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Abraham's Appeals . . .
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Author:  abraham [ Sat May 25, 2019 10:35 am ]
Post subject:  Abraham's Appeals . . .

Firstly, thank you to everyone who gives such valuable advice on this forum - it is so much appreciated, and I'm pretty sure I have read everything on here (though probably not retained it all, more's the pity!) I have put off asking for help so far because I feel I have already infuriated the authorities enough just trying to gather all the info for my appeals (and yes, for those of you who have wondered, they really do 'stalk' these forums - or at least some of them do anyway . . .) Anyway, I'm going to try and keep it together and stick to the bare essentials.


My DC did not qualify (borderline) so we are appealing on non-qualification and over-subscription. We are in catchment(and the in catchment places were not all filled on offer day) so DC would definitely have got a place had they passed. We have had one appeal (not upheld) and one to go. My question is with regards to the decision making process - it seems, from the SAAC, that the panel should first have decided on the 'non-qualification' issue before proceeding to 'prejudice' (presumably, if they thought the alternative academic evidence was not 'sufficient', they would not even need to consider 'prejudice' as the appeal would be dismissed at that point?) However, the decision letter does not give a clear decision on this - it simply says they had to consider whether there was 'sufficient' academic evidence, lists a few things that were covered in the appeal, and then goes on to say that the appeal was dismissed on the grounds of 'prejudice'. Am I right in thinking that the letter should also have told me what they had decided on the 'non-qualification' issue first? At the moment, DC cannot go on a waiting list due to non-qualification but I had thought that (if the IAP had found in DC's favour on non-qualification, but not on prejudice,) we would maybe have a case to ask for DC to join waiting list? This would then just put DC in the same position as the qualified appellants whose appeals had been dismissed on 'prejudice' alone. Is there any precedence for this?

Second question is with regards to the hearings. There were a number of issues to do with the first IAP which I felt were in breach of the code, so I have put in a complaint to ESFA. ESFA are currently investigating. When the paperwork came through for the second appeal, it was the same clerk as the first (I realise this is not uncommon). However, is there any guidance on asking for a different clerk to be appointed, given that the clerk will be responding to ESFA complaint on our first appeal at the same time as clerking for our second? The panel itself is different.

Finally, the school's case for the second appeal has also been sent to us. School has made very detailed response to our appeal and made some quite extreme statements about DC not being suitable for the school on the basis of entrance test result alone (this is not a standard appeal statement, and very different to the first school/appeal (who made the point that they were not objecting to the admission of any particular child, but were just over-subscribed) - it's very personalised). Funny thing is they have responded to almost every aspect of our 'grounds for appeal' (except the most inconvenient ones for them, of course!), but have not responded at all to the perfectly text book (under 3.13 of the SAAC) suite of alternative academic evidence that DC's primary have provided. Some of the things they have quoted as fact in their response are not even accurate - I'm prepared to argue my case at the appeal, and am not afraid to do this. However, the points are all mixed in together with more general arguments that relate to the issues of maladministration I have raised. I have learnt from the first appeal that if I don't challenge the school at Stage 1 (in the group) then there is no point in challenging them in Stage 2 (individual) - as, by that point, the panel have already then decided that everything is all above board in terms of the SAC being properly followed. What should I do about this? I don't want to go into all the specifics of our case in the group hearing (and the other parent's will hate me for it if I do, I'm sure!) but, if I don't do this, the panel will take the school's case as is once they progress to Stage 2 (this is what happened last time). This also seems a bit unfair, as you have to submit all your info first (so the school gets a chance to see this, and then respond to it in theirs) but you can't respond to anything the school says until the appeal itself. They have basically skipped to the 'Stage 2' bit of challenging my arguments, in advance of the hearing. Will I just have to grit my teeth and air all our dirty linen in public, as they say, or is there a way round this?

Huge apols. for the long winded questions! Hoping someone will take pity on me and help - all this stuff is literally driving me round the bend :?

Author:  Etienne [ Sat May 25, 2019 3:41 pm ]
Post subject:  Re: Abraham's Appeals . . .

abraham wrote:
My question is with regards to the decision making process - it seems, from the SAAC, that the panel should first have decided on the 'non-qualification' issue before proceeding to 'prejudice' (presumably, if they thought the alternative academic evidence was not 'sufficient', they would not even need to consider 'prejudice' as the appeal would be dismissed at that point?) However, the decision letter does not give a clear decision on this - it simply says they had to consider whether there was 'sufficient' academic evidence, lists a few things that were covered in the appeal, and then goes on to say that the appeal was dismissed on the grounds of 'prejudice'. Am I right in thinking that the letter should also have told me what they had decided on the 'non-qualification' issue first?
I think so.
More importantly, the ESFA appear to think so too.
I'm looking at an email from the EFA (as it then was) to one of our forum members in 2017:
      EFA wrote:
      However, Paragraph 3.13 a) effectively requires that there are two decisions to make in an appeal for a selective school where there has not been a local review. First, the panel must decide whether the child is of the required academic standard. Then it must decide whether the admission of the child outweighs the prejudice to the school. On the face of it there is evidence that this process may not have been followed properly, or that the panel’s reasons for their decision were not clearly explained in accordance with paragraph 2.24.
      We will therefore investigate these possible breaches of the School Appeals Code and advise you of the outcome.

Quote:
At the moment, DC cannot go on a waiting list due to non-qualification but I had thought that (if the IAP had found in DC's favour on non-qualification, but not on prejudice,) we would maybe have a case to ask for DC to join waiting list? This would then just put DC in the same position as the qualified appellants whose appeals had been dismissed on 'prejudice' alone. Is there any precedence for this?
Yes, it happens in Buckinghamshire - but I'm aware of other authorities where it doesn't happen.

Quote:
Second question is with regards to the hearings. There were a number of issues to do with the first IAP which I felt were in breach of the code, so I have put in a complaint to ESFA. ESFA are currently investigating. When the paperwork came through for the second appeal, it was the same clerk as the first (I realise this is not uncommon). However, is there any guidance on asking for a different clerk to be appointed, given that the clerk will be responding to ESFA complaint on our first appeal at the same time as clerking for our second? The panel itself is different.
I'm not sure who will be responding to the ESFA - it is often the admission authority rather than the clerk.

The Code makes no mention of objections to the clerk. Objections to panel members happen occasionally, but very rarely with regard to the clerk.

My inclination would be not to pursue this unless the issues were serious (not just technicalities), and you have real concerns about a conflict of interest.

It might even be useful to have the same clerk. If they've been made aware of areas of concern, one would hope that they will be meticulous about doing things correctly the second time. :)

Clerks cannot influence the panel's decisions, so I would have no worries on that account.


Quote:
Finally, the school's case for the second appeal has also been sent to us. School has made very detailed response to our appeal and made some quite extreme statements about DC not being suitable for the school on the basis of entrance test result alone (this is not a standard appeal statement, and very different to the first school/appeal (who made the point that they were not objecting to the admission of any particular child, but were just over-subscribed) - it's very personalised).
It seems to me the first school got this right, whereas the second school might be in breach of footnote 11 of the Code:
      Quote:
      At this stage the characteristics and circumstances of the particular child in question will not, except in extreme cases, be relevant to the question of whether the admission will cause prejudice (R (on the application of M) v Haringey Independent Appeal Panel [2010] EWCA Civ 1103).

Moreover, it seems unfair that the school has included a rebuttal of your case as part of their own case. They have only been able to do this because they've presumably been able to access your case early on.
You, however, have not had the same opportunity to rebut the school case.

If there's to be a level playing field, surely both sides should submit their paperwork to an independent clerk, and the independent clerk should copy all the paperwork to both sides at the same time (a week or two before the hearing).

Quote:
the points are all mixed in together with more general arguments that relate to the issues of maladministration I have raised. I have learnt from the first appeal that if I don't challenge the school at Stage 1 (in the group) then there is no point in challenging them in Stage 2 (individual) - as, by that point, the panel have already then decided that everything is all above board in terms of the SAC being properly followed.
I agree with you that para. 3.5(a) of the Code is a problem when there's a group hearing.
It states:
      Quote:
      3.5 The panel must uphold the appeal at the first stage where:
      a) it finds that the admission arrangements did not comply with admissions law or had not been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied
- and yet the logical point at which to discuss what happened in an individual case is at the individual hearing (stage 2).
It cannot be appropriate for one's individual circumstances to be aired in the presence of other parents at stage 1.

If I were clerking, I would advise the panel to say at the end of stage one "We are satisfied in general terms that the admission arrangements have been correctly applied [if that is their decision], but we will of course consider any individual points brought to our attention at stage two."

Quote:
What should I do about this? I don't want to go into all the specifics of our case in the group hearing (and the other parent's will hate me for it if I do, I'm sure!) but, if I don't do this, the panel will take the school's case as is once they progress to Stage 2 (this is what happened last time). This also seems a bit unfair, as you have to submit all your info first (so the school gets a chance to see this, and then respond to it in theirs) but you can't respond to anything the school says until the appeal itself. They have basically skipped to the 'Stage 2' bit of challenging my arguments, in advance of the hearing. Will I just have to grit my teeth and air all our dirty linen in public, as they say, or is there a way round this?
At stage one, during questions, I'd raise a procedural point. I suggest asking the chair how they want to deal with this dilemma. Do they really want parents to discuss their individual cases openly at a group hearing? Or are they willing to take a provisional decision on the admission arrangements at the end of stage one, and then to consider any individual points brought to their attention at stage 2?

If they insist on dealing with everything at stage one, I would gently query the wisdom of forcing parents to disclose their individual circumstances at a group hearing!

Author:  abraham [ Sat May 25, 2019 11:34 pm ]
Post subject:  Re: Abraham's Appeals . . .

Thank you so much Etienne, I can't tell you how much I appreciate this advice!

I did think that 3.13 in the code implied there were two decisions to be made with regards to non-qualification and over-subscription, so I was kind of expecting to see both outlined in the letter. ESFA have agreed to investigate 'the panel's deliberations process for this complaint', in relation to 3.13, but they have not gone as far on this as they seem to have done for your forum user in 2017. I suspect that the decison letter may have been deliberately vague on the non-qualification issue, just in case I did try and pursue a place on the waiting list (as I had enquired about this previously with both the LEA and the clerk), so it is very interesting to learn that there is a precedence for this elsewhere (even if not everywhere!)

On your advice, I don't think I will push it with the clerk then, as I don't want to be seen to be complaining about every little detail - I did have some concerns with the clerk in relation to the last panel, which I raised with ESFA, but I have no reason to suspect there will be simliar factors at play here. My only real concern is that the ongoing complaint may undermine impartiality - but I am not naive enough to think that any new clerk would not be fully appraised of this by the school anyway.

With regards to the Haringey footnote (I have read the code several times, but it never even occurred to me to read the footnotes too!) does it relate to a judicial review case? I am assuming 'at this stage' refers to Stage 1? Logically, I had thought that both sides would (in theory) submit their cases to the clerk, the paperwork would then be circulated to all parties at the same time, and then the opportunity to question/challenge these would only come about in Stage 1 & 2 respectively - but I couldn't find anything in the code that stated explicitly that this was the case. I had expected the school's case to say something about non-qualification, and that it would not be commensurate with the admissions policy to admit DC, but this is much more than that (I don't want to go into too much detail but it was things like DC would be better off with children in their own ability group, that DC would not be able to keep pace with the other children and would hold them back, would need additional support that the school would not be able to provide etc.) Obvously I will be contesting all of this - on the grounds that DC did not perform at their best on the day of the test - but I feel that the school is rather over-egging it, in that DC was only 2 raw marks short of passing anyway (and that there will also be children in the cohort, with lower raw scores, who have passed). I just wondered how common it was for schools to do this? At the risk of sounding paranoid, I am starting to worry that they are going to a lot of trouble just to keep DC (in particular) out! Can I challenge this with the clerk, or the ESFA, or should I just let it go? What concerns me is that, as you say, the school has had an opportunity to rebut our case (in writing - so the panel will have this rebuttal to hand in thier deliberations) but we have not been given the opportunity to do likewise.

In terms of the Stage 1/2 dilemma, I will do exactly as you advise (and practise how I will say it in advance!) I realise now I should have done this last time - I didn't really fully understand the implications before that once Stage 1 was done, the admissions authority were effectively 'in the clear' over the SAC. I was a bit illadvised on this by the clerk in advance of the hearing, who said that anything individual should be left to Stage 2, but there is a bit of an intersection between the general and the specific in our case and that has complicated things a bit (not least of all in my own mind!)

Thank you so much again for all your help - you really should have a charity 'tip jar' or something on this forum, as the advice you give is invaluable!

Author:  Etienne [ Sun May 26, 2019 5:54 pm ]
Post subject:  Re: Abraham's Appeals . . .

abraham wrote:
I suspect that the decison letter may have been deliberately vague on the non-qualification issue, just in case I did try and pursue a place on the waiting list (as I had enquired about this previously with both the LEA and the clerk)
It's possible, but I think it more likely that everyone gets the same basic letter. They tend to be too busy to personalise the letter beyond referring to the main points of your case.

Quote:
With regards to the Haringey footnote (I have read the code several times, but it never even occurred to me to read the footnotes too!) does it relate to a judicial review case?
It was an Appeal Court judgement.
http://www.bailii.org/ew/cases/EWCA/Civ/2010/1103.html

Quote:
I am assuming 'at this stage' refers to Stage 1?
Yes.

Quote:
Logically, I had thought that both sides would (in theory) submit their cases to the clerk, the paperwork would then be circulated to all parties at the same time, and then the opportunity to question/challenge these would only come about in Stage 1 & 2 respectively - but I couldn't find anything in the code that stated explicitly that this was the case.
You are right.
The Code says only:
      Quote:
      2.10 The clerk must send all the papers required for the hearing, including the names of the panel members, to both the parties and the members of the panel a reasonable time before the date of the hearing........
Although the words "at the same time" are not used, they are implicit because it would be unfair if the parties were treated differently.
If one side is given an advantage, it is arguably contrary to natural justice:
      Quote:
      1.2. Appeal panels perform a judicial function and must be transparent, accessible, independent and impartial, and operate according to principles of natural justice.

Quote:
things like DC would be better off with children in their own ability group, that DC would not be able to keep pace with the other children and would hold them back .....
I am quite frankly appalled that a school should be making that sort of comment in its case.

Even if it were true (which is not so in your case because your child was clearly borderline, and no reasoning test is 100% reliable, so he could just as well have been two raw marks above as two raw marks below), whether or not a child would be better off somewhere else is a consideration for parents, not for an appeal panel.
If an appeal panel goes down the road of trying to work out where a child would be best placed, it's applying the wrong test.
To quote the ESFA (with my observations in brackets):
      Quote:
      First, the panel must decide whether the child is of the required academic standard [not whether the child would cope]. Then it must decide whether the admission of the child outweighs the prejudice to the school [the prejudice of admitting an extra child, not this particular child].

Quote:
I just wondered how common it was for schools to do this?
I'm fortunate in that I never came across it myself, but I am aware that elsewhere it sometimes happens.
I suspect it was less common when LAs were wholly responsible for admissions, and that more mistakes are being made now with the increasing number of academies.

Quote:
At the risk of sounding paranoid, I am starting to worry that they are going to a lot of trouble just to keep DC (in particular) out!
I would be surprised if they are singling out your child. It is probably their standard approach when resisting appeals.

Quote:
Can I challenge this with the clerk, or the ESFA, or should I just let it go? What concerns me is that, as you say, the school has had an opportunity to rebut our case (in writing - so the panel will have this rebuttal to hand in thier deliberations) but we have not been given the opportunity to do likewise.
I would challenge it - ideally at stage one as it's part of the school's stage 1 case.
You would probably be on stronger ground with the ESFA if you'd first raised the matter at appeal, and the panel rejected your concerns.

Quote:
I was a bit ill advised on this by the clerk in advance of the hearing, who said that anything individual should be left to Stage 2
I've some sympathy with the clerk here because she is correctly quoting the Code.
I'm not convinced the Code is adequate on this specific point.

Quote:
Thank you so much again for all your help
You are very welcome. :D

You've raised some interesting questions. Please let us know if we can be of any further help.

Author:  abraham [ Thu Jun 13, 2019 1:55 pm ]
Post subject:  Re: Abraham's Appeals . . .

Hi Etienne,
I just popped back to double check something you had said (in final preparation for our appeal), but was horified to see that I had not thanked you for your last post - so a very belated 'thank you' from me now!
We have our second (and final) appeal next week and, after that, I will add a post of our experiences to the outcomes thread - I have absolutely zero hope or expectation of success, and feel completely disillusioned with the whole thing, but, with the help of you and this forum, I at least feel I'm just about as prepared as I could ever be. Thanks again!

Author:  Etienne [ Thu Jun 13, 2019 9:36 pm ]
Post subject:  Re: Abraham's Appeals . . .

Thanks - and good luck! :)

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