Appeal next Monday - question for Etienne - please help

[Etienne]

Glad to be of some help.

If you have any concerns about the hearing or decision letter, do come back to us.

Good luck!

[everything crossed]

Thanks Etienne - sorry, one more thing. Taking on board your comments, I have re-worded my question to the Appeals Clerk. Please would you tell me what you think.

“Before I begin, I wonder if I may clarify something? As I understand it from reading the School Admissions Appeals Code, if the panel are satisfied that both criterion laid out at 3.13(a) are satisfied, the appeal should be allowed. However, the School has suggested in emails to me that an evidenced reason and close rank order are also determining factors, ie even if 3.13(a) is satisfied the claim could be refused on the other grounds, which appears to me could be in breach of code 3.14. Please would you confirm exactly what factors the Panel are permitted to base their decision on?”

You will see that I also mention close rank order. I found another email from the school which says "Successful appeals are usually for children with rank orders close to the successful candidates, with evidence of a clear reason for under performance on the day and evidence that the child is otherwise of comparable ability to those admitted".

[Etienne]

I'll reflect on this and come back to you later today.

I cannot help wondering whether this is how they've always operated.
I'm sure they're aware of the 2012 Code, and yet there are echoes of the 2008 and 2009 Codes which had the following wording:
"....... the panel should consider any factors which parents contend may have affected their 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 parents 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 parents’ arguments outweigh the admission authority’s case that admission of additional children would cause prejudice."

[everything crossed]

Thank you Etienne. Sorry if I seem pedantic, but I work in law and as you can probably appreciate, cases are won and lost on the strength of what wording is applicable at what time. I would suggest that, as the 2012 code superseded the previous one rather than amended it, the previous wording is strictly speaking now null and void.

[Etienne]

I think you may have misunderstood me .....

I'm just wondering if there's a 'mindset' here that goes back to the previous Codes - I'm not for one moment suggesting they should do other than operate in accordance with the current Code!

[everything crossed]

Sorry Etienne, wasn't inferring that you were suggesting they should apply the 2008/2009 codes, but thought that you meant that you wonder if sometimes panel members might do so (after all, as you say, with a carefully worded rejection letter, who's to know)? Didn't mean to sound like I was having a go at you, I wasn't I promise

Really want to try and make my point without offending anybody but (as you've already noticed) I am not the most tactful person in the world! Maybe instead of "which appears to me could be in breach of code 3.14", it would be better to say something like "which used to be deciding factors in the 2008/2009 Codes, but which I believe were removed when the 2012 Code came into effect". Do you think that would be better?

[Etienne]

No problem!

..... thought that you meant that you wonder if sometimes panel members might do so

I was musing about this particular panel. I suspect they've become very set in their ways, and haven't really taken on board the revised wording applicable since 2012 (as they should have done).

“Before I begin, I wonder if I may clarify something? As I understand it from reading the School Admissions Appeals Code, if the panel are satisfied that both criterion laid out at 3.13(a) are satisfied, the appeal should be allowed. However, the School has suggested in emails to me that an evidenced reason and close rank order are also determining factors, ie even if 3.13(a) is satisfied the claim could be refused on the other grounds, which appears to me could be in breach of code 3.14. Please would you confirm exactly what factors the Panel are permitted to base their decision on?”

After much reflection, I would suggest keeping it as simple as possible!
Let the conversation develop naturally - possibly along these lines:
"Before I begin, I wonder if you could possibly clarify the process for me? I know how busy you must be and don't want to waste the panel's time with anything that might not be relevant.
Am I right in thinking that, for a successful appeal, just two tests have to be satisfied? - evidence that the child is of the required academic standard, and arguments that outweigh the prejudice to the school?"

• • [mention "para. 3.13" only if necessary to point them to the key wording]
    [wait for response]
    [if appropriate, hand over copies of emails]

"I can't quite reconcile the guidance from the school in these emails with the two tests set out in the Code. Can you help me?"

For what it's worth, I think the less 'lawyerly' the approach, the better - my advice would be to present as 'puzzled parent'!


I touch upon winning over the panel in what I write about 'summing up':
http://www.elevenplusexams.co.uk/appeal ... cation#b49" onclick="window.open(this.href);return false;

The thing about appeals is that it helps to get the panel 'on side' (if at all possible!). Decisions are made on the basis of quite subjective judgements. No one can really define 'grammar school suitability' in terms of alternative academic evidence because nothing is directly comparable to the 11+. For every bit of academic evidence you come up with - if I wanted to, I could come up with a reason for saying it's insufficient!
Similarly, what outweighs the prejudice to the school is very much a matter of opinion.

I think all you can reasonably do is:
• gently try and steer them towards the 'correct criteria',
• put forward the best possible case you can,
• try to win the panel over at a very human level - ideally to the point that they are looking for reasons to allow the appeal!

Contrast this with a complaint to the EFA which - if it should become necessary - would have to be quite legalistic.

[everything crossed]

Thank you again Etienne; I totally take on board your comments and will be using your wording. do I say this right at the beginning before the school have presented their case, after the school have presented their case but before I have asked my questions of the school or after I have asked my questions but before I present my case?

I was musing about this particular panel. I suspect they've become very set in their ways, and haven't really taken on board the revised wording applicable since 2012 (as they should have done).

It might be a good thing then that they wrote to say they had to replace one member of the panel because one of the appellants knew them, so perhaps they are bringing some fresh blood in. I was a little worried about it because originally they had two laypeople and one education person, but one layperson was replaced with an education person and I thought that maybe they would be inclined to take the school's view just because they are also in education. Perhaps though they will steer the rest of the panel in the right direction.

I have already used your guidance from the 'summing up' link, as well as many other bits and pieces from the site - it has all been so helpful, I really would not have known how to begin if I hadn't stumbled across it.

[Etienne]

It might be a good thing then that they wrote to say they had to replace one member of the panel because one of the appellants knew them, so perhaps they are bringing some fresh blood in.

Or, instead of providing fresh blood, it might be that the replacement already belongs to the same narrow pool of panel members with the same mindset.

I'm guessing that - to play safe - they would need a pool of around 6 panel members in order to run their own appeals. They're bound to need 'reserves' from time to time. Moreover, if the EFA/ombudsman required a re-hearing, they would have to come up with a different panel (although they could 'rent' a panel from the LA or elsewhere).

I never really noticed any difference between lay and non-lay members in terms of independence. My main concern has always been that a panel appointed by the school, however lawful, however good, lacks the appearance of true independence. I've quoted elsewhere the comment from the Administrative Justice and Tribunals Council to the Secretary of State: "In the case of schools/academies that are their own admission authorities, it is unsatisfactory that Foundation and Voluntary Aided schools and academies run their own appeal panels. Full independence needs to be ensured, following the principle of natural justice that no-one should judge her/his own case."
http://www.elevenplusexams.co.uk/forum/ ... TC#p425733" onclick="window.open(this.href);return false;

do I say this right at the beginning before the school have presented their case, after the school have presented their case but before I have asked my questions of the school or after I have asked my questions but before I present my case?

I think the best time is most likely to be after questions to the AA but before you present your case. Wait for the chair to turn to you and invite you to begin your case.

However,

• • 1.12 The chair is responsible for the conduct of the hearing including introducing the parties and explaining the roles of the clerk and the panel, explaining how the hearing will be conducted, and ensuring that the parties have sufficient opportunity to state their case and ask questions.

(This doesn't always happen, perhaps because the word "must" isn't used, but it would clearly be 'good practice').
It's just possible that at the very beginning the chair might say something about the procedure to be followed - or even turn to you and ask if the process is clear - which would make it the appropriate moment to raise your points.

You really have prepared very thoroughly, and I don't believe you could have done more.

Good luck!

[everything crossed]

Thanks for the good wishes Etienne.

I suppose I should take heart from the fact that they have told me that two appeals have been allowed for each of the last two years, although it concerns me that the school have already decided to allocate 4 extra spaces over the PAN this year and change their PAN from next year to 124 because "we have coped with classes of 31 in recent years" (this was due to successful appeals). I just hope this doesn't put pressure on the panel to think that there really is no way the school could cope with any more. I am going to try to counter it by asking the school if, given the fact that there have been 2 successful appeals in the last 2 years, they were prepared for the possibility of further successful appeals when they decided on that figure and must therefore be prepared for the fact that they may have to take more than 124.

By the way, I emailed the Education Authority who basically said they couldn't answer because they are no longer responsible for the school's appeals and that they had forwarded my email to the school (not very helpful giving the school the heads up on one of my questions)