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.
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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.
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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.
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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:
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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).
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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:
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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."
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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!