Unfavourable treatment for summer-born children with EHCPs whose parents opt for a delayed school start

with Beckie, parent of a disabled child and qualified solicitor

Parents of children born in the summer months sometimes feel their child isn’t ready to start school at what may be just a few days after their fourth birthday. A child born at the end of August is of course, chronologically an entire year younger than a child born in early September and, at that age, the difference in development can be a large one. Even if, academically, the younger child is very bright, physically and emotionally, they may not be able to manage as well as the September-born child. There is provision for this and parents of a child born between April and August can opt to defer entry to the September after their fifth birthday, a year after they could first have started school.

However, if your young child has a disability and an Education, Health and Care Plan (EHCP), the situation is a bit different, and they may be subject to a disadvantage because of it. There is updated guidance promised, but it’s still not been published. SEND Parent, Beckie, a mum of three who is also a qualified solicitor, is here to explain more about the issue.

Why should my disabled child miss out on a year of school by delaying entry? By Beckie, parent of a summer-born child with SEND

While parents can decide to delay their summer-born child starting school by a year, if your child has an EHCP, there are additional considerations that may put them at a disadvantage, as they can often be required to miss out on a whole year of school later on. However, children without an EHCP are much less likely to be disadvantaged in the same way.

Children without EHCPs are admitted to school via the School Admissions Code. This states that decisions relating to the admission of children outside their normal age group must be made “in the best interests of the child[1].  They also have the additional benefit of associated guidance.

For children who DO have an EHCP, admissions decisions are made under the Children and Families Act 2014 and its associated Regulations. If their parents/carers want them to be educated out of year group, they can request this from their local authority.[2] However, for this arrangement to be included in the relevant sections of the EHCP, there has to be evidence of an identified special educational need for them to be educated out of the usual year (section B), and that corresponding provision is necessarily included (section F).


What if the LA disagrees?

If the local authority doesn’t agree there’s a special educational need for an out-of-year place, parents can appeal to the First-tier Tribunal, inevitably involving significant time, stress and cost. The delay caused by the appeals process may well result in it being too late for a child who has to start school or transition to a new setting. Furthermore, local authorities could remove the relevant wording in a subsequent year during the annual review process, particularly on a transfer to a specialist setting. When transferring to a specialist setting, it might be argued there’s no longer such a pronounced educational need to be educated a year behind their chronological cohort, as specialist settings will most likely provide for children with a wide range of needs and abilities within any particular year group. That means a child could be made to skip a year to join their chronological cohort.

Consequently, children with an EHCP may end up missing out on a year of school education, whereas their non-disabled peers are not. As children with EHC plans will, necessarily, have a special educational need and therefore find it more difficult to learn, the impact of losing a year of school is likely to be disproportionally detrimental.

What does the guidance say?

The contrast is most stark when comparing children with EHCPs with their summer-born peers. For a summer-born child without an EHC plan, the government guidance for local authorities states: 

“There do not need to be exceptional circumstances, and a child does not need to have a medical need or SEND for it to be in their best interests to be admitted out of their normal age group.”

In itself, the fact that a child with an EHCP plan must prove a special educational need to access the same benefit as their non-disabled peers, seems to be unfavourable treatment. Furthermore, once a child without an EHCP has been admitted to school out of year the usual group, the summer-born guidance is clear:

The government believes it is rarely in a child’s best interests to miss a year of their education, for example, by beginning primary school in year 1 rather than reception, or secondary school in year 8 rather than year 7

For children with EHC plans, there is no such guidance, resulting in inconsistent & discriminatory practices impacting them unfavourably.

Blanket policies are unlawful

Earlier this year, I visited a local SEN school as a potential option for my child, who has an EHCP. I mentioned to the headteacher that my child is out-of-year, having started reception at age five. The Head immediately responded to say my child would be moved to be with their chronological peers if allocated a place at the school. I explained that this would result in my child missing out on a year of school education and that in light of the nature of their needs, losing a year would be extremely detrimental. I was told that the council move all children to be with their chronological age group on admission to that school.

Some local authorities have written policies, including wording such as: “Where a child with an Education, Health and Care Plan transfers from mainstream to specialist provision, they will be expected to do so in their chronological year group.”[3]

Such blanket policies fail to take account of the requirement to have due regard to the Public Sector Equality duty, which includes the duty to eliminate discrimination and to advance equality of opportunity between people who share a relevant protected characteristic (in this case, a disability) and those who don’t. There is also the separate duty not to discriminate against disabled people by treating them unfavourably because of something arising as a consequence of their disability.[4]

It may be the case that in a specialist setting, grouping children together in ability groups is appropriate, but to insist that any child should miss out on a whole year of school, cannot be justified.

Children with an EHCP may be able to continue in education and training until the age of 25. However, education post-16 takes on a very different shape to school education. How can it be that non-disabled children need 12 years of school education, but disabled children can seemingly make do with only 11?

Daisy Cooper MP, questioned the Secretary of State for Education about this issue on 14 June. The response, dated 22 June, confirmed that the Department was considering the issue.[5] Ms Cooper chased the issue on 13 October and a response was provided on 25 October, confirming that:

The Department will be publishing additional guidance on school admission for summer-born children with an Education, Health and Care Plan in due course.”

The longer it takes for equivalent guidance to be issued, the more it allows for further disabled children to be treated unfavourably.


  1. Paragraphs 2.18-2.20
  2. Children and Families Act 2014 section 19 states that the local authority must “have regard to […] the views, wishes and feelings of the child and his or her parent
  3. Example 1; Example 2
  4. Equality Act 2010 section 149 and section 15 respectively. This is based on the assumption that children with EHC plans will, in most cases, meet the definition of being disabled under section 6 Equality Act 2010.

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