Report Authors’ Response to the DfE:

1. “We have changed the School Admissions Code so that it is more flexible for parents of summer-born children, making it easier for them to defer their child’s entry.”

This comment is not relevant to the issue of summer born children being able to access Reception class at compulsory school age (since they will not be ‘deferring‘ entry), and even for parents seeking a deferral during the Reception class year before their child reaches compulsory school age, section 2.16 of the 2012 Code only says parents can “request” a deferral. Many parents have been denied this request and told their child must start in the September following their 4th birthday.

2. “Parents should also have the flexibility for their children to attend part time until they reach their fifth birthday or request their child enters reception class, rather than Year 1, following their fifth birthday.”

Again, while parents “should” have the flexibility for their children to attend part-time until they reach compulsory school age (and not “until they reach their fifth birthday” as stated above), section 2.16 of the 2012 Code says they can only “request” this. The 2012 Code says absolutely nothing about a child entering Reception class following their 5th birthday. In fact, the Code does not even include a definition of compulsory school age.

3. “Schools and councils must make this clear in their own admissions arrangements – and we have recently published guidance to reiterate these responsibilities.”

The 2012 Code itself is not clear on the entry of summer born children entering Reception class at compulsory school age. The non-statutory advice published by the DfE in July 2013 has only added to the confusion surrounding this issue, and parents are still being expected to demonstrate ‘exceptional circumstances‘ for their summer born compulsory school age children to have their primary school applications treated equally, with full access to 7 years of primary education beginning in Reception class.

4. “We are working closely with school admission authorities to make sure that they are acting within the rules and we will not hesitate to intervene where this is not the case.”

We welcome any intervention by the DfE that ensures ALL admission authorities in England are making decisions based on national and EU legislation – and not just based on the 2012 Code. If by “rules“, the DfE is referring to its own unclear and ambiguous 2012 guidance and 2013 advice, then this does not go far enough.

IMPORTANT GOVERNMENT OBLIGATIONS under the U.N. CONVENTION ON THE RIGHTS OF THE CHILD include:

a) If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen.

b) The obligation to ensure that the child’s best interests are appropriately integrated and consistently applied in every action taken by a public institution,

c) The obligation to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child’s best interests have been a primary consideration. This includes describing how the best interests have been examined and assessed, and what weight has been ascribed to them in the decision.

AN IMPORTANT CONTRADICTION IN THE 2012 ADMISSIONS CODE:

The School Admissions Appeals Code 2012 says: “When a local authority or an admission authority informs a parent of a decision to refuse their child a place at a school for which they have applied… Admission authorities must not limit the grounds on which an appeal can be made.”

The School Admissions Code 2012 says in section 2.17 ‘Admission of children outside their normal age group‘ (the section the DfE is telling admission authorities to apply to summer born applications for Reception class at compulsory school age): “Admission authorities must make decisions on the basis of the circumstances of each case, informing parents of their statutory right to appeal. This right does not apply if they are offered a place in another year group at the school.”

Which of these 2012 Code “rules” should admission authorities abide by?

The DfE may say that as long as a school place is offered, there can be no right of appeal just because it is not in the year group that parents have sought, but this is what Stone King solicitors said about this in September 2013:

“The sting in the tail is the view taken by the Code that there is no right of appeal in relation to an offer of a place in a year group other than the one that the client wants. That raises the question of what parental preference means. If one reads the legislation in its strict terms, it is no more than the expression of a preference for a school… However, in any meaningful terms, preference indicated by an application for a place, especially if the application is made in the routine procedure, carries with it a necessary implication that the preference can only be properly complied with by an offer of a place in the year group that the parent wants. Any failure to meet that implication must, in our view, give rise to the statutory right of appeal and whilst in many respects the Admissions Code has the force of law, our view is that it cannot take away rights conferred by an Act of Parliament.“