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

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.

Yes, it happens in Buckinghamshire - but I'm aware of other authorities where it doesn't happen.

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.


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).

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."

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!

_________________
Etienne

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!

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.

It was an Appeal Court judgement.
http://www.bailii.org/ew/cases/EWCA/Civ/2010/1103.html

Yes.

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.

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].

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.

I would be surprised if they are singling out your child. It is probably their standard approach when resisting appeals.

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.

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.

You are very welcome.

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

_________________
Etienne

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!

Thanks - and good luck!

_________________
Etienne

Hello again I keep saying I will add my cases to the feedback thread just as soon as they are resolved (but they now seem even further away from resolution than ever!) My DC's cases have got quite complicated . . . The first is with the PHSO currently (so I'm letting that one go, for now), the second is just about to be reinvestigated by the ESFA.

I have received 2 letters from the ESFA this week: One to say that they have upheld a number of my Stage 1 complaints, and will be opening a new investigation - and the second was a complaint summary for the new investigation. I am wondering if it would be possible to send these to the appeals box for you to take a look at? The reason for this is that I am just in the process of compiling a response to the new complaint summary and I know from past experience that, if the complaint summary is not properly worded from the outset, you have zero chance of the ESFA finding in your favour in the actual investigation. So I'd really appreciate an experienced pair of eyes on what they've sent me. I will still outline the general issues here though, so that other users might benefit from any feedback I receive.

Some of the issues relate to those already discussed in this thread back in the summer - the issue of the school being allowed to provide a (personalised) written rebuttal of our case in advance of the hearing, and the aspects of the school's case around prejudice which related to the Haringey footnote in the code.

On advice from this forum I raised a couple of procedural points at the hearing on these issues (I had also written to the school in advance of the hearing, to give them an opportunity to withdraw these aspects of the case). At the hearing itself, I said that it would be inappropriate for me to respond to these matters in the group at Stage 1, and was therefore requesting they make a provisional decision only at the end of Stage 1. I can't remember the exact wording I used, but I had it pre-prepared (based on the advice Etienne had given) and read it out to make sure there was no confusion. However, on both of these issues, the chair's response was 'it's not for us to consider'. The ESFA later said (in their report) that the panel would not have been allowed (under the terms of the code) to make a provisional decision at the end of Stage 1 anyway, but I think Etienne said previously that this does sometimes happen? As the school's case was upheld in full at Stage 1, I was not then allowed to challenge any of this stuff at Stage 2 (I double checked this at the beginning of Stage 2 too) - even the issues around prejudice. The ESFA are still saying it was acceptable for the school to include a written rebuttal of our case, so they are not upholding my complaint in this respect (but I will challenge this in a Stage 2 complaint if a fresh appeal is not now requested as a result of this new investigation anyway). What they have conceded they will now investigate is the breach in relation to the Haringey footnote - this is a major breakthrough, as they would not even investigate this before, so I really want to make sure I get the wording on this right.

Following on from these breaches to the code that were already known about in advance of the hearing, there then followed a number of other issues. Quite importantly, I was not allowed to ask any questions regarding whether the SAC had been properly complied with. After I had raised the procedural points (as one of the first questions in Stage 1) about the appeal hearing itself, I had made the chair aware that I still had other more general questions to ask. He said he would come back to me at the end. There then followed a number of questions from other parents (some of which were not really relevant to the appeals process, but were allowed anyway). However, when the chair came back to me at the end, and I asked my first question to do with the SAC, I was told again 'it's not for us'. I then tried to ask a question regarding the error rate in the marking of the 11+ specifically at the school in question (which I had found out from FOI was very high) as I felt it was relevant for borderline cases such as my DC's (particularly as the school had made such an issue of saying, in my DC's case, that to admit them would prejudice the learning of other children - on the basis of the test result alone). However, the chair and the clerk both intervened at this point to say this question was not allowed - and I was not allowed to ask any further questions. The ESFA said in their investigation that, although the clerk's notes showed that some questions were disallowed, they also showed that a number of other questions were allowed from a number of other parents - and therefore the code had not been breached. I have said that it is irrelevant to my case that other parents were allowed to ask all manner of questions, since they were not the same questions that I myself wished to ask. In some ways, it could be argued that I have been discriminated against in the process - as I was not given the same opportunity to ask questions as other parents. I'm still not really sure why this happened on the day, and can only really conjecture on this - cynically, it might be that the school 'tipped them the wink' before the hearing, or it might just be that the clerk and the chair concluded early on that I was being awkward and therefore falsely assumed that all my questions were disallowable. The ESFA now accept that no reasonable explanation has been given for all of this, but I again want to ensure that the complaint is properly worded this time. My hunch is that they will admit maladministration (as they have now done in my other case) but they will say it would not have affected the result anyway. Just in case anyone is wondering, I was perfectly calm and polite throughout both stages of the IAP - and I had pre-prepared my questions in writing, in advance, so I know that my questions were clear too. I was nervous, but I was coherent.

The other issues I have are to do with Stage 2 of the IAP, and the note-taking/decision making process. They did not take the alternative academic evidence into account, and the notes are inaccurate/limited. I also have an issue because the handwritten notes were destroyed only after they were requested by the ESFA (and also via a SAR from me). Since there is an issue with the accuracy of the typed notes, I believe the handwritten notes should have been retained. Even though the decision making notes are practically non-existent, they still do not match the reasons given for the appeal failing in the decision letter. The only reason given for the appeal failing in the clerk's notes is that DC failed the test (completely unacceptable that their decision should be based solely on this, when you consider 3.13 a) i & ii of the code, but this is the accepted practice of IAP's in our area). I do not think the ESFA properly understand this issue either.

There is also a question over the impartiality of one of the panel members but my feeling is that, even though the ESFA are reinvestigating this matter, it is not worth me pursuing it to any degree - because my appeal was dismissed unanimously (I think the ESFA will say that, even if a different panel member might possibly have upheld my appeal, it is irrelevant because the other two would have outvoted them anyway?)

I think the issues around the school's case around prejudice (Haringey) and the fact that my legitimate questions around the SAC not being allowed are more 'winnable' but, as they are to do with Stage 1, will the ESFA be able to say they could not have impacted on Stage 2? What I am keen to avoid is what's just happened with their reinvestigation into my other case - where they have said there was maladministration but no injustice.

Please let me know if it would be ok to send this week's ESFA letters, or anything else that might be helpful? I hate to take up so much of everyone's time, but there hopefully may be aspects in this case that are helpful for others going forwards in this year's round of appeals.

Many thanks for reading!

P.S. On a slightly unrelated note, I have seen in the past that many members have thought previously that exam scripts were exempt from SAR's. However, I have it confirmed in a letter from the ICO (and echoing the guidance on the ICO website, if you read the smallprint) that only the information your DC records is exempt (ie their answers) but not anything else that is written on the paper (marks, notes, comments etc. from the marker/moderator/verifier) and any identifying marks. However, if the school/examining body refuses access, the ICO will basically write to them and tell them they are breaking the law and that they should comply with your request - but the ICO will not actually enforce the law, so your only real recourse is to go to the courts. I only half-heartedly pursued this line of investigation to begin with (as I thought it would only be helpful to have DC's actual answers). However, as time has gone on (and following a couple of strange incidents, including the clerk for the appeal sending us correspondence relating to a different child with the same name) I have begun to wonder if there isn't something a bit fishy going on with the exam papers themselves. Particularly as I know other parents in our area have been given sight of papers in appeals (albeit without appropriate notice, as other posts to this forum have shown) and that the ICO has written to the school to tell them that they are literally breaking the law by not complying with my request . . . I can only assume that they wouldn't want to risk a court case through malice alone, and that they must therefore have some other reason for non-compliance. I thought this might be helpful for parents who are preparing for his year's round of appeals to know about. Also, if the ICO receive enough complaints about individual schools, they may consider enforcement in the future - as they hold all complaints on file.

Many thanks for the update, Abraham.

I'd be very happy to look at the correspondence via the appeals box, if you would post any very specific questions here on the forum. (I'm afraid I may be slow to respond, though, as I'm dealing with a lot of issues at the moment.)

Very interested to hear about the clarification from the Information Commissioner - will add this to the Q&As when I have time.

_________________
Etienne

Thanks so much Etienne - I have sent the two most recent letters from the ESFA (plus the letter from the ICO, for your info).

My main question really is around maladministration/injustice - is there any way I can tweak the wording of the complaint summary now, so that it is harder for the ESFA to later conclude that there was maladministration but not injustice? I'm pretty sure they're going to conclude there was maladministration, but that it did not impact on the outcome - but I don't really understand how they can ever really know for sure whether something influenced the outcome or not? Esp. when the clerk's notes are both limited, and inaccurate.

There's not really anything else I can do at this stage of the process (other than query the wording of the complaint summary) so, if you do spot anything I might be missing, I'd really just appreciate a heads up. I'm getting to the point now where I can't really see the wood for the trees!

If they still don't request a fresh appeal after this, I will persist with both the issue of the school being allowed to provide an individualised written rebuttal of our case, as well as the issue of the panel only considering the test result itself, in a Stage 2 complaint (as these are not being considered as part of this investigation).

Any feedback you can give will be much appreciated!

Sorry, Abraham, but it was only when I sat down to go through the correspondence this morning that I realised I'd missed the ESFA deadline.

However, to be honest I don't think I could have tweaked the existing wording in such a way as to make a finding of serious injustice more likely.

I am full of admiration for the way you have handled your case.

It's remarkable to have 6 complaints against the ESFA upheld!

This is a knotty problem.
Although it is true the words "provisional decision" do not appear in the Code, what would happen with a series of individual appeals (para. 2.19 of the Code, no group hearing) if new information about the school case came to light after the first hearing? One assumes that at the first hearing the panel takes a decision on stage one, and the expectation is that this is final because the identical school case is going to be presented at all the remaining hearings. However, para. 2.19 recognises that things could change:
"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."
This is a bit vague, but what it means is that previous appellants might have to be recalled so that they are made aware of, and can comment on, the new information, and the panel might have to revise its decision on stage one!

It is arguable, then, that implicitly the Code recognises the possibility of provisional decisions on stage one.
Admittedly, there is no reference here to group hearings.

So what would happen in the following situation? A group hearing takes place, after which the panel decides the admission arrangements have been correctly applied, but at stage 2 a panel member for some reason queries the distance being used in an individual case. The representative of the admission authority goes off to check, and returns with an acknowledgement from the LA that there's been an error. The appellant in fact lives within the cut-off distance, and should have been allocated a place.
It's a true story. Does the ESFA really imagine that the stage one decision cannot be changed?

The ombudsman used to take a pragmatic, common sense approach to group hearings:

The Local Government Ombudsman wrote:
Sometimes, where there are a large number of appeals, the arrangement is that the admission authority’s general case is heard once, in the presence of all the parents. The Appeals Code suggests that the panel could make a decision about prejudice before moving onto the second stage of hearing the appeals of individual parents. We are doubtful ourselves about that suggestion because there may well be parents who could not attend the group session but who have, nonetheless, points they want to make about the general case. It seems to us more prudent that, after the group appeals, the panel should form a provisional view about prejudice but be prepared to revise that in the light of anything which may emerge when all the appeals have been heard.

As the ESFA reject a provisional stage one decision on the basis that there's no specific mention of it in the Code, one might have thought that using the same logic they would reject a written rebuttal of the other side's case in advance of the hearing as it's not specifically allowed for in the Code.

As far as natural justice is concerned, I suppose it depends on the time scale, and whether you were given an equal opportunity to respond to the other side's case.
The case papers must be sent out "a reasonable time before the date of the hearing", and that - I think - should be the first time each side sees the other side's case. "Reasonable time" is not defined, but in many authorities it is in practice one to two weeks.
Did the school submit a separate rebuttal of your case - as late evidence - after the case papers were distributed?
Or was it already part of their case when the papers were first circulated? If it was already in their case, was it confined to information they had already had access to (such as the test score), or did it respond to information that they could only have obtained from your appeal case? If the latter, then it sounds as if they had access to your case before you had sight of theirs.

Please do keep us informed of developments.

_________________
Etienne