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PostPosted: Thu Sep 16, 2010 9:52 pm 
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Having exhausted all the usual channels (and ourselves) we would be very grateful for any advice from this forum as we head towards our second pair of appeals.

DD had a complete blip on the day of the 11+. Had always been predicted to pass easily, but just made the waiting list for one grammar school and missed the list for another (with a higher minimum score requirement). We lost both first appeals; made a case that the local review process (LRP) was not “fair, consistent and objective”; and have been awarded second appeals to both grammars.

Q1. We (now!) understand that the panels for the first appeals would have taken no account of the (very strong) evidence of DD’s ability, since at the time they would have believed that the LRP was valid. While the Authority have granted second appeals, they have not put in writing that the LRP was flawed, and therefore that the new panel not only can, but should, make its own assessment of DD’s ability. Clearly, given the chain of events, it would be perverse if the panel did not, but what can or should we do to check or ensure that they will?

Q2. We have received conflicting advice on what we need to demonstrate or prove:
- Do we need to satisfy them of grammar ability, or is making the waiting list evidence enough?
- Do we need to provide satisfactory mitigating circumstances as well? We thought that we did, but an article on the Administrative Justice and Tribunals Council website by John Chard of School Appeals, says “If a child has not passed the grammar school test, parents will have to show that there were mitigating circumstances OR (my emphasis) that their child is suitable for a grammar school education”.
- Do we need to do yet more?

Thank you for any input.


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PostPosted: Fri Sep 17, 2010 4:32 pm 
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Dear Oakleaf

Before I try and address your questions, could you clarify the reason given for the re-hearings? What did the authority do wrong? Has it now been conceded that the review was not fair, consistent and objective - and is it clear that the review will not be an issue you have to challenge at the re-hearings?

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PostPosted: Mon Sep 20, 2010 10:18 am 
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Etienne, sorry for the delay...

The LEA didn't confirm the grounds on which they had granted the second appeals.
Our case was that both appeals panels had asked questions regarding the apparent absence of a head teacher's referral, and appeared to attach significance to its absence. However, we knew that the HT had contacted the LEA as soon as she saw the DD's result, because it was so far short of expectations. The HT clearly intended this as a HT referral, was not told at the time she needed to do anything more or different, and indeed later was told (verbally) that she had done all that she should have done. So we said (among other things!) that
a) surely the HT referral was a matter for the Local Review Process rather than the appeals panel, and
b) if the fact of the HT's (intended) referral was not considered by the LRP, and would have been viewed as significant, then that process was flawed.

So since our only ground to the LEA was that the LRP was not "fair, consistent and objective", and they have conceded a second appeal, we believe that we shouldn't be required to prove that case again.

[I will send to the AppealsBox our letter to the LEA]


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PostPosted: Mon Sep 20, 2010 4:22 pm 
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Thanks for the info. You worded your complaint very well, and clearly have a good understanding of the process!

Quote:
Q1. We (now!) understand that the panels for the first appeals would have taken no account of the (very strong) evidence of DD’s ability, since at the time they would have believed that the LRP was valid. While the Authority have granted second appeals, they have not put in writing that the LRP was flawed, and therefore that the new panel not only can, but should, make its own assessment of DD’s ability. Clearly, given the chain of events, it would be perverse if the panel did not, but what can or should we do to check or ensure that they will?
Only by writing to ask - but I recognise that some authorities/appeal administrators can be more helpful than others! :roll:

Another possibility (but leaving it very late) is to ask the chair at the start of the hearing. Strictly speaking, the chair is meant anyway to offer an explanation of what will happen:
Quote:
2.31 At the start of the hearing, the panel chair must:
..........
b) explain the procedure clearly and simply, giving details of the issues which the panel will be addressing .....
I have the distinct impression, though, judging by comments we've had on the forum, that the (already complicated) process can be rather murky in your part of the world! :roll:

Quote:
Q2. We have received conflicting advice on what we need to demonstrate or prove:
- Do we need to satisfy them of grammar ability, or is making the waiting list evidence enough?
Grammar school ability, yes. However, an appeal panel must not be told where someone is on the waiting list.
Quote:
3.51 The School Admission Code at paragraph 3.19 requires admission authorities to maintain waiting lists for oversubscribed schools. When hearing appeals, panels must not take account of where the admission authority has placed a child on the waiting list, or of the fact that appeals have not been made in respect of other children on the waiting list.
3.52 When making decisions on appeals, panels must not determine where a child should be placed on that list.

Quote:
- Do we need to provide satisfactory mitigating circumstances as well? We thought that we did, but an article on the Administrative Justice and Tribunals Council website by John Chard of School Appeals, says “If a child has not passed the grammar school test, parents will have to show that there were mitigating circumstances OR (my emphasis) that their child is suitable for a grammar school education”.
Both (either might be sufficient on its own, but you are not restricted, and I feel it would have been better if he had written "and/or").

Incidentally, although I understand what you mean by the panel "making its own assessment", it's a phrase best avoided (see following extract from the Code). It would be better to talk about the panel 'taking into account the academic evidence'.
Quote:
3.37 Where there is no local review process (as described in paragraph 3.34) or no local review process has been applied, the panel should consider any factors which appellants contend may have affected the child’s performance (e.g. illness, bereavement); whether the family made the admission authority aware of these before they sat the test; and whether it offered alternative testing arrangements or made reasonable adjustments (e.g. in the case of children with disabilities). The panel may then need to consider any clear evidence presented by the appellants to support their claim that the child is of the required academic standard e.g. school reports giving Year 5/Year 6 SAT results or a letter of support from their current or previous school clearly indicating why the child is considered to be of grammar school ability. The panel must not devise its own methods to assess suitability for a grammar school place unrelated to the evidence provided for the hearing. In determining to uphold an appeal, the panel must be satisfied that there is evidence to demonstrate that the child is of grammar school ability and, where applicable, that the appellant’s arguments outweigh the admission authority’s case that admission of additional children would cause prejudice.
3.38 Where a local review process has been followed, the panel must not make its own assessment of the child’s ability, but must consider whether each child’s review was carried out in a fair, consistent and objective way e.g. whether the same type of evidence was used in all cases. If there is no evidence that this has been done, the panel must follow the process in paragraph 3.37.

Well done on getting this far!

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PostPosted: Mon Sep 20, 2010 10:08 pm 
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OK - Thank you, Etienne.

On Q1 (will the panel take into account the academic evidence in our case), the LEA have said that, because the panels are independent, they (the LEA) cannot instruct or guide them. We have addressed the issue in our document for the panel, so it will have to be discussed.
[document in AppealsBox]

One more query, please: how do the panels assess whether "the appellant’s arguments outweigh the admission authority’s case that admission of additional children would cause prejudice".
a) are there any guidelines that we can read?
[and if not]
b) how do they balance the (reasonably objective) prejudice to the school (e.g. numbers of desks, floor areas, etc.) with the (necessarily pretty subjective) case for the child? Apples and oranges?
c) at one level, the prejudice to each child is the same, i.e. they miss out on grammar education. But the fact that so few grammar appeals succeed (in this area at least), plus some bits of information from people at the LEA, suggests that the prejudice issue is a very significant differentiating factor. So, for appeals heard after the start of the September term, could the school where the child has now started be a relevant factor? i.e. (and hypothetically, of course) would child A at "bog standard comprehensive" have a stronger case than child B at a private school?

Many thanks.


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PostPosted: Tue Sep 21, 2010 12:44 am 
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Quote:
the LEA have said that, because the panels are independent, they (the LEA) cannot instruct or guide them.
I think this is correct as far as academic evidence is concerned - it's more a question for the people administering appeals; whereas any questions about the exact status of the review would be a matter for the admission authority.

Quote:
One more query, please: how do the panels assess whether "the appellant’s arguments outweigh the admission authority’s case that admission of additional children would cause prejudice".
a) are there any guidelines that we can read?
I'm afraid not. It's up to each individual panel's judgement.

Quote:
[and if not]
b) how do they balance the (reasonably objective) prejudice to the school (e.g. numbers of desks, floor areas, etc.) with the (necessarily pretty subjective) case for the child?
There was some discussion here about assessing the parental case:
viewtopic.php?f=35&t=6600&p=69312&hilit=My+experience+was+that+panel+members+each+gave#p69312

It's not too difficult for an experienced panel to decide in broad terms whether a parental case is weak, average or strong - taking into account (if applicable) catchment area, proximity, siblings on roll, any logistical difficulties relating to parents' work / siblings at different schools, matching the child's specific strengths to what is on offer, any compelling social/medical needs, etc.

With regard to the authority's case, the main concern might well be how overcrowded individual classes are, and the impact this might have in terms of the quality of education and sharing of resources.

When balancing the two cases, it's certainly a very subjective judgement, but should be quite straightforward if one side's case is felt to be strong, and the other weak. Where cases are evenly balanced, the decision could easily go either way.

I'm afraid the success rate for appeals varies widely in different areas.

Quote:
c) at one level, the prejudice to each child is the same, i.e. they miss out on grammar education.
I'm a bit wary of talking about 'prejudice to the child' as it's not a phrase I recollect being used in the Code. You are appealing for a school, rather than against something (so beware of a long list of reasons for not wanting any alternative school). I'd also be cautious about arguing for a 'grammar education' in general, as the appeal is about a place at a particular school.
What is being 'balanced' are the positive reasons for seeking a place at the school in question - against the prejudice to the school.

Quote:
for appeals heard after the start of the September term, could the school where the child has now started be a relevant factor? i.e. (and hypothetically, of course) would child A at "bog standard comprehensive" have a stronger case than child B at a private school?
I hope not - for the reason I've outlined above (i.e. the focus should be on the parents' positive reasons for wanting/needing a place).

Having said that, I would concede that winning the sympathy of the panel can be useful (especially if the decision is finely balanced), and if child A is from a very deprived background, it's not impossible that a panel might be influenced, albeit at a subconscious level. Equally, they might be sympathetic if the parents of child B were to say that they are in desperate straits financially and cannot continue to fund private education.

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PostPosted: Tue Sep 21, 2010 10:19 pm 
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And I thought we had posted late in the evening - What superb service!
Many thanks, Etienne.

We will let you know how we get on with both appeals. First one tomorrow...


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PostPosted: Tue Sep 21, 2010 10:29 pm 
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Good luck!

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PostPosted: Fri Sep 24, 2010 1:55 pm 
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AGS appeal - not successful, I'm afraid. Even though they have had two people leave in year 7 and are therefore back down to their PAN of 90. We pointed out that they had now planned the year for 92, but that didn't work!

Thought we made a better job of both our submission and presentation, but it didn't help that the LEA had included both our old paperwork and our revised/improved set in the pack to the panel. While the two were not wholly inconsistent, we had refined our arguments, so it was annoying that the panel had been able to see the changes. Whether that counts as maladministration - and even if it does whether a) it would make any difference and b) we could face going back for yet another go - I don't really know.
We noticed that they had done the same thing for our other second appeal, but when we rang the LEA they said that the packs for the panel hadn't been sent and could be corrected - very odd, since they would all have been photocopied together, and ours had obviously been posted at least the previous day. Or am I just being paranoid?!

One thing was rather odd. The PAN was assessed in 2004 (at 90). It was challenged in a hearing in 2007. According to the LEA, they stopped the hearing, made a reassessment (still 90) and then continued with that batch of appeals. A new block was built in 2008/9, so naturally in part 1 of our hearing it was suggested that, if it were reassessed now, the PAN was likely to be higher. Naturally they had a list of reasons why not (!), but since this matter came up in at least two batches of hearings this year, and quite likely others either this year or earlier, why on earth would they not just do a reassessment? The cynic in me knows, of course...

Now got to get our heads around the other second appeal next week...

Thanks again for all the help.


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PostPosted: Fri Sep 24, 2010 3:57 pm 
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Oakleaf wrote:
AGS appeal - not successful, I'm afraid.
So sorry to hear this.

Quote:
Even though they have had two people leave in year 7 and are therefore back down to their PAN of 90. We pointed out that they had now planned the year for 92, but that didn't work!
I'm afraid this particular argument rarely works. I'm not sure schools really plan for an extra two pupils (as they would have to for an extra class) - I suspect they muddle through! :)

A harder question for them to answer, where applicable, is: "If you have ever been above PAN in the past, what evidence is there that it actually caused prejudice?"

Quote:
Thought we made a better job of both our submission and presentation, but it didn't help that the LEA had included both our old paperwork and our revised/improved set in the pack to the panel. While the two were not wholly inconsistent, we had refined our arguments, so it was annoying that the panel had been able to see the changes. Whether that counts as maladministration - and even if it does whether a) it would make any difference and b) we could face going back for yet another go - I don't really know.
Only the ombudsman could decide whether it's maladministration, but, in the event of a re-hearing, it doesn't sound right to me that the new panel should have any paperwork relating to the previous appeal - although, if anyone chose not to send in a fresh submission, it would make sense in that situation for the previous submission to be used.

Quote:
We noticed that they had done the same thing for our other second appeal, but when we rang the LEA they said that the packs for the panel hadn't been sent and could be corrected - very odd, since they would all have been photocopied together, and ours had obviously been posted at least the previous day. Or am I just being paranoid?!
One would have thought all the papers would go out at the same time, but there are probably occasions when it doesn't happen.

Quote:
One thing was rather odd. The PAN was assessed in 2004 (at 90). It was challenged in a hearing in 2007. According to the LEA, they stopped the hearing, made a reassessment (still 90) and then continued with that batch of appeals.
I would have thought it must have been quite a strong challenge, as a decision to adjourn a multiple appeal would not be taken lightly.
Quote:
A new block was built in 2008/9, so naturally in part 1 of our hearing it was suggested that, if it were reassessed now, the PAN was likely to be higher. Naturally they had a list of reasons why not (!), but since this matter came up in at least two batches of hearings this year, and quite likely others either this year or earlier, why on earth would they not just do a reassessment? The cynic in me knows, of course...
A new block doesn't necessarily lead to a higher PAN. The net capacity may or may not increase depending on whether there is extra capacity (e.g. does the new block replace anything?). Even if there is an increase in net capacity, that doesn't have to be the only factor taken into account in determining the PAN.

The best approach in this sort of situation is just to probe a bit. "How often are you required to recalculate net capacity? How many pupil workspaces was the new block planned for? Did it replace anything? If so, has the original accommodation been redesignated for use other than as pupil workspaces, and how many pupil workspaces have been lost?"

Quote:
Now got to get our heads around the other second appeal next week...
Good luck! Don't hesitate if you want to run anything past me.

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