I think there may have been two breaches of the Appeals Code.
Quote:
2.19 Multiple appeals may be heard either individually or in groups. Hearing multiple
appeals individually means holding a series of consecutive appeal hearings. The panel must
ensure that the presenting officer does not produce new evidence in later appeals that was
not presented in earlier appeals as this would mean that appellants whose cases were heard
earlier in the process would not have the opportunity to consider and respond to the new
evidence. If material new evidence comes to light during the questioning of the presenting
officer, the clerk must ensure that the panel considers what bearing that evidence may have
on all appeals.
If the school representative accepted that there would be no prejudice, I would argue that this was "
material new evidence" that should have been made available to all the appellants.
In this sort of situation there is a problem with individual stage ones (as opposed to a group hearing). Unless your appeal happened to be the very first, it can be difficult to make arrangements for other appellants to be brought back and given "
the opportunity to consider and respond to the new evidence". It is likely to disrupt the timetable for the appeals - but that's no excuse for failing to comply with the Code.
Perhaps the panel decided with the clerk that "no prejudice" was not material new information?
It would seem difficult to justify such a decision!
- but what is the evidence that they even considered the matter as required by para. 2.19 of the Code?
There is no mention of it in the decision letter.
Quote:
2.25 The panel must ensure that the decision is easily comprehensible so that the parties can understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors that were raised by the parties and considered by the panel. It must also give clear reasons for the panel’s decision, including how, and why, any issues of fact or law were decided by the panel during the hearing.
I suppose it is arguable that the panel were entitled to give weight to the governors' case for prejudice rather than the evidence of the school representative if they had reason to do so (although one would have thought that the latter completely undermined the former!).
Nevertheless, the evidence of the school representative was clearly a relevant factor which should have been mentioned in the decision letter. It should also have been made clear what view the panel took of the new evidence.
I think it would be worth trying a complaint to the ESFA on these two grounds, referring to paras. 2.19 and 2.25 of the Code.
https://www.elevenplusexams.co.uk/appeals/ombudsman#d6If you need any help filling in the online form (see D6 point 25), please let me know.
It is possible that an explanation for these issues can be found in the clerk's notes (although that would not excuse a decision letter that does not comply with the Code).
You could consider trying to get hold of a copy of the clerk's notes, if you want to, before complaining to the ESFA.
See:
https://www.elevenplusexams.co.uk/appeals/ombudsman#d4Alternatively, you could just leave it all to the ESFA - they will almost certainly want to check what the clerk's notes reveal.
The ESFA will either
• find no fault
or
• find fault and require the panel to improve its procedures
or
• find fault, require the panel to improve its procedures, and order a re-hearing with a different panel (but only if there has been a serious injustice).
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