11 Plus Exams Forum

Thanks for a copy of the decision letter. Although there's no mention of the Equality Act, they do refer to the Special Educational Needs and Disabilities Regulations 2014 which I think is sufficient, bearing in mind that the Appeals Code refers to equalities legislation:

• • 1.1. ..... The admission authority and appeal panel must act in accordance with this Code, the School Admissions (Appeal Arrangements) (England) Regulations 2012, the School Admissions Code, other law relating to admissions, and relevant human rights and equalities legislation, for example, the Equality Act 2010.

1. For there to be a disability within the meaning of the Equality Act, the condition needs to be "substantial" (which is defined as more than mild or moderate).
Since your daughter's condition is stated to be "mild", my own view would be that her condition is not a disability as defined by the Act.
The school, rightly or wrongly, might have taken a different view because I note they say that it is likely they would have made special arrangements if the issue had been brought to their attention. (Whether they would have done in practice is another matter. We shall never know.)

2. I do not think there has been discrimination because the school did not know, and could not reasonably have been expected to know, of your daughter's condition.

3. Although my view would be that you do not have a case under disability legislation, I see no reason why the panel could not consider her condition as an extenuating circumstance.

4. I note that "The Panel accepted the position of the school Governors that adjustments to the .... School entrance test could not be made retrospectively as there would be a ‘significant difficulty in translating the possible disadvantage into an exact number of marks in a way that is fair for both ..... and for the rest of the candidates’."

I recognise the difficulty when pupils are ranked, but the implication seems to be that no case such as yours can ever succeed on the basis that reasonable adjustments were not in place, or that there were extenuating circumstances sufficient to explain the shortfall in marks!

5. I was also puzzled by the curious statement "In addition, they felt that to override the Admissions Procedures in this case would breach section 2.7 of the School Admissions Code (2014) which states that “Admission Authorities must allocate on the basis of their determined admission arrangements only...”.

Are they suggesting that no appeal case can ever outweigh the prejudice to the school?
Para. 2.7 applies to Admission Authorities. It does not prevent Appeal Panels from upholding an appeal!


6. Para. 3.13 of the Appeals Code explains the process to be followed for grammar school appeals:

• • "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."
    

Did the panel conclude that your daughter is "of the required academic standard"?
They are not exactly clear on this point, but the implication is that they probably did because the letter states:

• • Whilst they were in no doubt that ..... is a well rounded student of high ability, the Panel agreed that to admit further children above the published admission number to ..... School would prejudice the provision of efficient education and resources at the school

In other words, they seem to be turning down the appeal because of 3.13a (ii) of the Code ("where applicable, that the appellant’s arguments outweigh the admission authority’s case that admission of additional children would cause prejudice") rather than 3.13a (i) (academic suitability).

Personally I thought your reasons for wanting a place were quite good, but it is not possible to challenge the panel's judgement so long as they took your reasons into account and weighed them up against the strength of the school's case. What matters is whether or not there were any procedural errors.

7. If you want to take this further you can try complaining to the ESFA, but I must warn you that the chances of getting a re-hearing are likely to be slim.
For further information see:
https://www.elevenplusexams.co.uk/appeals/ombudsman" onclick="window.open(this.href);return false;

I would advise you not to pursue the disability argument, because the school did not know, and could not reasonably have been expected to know, of your daughter's condition.
If you want to complain it would be best to focus on:

• • • point 4 above (the implication seems to be that no case such as yours can ever succeed on the basis that reasonable adjustments were not in place, or that there were extenuating circumstances sufficient to explain the shortfall in marks).
    
    • point 5 (Are they suggesting that no appeal case can ever outweigh the prejudice to the school?
    Para. 2.7 applies to Admission Authorities. It does not prevent Appeal Panels from upholding an appeal).
    
    • point 6 (Did they or did they not conclude that your daughter is "of the required academic standard"?).

The reason I think the chances of a successful complaint are slim is that, even if the ESFA accept there were some faults in the procedure followed, they may well think that you would have lost your appeal at the prejudice stage anyway (3.13a (ii)), and there does not appear to be any procedural error as far as the issue of prejudice is concerned.

Thanks for your help Etienne! She would have definitely have gotten the extra time as her sister who has the same SEN issue did. Anyway one more appeal outcome to go and I pray it’s a positive one with Townley.
Do you think that because she already has a Kent grammar place that we will not win? That worries me.

sobz70 wrote: Do you think that because she already has a Kent grammar place that we will not win? That worries me.

Difficult to say. I doubt that would given as a reason for rejecting the appeal in a decision letter, but it's impossible to know what panel members might be thinking privately.

The 2009 Appeals Code used to state:

• • The admission authority concerned may submit, as part of its evidence to the panel, that the child in question has been allocated a place at an alternative school. This may be of particular relevance where the question of distance between home and school is being discussed. Equally, it is open to the appellant to state any reasons why an alternative school would be less suitable.

The current Code is silent on the issue.

Dear Etienne,
We lost our appeal I have sent the letter to the appeals email. Please can you have a look? I am thinking the proper procedures have not been followed.

I think the wording of the letter could be improved in places, but overall it appears to meet the mandatory provisions of the Code.

Although they do not explicitly refer to the Equality Act, they do take into account daughter's mild condition, and point to the fact that no diagnosis was available at the time.

Sorry to say that it seems unlikely any complaint to the ESFA would lead to a re-hearing.

Thanks Etienne, hopefully we get a place through the reserve list as that school does take pupils one mark below the pass mark if they have places otherwise she will have to do the 12+ in future. Really appreciate your help on this matter and am really grateful.