Appeal: retroactive extra time & close score in 11+ exam

[anotherdad]

Sadly our appeal failed on academic evidence.
The Panel took the view that there was not sufficient evidence to determine that if our DS had received extra time in the entrance test in September 2017 that this would have materially impacted on his test score. This statement directly contradicts the professional opinions of the Educational Psychologist, the Headteacher, the recommendations for access arrangements from Standards & Testing Agency and the test arrangements of the grammar school itself (which would have allowed extra time). The Panel did not explain in the decision letter how they reached the above conclusion and did not provide any evidence or argument in support of their view.
There were other irregularities which we have sent to the Appeals Box.
We welcome PM's especially if anyone is in a similar situation.

Sorry to hear that. If the letter states that the appeal failed on academic evidence, then the matter of the extra time was superfluous to the decision because it would indicate that the panel didn't see enough academic evidence to suggest suitability for the grammar school. Had they seen what they considered to be sufficient evidence, then they would probably look to reasons for underperformance in the test versus expectations. It seems that their reasoning is that the test result was a fair reflection of the academic evidence presented.

[Etienne]

There were other irregularities which we have sent to the Appeals Box.

I've only just seen this.
If there are any specific questions arising from the background information, could you please post them here so that we know for certain which issues you are content to have discussed on an open forum. Thanks.

[PlaceQuest]

What seems to be missing from this discussion is any proper consideration of what the law says in this type of case. I think that the most relevant legislation for this type of case is the School Admission Appeals Code 2012, the Equality Act 2010 and the School Admissions Code 2014.

The first question is whether there is a disability, this is answered by section 6 of the Equality Act. A disability by definition is long term. If a child qualifies for extra time in exams, I would suggest that means that it is a disability case and the Equality Act applies. What do other people think?

Under section 20 of the Equality Act, schools are required to make a reasonable adjustment where their admission arrangements produce a substantial disadvantage. Extra time is considered to be a reasonable adjustment. What happens when it is impossible to get extra time before the 11+ entrance exam, as in our case? The disadvantage still exists.

You might think that this can be sorted out by the appeal panel?

But appeals for grammar schools are governed by sections 3.13 and 3.14 of the School Admission Appeals Code 2012.

“3.13 An appeal panel may be asked to consider an appeal where the appellant believes that the child did not perform at their best on the day of the entrance test.”
This refers to a temporary disadvantage, not a long term one, such as a disability. A disabled child may perform at their best on the day of the entrance test and therefore section 3.13 (and all the requirements for other evidence of academic standards in 3.13(i)) doesn't apply.

3.14 “In either case the panel must not devise its own methods to assess suitability for a grammar school place unrelated to the evidence provided for the hearing.”
These are either a local review process or cases where the child did not perform at their best on the day of the entrance test- neither case applied to us.

It would seem that the focus should be on the entrance exam itself (which is after all what the school requires) and the duty of the school to make a reasonable adjustment under the Equality Act (which is what the law requires).
If the reasonable adjustment (of extra time) cannot be implemented before the exam, then it has to be implemented after the exam as an adjustment of the exam result to compensate for the 25% less time in the exam. Has anyone heard of this happening in 11+ exams?

[PlaceQuest]

Individual panel members are totally independent, and - so long as they consider all the evidence - they are free to decide what criteria to use (and they may well disagree among themselves!).

They also have to follow the law, please see my comment above.

The only thing I would add is that, if an appeal panel were challenged for having given priority to a headteacher’s letter of recommendation and SATs predictions, it could point to the fact that this is the only example of academic evidence given in the DfE Appeals Code.

I assume that you are referring to section 3.13 of the School Admission Appeals Code 2012 ?

Appeals for grammar schools
"3.13 An appeal panel may be asked to consider an appeal where the appellant believes
that the child did not perform at their best on the day of the entrance test. In such cases:
a) where a local review process has not been applied, the panel must only uphold
the appeal if it is satisfied:
i) that there is evidence to demonstrate that the child is of the required
academic standards, for example, 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; and
ii) where applicable, that the appellant’s arguments outweigh the admission
authority’s case that admission of additional children would cause prejudice.
b) where a local review process has been followed, the panel must only consider
whether each child’s review was carried out in a fair, consistent and objective
way and if there is no evidence that this has been done, the panel must follow
the process in paragraph 3.13(a) above."

In my reading of this section this only applies in situations where the child did not perform at their best on the day of the entrance test. In our case our DS did perform at his best on the day of the entrance test, it was just that he was disadvantaged by a disability. Don't you think that the panel should have simply considered whether he was entitled to a reasonable adjustment under section 20 of the Equality Act? Are they not bound to do so under section 3.20 of the School Admission Appeals Code, (which relates to disability)? If so, the question of alternative academic evidence must surely be irrelevant?

[PlaceQuest]

However, you need to look at the other evidence as that is the crucial focus...

You need academic evidence to show suitability for grammar school, not evidence to show ability in the things tested in an 11+ test. It's about showing that reading, writing and maths at school are all at a level that is suitable for grammar school because your extenuating circumstances will hopefully be accepted as the reason why the test score was lower than the academic evidence suggests it should have been.

..hopefully you realise now that it is the totality of academic evidence..

I am now questioning the relevance of this other academic evidence, because it relates to section 3.13 of the School Admission Appeals Code 2012, which does not apply in our case or in any case involving a disability.

[DC17C]

My concern with a situation like this would be how well a school which is unwilling to apply reasonable adjustments for 11+ would be at supporting my child through their secondary education. I only say this as a mum with a son with a similar profile. We went through a successful appeal for a grammar place some time ago..the school had very good sen support...Id wonder at the support at this school....

[Etienne]

They also have to follow the law, please see my comment above.

My remark

• • "Irrespective of whether you're right or wrong, you cannot assume what an appeal panel will think. Individual panel members are totally independent, and - so long as they consider all the evidence - they are free to decide what criteria to use (and they may well disagree among themselves!"

was specifically about the assessment of academic evidence, and was in reply to the point you had raised:

• • "Regarding non-qualification, I am still wondering why a head teacher’s letter of recommendation and SATs predictions is a better evidential substitute for the deficit of marks in the 11+ test than say another comparable test."

Don't you think that the panel should have simply considered whether he was entitled to a reasonable adjustment under section 20 of the Equality Act?

They must certainly have regard to the EqA.

The panel should have decided, based on the evidence available, whether the child was disabled.
If disabled, the key question would then be "Was there discrimination?"

The admission authority has a defence if it did not know, and could not reasonably have been expected to know, that the individual had the disability (s.15(2) EqA).

However, it does have an "anticipatory duty". In other words, it should have been proactive in asking parents whether there was a disability when an application was made for testing, and/or by making clear the procedure for requesting reasonable adjustments.

If the reasonable adjustment (of extra time) cannot be implemented before the exam, then it has to be implemented after the exam as an adjustment of the exam result to compensate for the 25% less time in the exam. Has anyone heard of this happening in 11+ exams?

No, I've never heard of it in relation to the 11+. Admission authorities are almost certainly going to say "You have a right of appeal".
(A judicial review is of course a possibility, but I'm not sure whether a court would give leave for judicial review if the parent had not first sought a remedy through the appeal process.)

If an appeal panel finds not just disability but also discrimination, it then has to decide, taking everything into consideration, whether the child would probably have qualified if reasonable adjustments had been put in place.

If it does not find discrimination (for example, because the disability was not diagnosed until after the test), it is still free to consider the issue under extenuating circumstances.

[PlaceQuest]

My concern with a situation like this would be how well a school which is unwilling to apply reasonable adjustments for 11+ would be at supporting my child through their secondary education. I only say this as a mum with a son with a similar profile.

Thanks for your reply. It is great that you managed to navigate through the minefield to a successful outcome. I don't think the issue is so much that the school in question won't be supportive of SEND - they have a legal duty to do so. I think this school and many other grammar schools have a problem dealing with SEND in the admissions and selection process and the question is whether that process is compliant with the Equality Act? Why should parents of SEND children have to go through an onerous appeals process most of the time? It should be simply a matter of the school making the reasonable adjustment (as is their duty under the law) and avoiding a time consuming appeal.

[PlaceQuest]

The panel should have decided, based on the evidence available, whether the child was disabled.

We presented the facts that a disability could be inferred in written submissions, we mentioned disability many times in the hearing. The panel and the school didn't pick up on it in the hearing and it was not mentioned in the decision letter. I assume that the panel had a duty to consider the question of disability?

[PlaceQuest]

If the reasonable adjustment (of extra time) cannot be implemented before the exam, then it has to be implemented after the exam as an adjustment of the exam result to compensate for the 25% less time in the exam. Has anyone heard of this happening in 11+ exams?

No, I've never heard of it in relation to the 11+. Admission authorities are almost certainly going to say "You have a right of appeal".
(A judicial review is of course a possibility, but I'm not sure whether a court would give leave for judicial review if the parent had not first sought a remedy through the appeal process.)

Where there is a failure to comply with a duty to make a reasonable adjustment, a disabled person can enforce that duty. It would appear that in admission matters in education that issue is governed by Schedule 17(13) of the Equality Act, therefore our right to enforce section 20 of the Equality Act is before an admissions appeal panel? This would imply that we can request a stand-alone hearing before an appeal panel on the question of compliance with a duty to make a reasonable adjustment?