesting out of the normal age group. (paragraph 2.17)
13. 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)
14. When telling a parent of their decision, admission authorities must set out clearly the reasons for their decision. (paragraph 2.17A)
15. Parents do not have the right to insist their child is admitted to a particular age group.
16. 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

17. 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.
18. 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’).
19. 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 one. This should involve taking account of the potential impact of the child’s admission to year one without first having completed the reception year. The head teacher’s views are an important part of this consideration.
20. 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.
21. 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.
22. 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.
23. Once a child has been admitted to a school it is for the head teacher to decide how best to educate them.
24. 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 policy (‘Requesting your child is admitted to school early or late’)

25. All applications are considered on a case-by-case basis by the admission authority of each school.
26. The head teacher of each school will be consulted as part of this process.
27. The admissions authority must clearly set out the reasons for the decision in writing.

‘Summer born admissions: guidance for practitioners’ (December 2018)

28. This document sets out our approach to complaints about the admission to school of summer born children. It gives admission authorities and the public an understanding of the correct decision-making process admission authorities must take.
29. Parents or guardians can decide to wait until their child reaches CSA before they start school. This is their decision to make and not one the admission authority can overrule.
30. The admission authority must decide whether, after reaching CSA, it would be in the child’s best interest to start in reception or year one. It must make this decision taking account of all relevant considerations, including the factors set out in the Code, and having taken into account the potential impact of admission to year one without first having completed reception.
31. Our 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 interest to start in year one, but it would need to explain the decision with reference to any support available within the school.

What happened

32. In December 2021, Miss X asked the admission authority (the Council) to defer her child’s (G’s) admission to primary school to September 2023 after she reached compulsory school age instead of starting in September 2022.
33. G would only just have turned four years old in September 2022 and under standard admission arrangements, would have started Reception class that year. Miss X wanted G to start in Reception in 2023, rather than year one.
34. Miss X sent a copy of an email of support from four primary school head teachers and the manager from G’s nursery. The only head teacher to disagree was Miss X’s first choice primary school, saying it was their policy that children stay in their standard year group for their age.
35. In her request, Miss X explained for G’s social, academic and emotional development it will be in her best interests to have a deferred start into Reception rather than going straight into year one in 2023. She also reminded the Council it had to make its decision in G’s best interests, and quoted relevant sections of the School Admission Code.
36. In April 2022 the Council wrote to Miss X agreeing to defer G’s Reception start to September 2023 at five community schools. Her first choice school still did not agree and the Council attached a letter from the head teacher setting out the school’s reasons.
37. Miss X responded to the Council the following day quoting recent guidance from the Ombudsman saying that “that requests should be agreed unless it can be demonstrated by the admission authority that it is in the child’s best interest to skip reception entirely and enter year one directly in September 2023. The onus is no longer on the parent to provide evidence that demonstrates it is in their child’s best interest to defer reception. As the admissions authority we can authorise the request, though the headteacher's opinion may not be in support of the deferment.”
38. She also quoted the Schools Admissions Code 2021 “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 parent’s views; 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 out 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. When informing a parent of their decision on the year group the child should be admitted to, the admission authority must set out clearly the reasons for their decision.”
39. Miss X pointed out the head teacher referred to a blanket policy against deferral which goes against the Schools Admission Code.
40. The Council responded on 3 May saying it asked the school to re-consider their decision in line with the Department of Education Guidance. “We have instructed the school to ensure that their response is made on the basis of the circumstances of the individual case and in the best interests of the child concerned.”
41. Miss X had to chase the response as she did not hear back for a month. The Council apologised for the delay on 6 June and said it would get back to her within a week. In a telephone call on the 4 July the Council said she would get an email explaining the reasons for the decision but the Council failed to send one. 
42. On 12 July Miss X complained to the Council that she did not receive the result of her request within published timelines, and the basis of the decision did not follow proper government guidance.
43. The Council response on 22 August apologises for the delay in response and for the stress experienced as a result, but it says there was no fault with the decision making process or the basis of the decision.
44. Miss X made a stage 2 complaint on 7 September saying the Council failed to adhere to the admissions code and statutory guidance.
45. The Council gave the final complaint response on 3 October saying the school “does not have a blanket deferral policy but considers each request based on the individual circumstances”. It apologised for the delay in providing the deferral decision but considers the head teacher best placed to understand how to meet the needs of children, based on their professional experience and knowledge of education.
46. Miss X then brought her complaint to the Ombudsman.
47. In response to our enquiries, the Council said the evidence provided by Miss X and G’s nursery did not lead the Head of Admissions to override the opinion of the head teacher at the first choice school. The Council respond to deferral requests on a school by school basis.

Analysis

48. The emails from the first choice school to Miss X say it has a policy against deferral. I cannot comment on this as it is out of the Ombudsman’s jurisdiction, however the policy would be contrary to the Code and government guidance.
49. The Council must make its own decision on whether it would be in the child’s best interests to start in Reception or year one. When reaching this decision, it must consider the circumstances of each case based on the best interest of the child, and the views of the head teacher.
50. The School Admission Code says the Council must set out clearly reasons for its decision.
51. The Council say in the enquiry response the rationale provided by the first choice school forms the basis of the decision not to agree to deferral at this school. However it failed to communicate this to Miss X and this is fault. The Council failed to follow the Code above.
52. The Council said in the letter to Miss X it agrees with the deferral date for G. It did not set out its reasons for not agreeing with it for one school.
53. The first choice school set out its reasons for not agreeing the deferral which are reasonable, and it is also reasonable for the Council to respond to deferral requests on a school by school basis. However the Council should have set out clearly it’s reasons for agreeing with the first choice school as required by the code. Attaching an email from the head teacher may show the basis of the decision but fails to show the Council’s own decision making process.
54. There was also delay in the Council’s response to Miss X causing frustration and distress. Miss X had to chase the Council several times for a response and had to make a complaint to get one, which the Council was also late responding to.
55. I therefore find fault with the Council but no injustice to Miss X for G’s school placement.

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Agreed action

56. Within one month of the date of the Final Decision, the Council should:
• Write a personal apology to Miss X for the failure to explain why it agreed with her for five schools and not for her first choice school;
• Pay Miss X £150 for the time and trouble of bringing a complaint and any distress caused;
• Ensure officers know that decision letters need to clearly show the reasons for the decision;
• Act to identify the reasons for the failure to deal promptly with the complaint, and to keep Miss X updated properly, so they are not repeated in the future.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I find fault with the Council for failing to properly communicate the decision for the deferral, and delay in the responses to Miss X. I have recommended remedies to ensure this does not happen again.

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Investigator's decision on behalf of the Ombudsman