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 Post subject: Appeal complaint?
PostPosted: Mon Aug 03, 2020 4:29 am 
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Hello - I'm considering making a complaint to the ESFA regarding the procedure followed at our son's recent 11plus appeal. I have posted details of this to the appeal box. Would someone be able to look at this and let me know if, in your experience, they think I have a legitimate reasons for complaint?

Many thanks in advance.


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 Post subject: Re: Appeal complaint?
PostPosted: Mon Aug 03, 2020 7:43 am 
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Location: london
Welcome Ada123!

It would be helpful if you could outline the basis of your complaint here, so that others might also benefit from the advice provided. See guidance point 7 here for the Appeals FAQ.

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 Post subject: Re: Appeal complaint?
PostPosted: Tue Aug 04, 2020 12:36 pm 
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Of course. Here you go...

Grounds for possible complaint:

- Two of the three reasons given in the decision letter do not correspond to our reasons for appealing and ignore character references for son and suitability to school/grammar education.

- The letter also refers to lack of academic evidence as reason for not overturning son’s test result (especially low maths' result which we put down to extenuating circumstances). Primary school did not do CATs so these were not available. Also, due to COVID, SATs did not take place so we were unable to provide such scores. However, we provided letters from 3 teachers (Y5, Maths Teacher and current class teacher) as well as letter from Head Teacher, which between them cite him working at GD in maths, writing and reading. The school also provided a summary of where he was working at in all these subjects: greater depth and with a reading age of 14+. His Y5 report also states him working at GD across all subjects. His maths teacher quoted his practice SAT paper results: started Y6 getting 20s/40 (this is after him being at GD in Y5 and we have again put low score down to extenuating circumstances and coincides with 11plus test); more recent scores were 35+/40 and he was outperforming some of his grammar-selected peers. Is this strong evidence in view of circumstances?

We have since seen a summary of the clerks notes and, in our mind, these present further concerns:


- they question our son working at GD in writing when this is referred to in two teacher's letters and the summary table provided by school clearly states working at GD in writing. Have they been thorough/fair in considering son's case?

- they state lack of evidence around academic ability. When asked re. sending in school work we were told this was scrutinised at HT appeal (October 2019) and so not required. However, we could have provided more UpToDate work as evidence of him working at GD. Is it unfair that we were prohibited from using more recent work as evidence?

Any advice would be much appreciated.

thank you!


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 Post subject: Re: Appeal complaint?
PostPosted: Tue Aug 04, 2020 2:11 pm 
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Location: london
Thanks for this. I’m sure one of our experts will be along soon but in the meantime could you say which area this is?

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 Post subject: Re: Appeal complaint?
PostPosted: Tue Aug 04, 2020 2:40 pm 
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Posts: 8380
Hello, Ada. Welcome from me too.

Very sorry to hear your news.

Nothing has come through to the appeals box, but many thanks for following up the suggestion about posting more information on the forum because we can now refer to the details of your case - something we cannot do if all the information is in the appeals box and therefore confidential.

I think I know your area from the email address you used when registering, so that bit can remain confidential.

Quote:
Two of the three reasons given in the decision letter do not correspond to our reasons for appealing ....
A poorly worded decision letter might technically be a breach of the Appeals Code, but what really matters is what the clerk's notes reveal.

Quote:
.... and ignore character references for son and suitability to school/grammar education.
It would be quite correct to give no weight to character references. There are only two criteria: academic ability, and reasons for wanting or needing a place at the school being appealed for. Nothing else.

Not sure about "grammar education". It sounds a bit general. Reasons should be targeted at the particular grammar school rather than a grammar school education.
In any event, the first criterion has to be met if the second one is to be considered.

Quote:
The letter also refers to lack of academic evidence as reason for not overturning son’s test result (especially low maths' result which we put down to extenuating circumstances). Primary school did not do CATs so these were not available. Also, due to COVID, SATs did not take place so we were unable to provide such scores. However, we provided letters from 3 teachers (Y5, Maths Teacher and current class teacher) as well as letter from Head Teacher, which between them cite him working at GD in maths, writing and reading. The school also provided a summary of where he was working at in all these subjects: greater depth and with a reading age of 14+. His Y5 report also states him working at GD across all subjects. His maths teacher quoted his practice SAT paper results: started Y6 getting 20s/40 (this is after him being at GD in Y5 and we have again put low score down to extenuating circumstances and coincides with 11plus test); more recent scores were 35+/40 and he was outperforming some of his grammar-selected peers. Is this strong evidence in view of circumstances? ...... they question our son working at GD in writing when this is referred to in two teacher's letters and the summary table provided by school clearly states working at GD in writing. Have they been thorough/fair in considering son's case?
The evidence sounds good to me, but the ESFA will only consider procedural errors, not a querying of the panel's judgement.
    • If significant evidence has not been noted anywhere in the clerk's notes, then that is likely to be a procedural error.
    • If you try to argue "Well, they may have noted the evidence but they couldn't have considered it properly," that is likely to be a challenge to the panel's judgement!
Some panels might possibly want to see greater depth consistently over a longer period of time. It seems harsh to me when some children make accelerated progress as they mature, but there is nothing to stop a panel taking this view.

Quote:
they state lack of evidence around academic ability.
Sadly, it will be up to the panel's judgement as to what constitutes sufficient evidence.

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Primary school did not do CATs so these were not available.
Most schools don't do CATs.
If the school had been able to include some CAT results, they might have helped your case - or weakened it.

Quote:
Also, due to COVID, SATs did not take place so we were unable to provide such scores.
The report from the school should have been clear (if not explicitly, then at least by implication) "on track to achieve ....."

Quote:
When asked re. sending in school work we were told this was scrutinised at HT appeal (October 2019) and so not required. However, we could have provided more UpToDate work as evidence of him working at GD. Is it unfair that we were prohibited from using more recent work as evidence?
I don't think so. It's not the role of the panel to assess school work (most of them aren't qualified to do so!). If the argument is "They could look at the comments," I'm not sure that "good" or "7/10" or a tick would necessarily tell them much about grammar school standard. Rather than the work itself, a panel would much rather have a letter from the school reporting on recent progress.

Sorry I can't be more encouraging. I hope what I've written above goes some way to explaining why most complaints don't succeed.

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 Post subject: Re: Appeal complaint?
PostPosted: Wed Aug 05, 2020 8:40 pm 
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Posts: 11
Thank you so much, Etienne, for your detailed reply - much appreciated.

We are also considering making the complaint on the grounds that the appeals board was not fairly or appropriately convened.

As they chose to use a written statement in lieu of the more usual face to face appeal this allowed us no right of reply and was therefore not a reasonable or equivalent alternative, or at least not as reasonable as alternative methods such as a video conference or even a telephone call. We know many other panels made far more effort in this direction.

Have you any thoughts on whether that might be a successful complaint?

Many thanks once again.

-


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 Post subject: Re: Appeal complaint?
PostPosted: Fri Aug 07, 2020 11:46 pm 
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Posts: 8380
Hi Ada

I can see that an improperly convened panel, such as one that included someone on the staff of the school, or one that failed to include both lay and non-lay members, would be a clear breach of correct procedure - but I think you're referring to the process rather than to the panel.

For this, we have to look at what the emergency regulations actually say:
Quote:
(4) The appeal panel can decide to hold the hearing remotely if they are satisfied that:

• the parties will be able to present their cases fully
• each participant has access to video or telephone facilities allowing them to engage in the hearing at all time
• the appeal hearing is capable of being heard fairly and transparently in this way

Where these conditions cannot be met, the temporary regulations allow an appeal panel to make their decision on the basis of written information submitted only.In order for the panel to make a decision which is fair and transparent, they must ensure that the parties are able to fully present their case by way of written submissions.

It looks to me as if it would only take one appellant - or elderly panel member - to say "I can't use the technology," and the panel could have been entitled to use written submissions only.

If this was indeed a lawful decision, I doubt you could then make a case that the first option would have been preferable.

You would have to focus on the 'paper only procedure', and whether it allowed the parties "to fully present their case", which is the requirement.

The Buckinghamshire procedure looks like a reasonable attempt to enable both parties to argue their case in writing. I don't know how it compares with the process you had to follow.
viewtopic.php?f=12&t=60637

Even so, it probably wouldn't be enough to point to a shortcoming in the procedure. I think you would need to show what significant point you were prevented from making, which led to an injustice.

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 Post subject: Re: Appeal complaint?
PostPosted: Fri Aug 14, 2020 8:52 am 
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Posts: 11
Hello - thank you for your detailed response. Sorry for my slow reply; I have been away.

You are right in thinking that I am questioning the process rather than the panel itself.

It looks like Buckinghamshire, whilst using the written format for their appeal, still managed to offer their appellants the opportunity to respond to any questions the panel had, as well as ask their own questions. This was something that we were not offered, preventing the panel from making a decision which is fair and transparent, as we were not able to fully present their case. On viewing the clerk's notes, we feel this affected the outcome of the appeal.

There were several questions raised in the notes that we were unable to answer or clarify due to the format of our appeal:

- In the notes there is a question mark around my son's working at GD in writing - this despite several references in the evidence supplied clearly stating him working at GD in this area. Would this be considered a procedural error?

- The notes refer to my son being borderline grammar/high (despite evidence from Y5 and Y6 pointing to him working at GD in all subjects and all teachers considering him grammar school material). If they believe him to be borderline would further discussion/questioning have been beneficial to offer clarification?

- When referring to our extenuating circumstances, the notes question why all papers were not equally affected. We believe they were. For example, the English score was lower than expected given teacher assessment in this area. However, there was no opportunity for us to respond to this query.

- The notes state that more data was required to support our extenuating circumstances. When we submitted out written appeal and evidence we stated that we were in the process of acquiring further evidence, though the situation with COVID was delaying this - no one responded to us on this point.

Finally, I am waiting to hear back from the clerk with regards to how the panel met to discuss each appeal/make their decision - eg. video/telephone conference? If they met like this, why could appellants not join the hearing? At no point were we asked if we had the facilities to engage in this way.

I would be grateful for your thoughts on any of the above points and if you think they constitute a breach of correct procedure.

Many thanks again for all your help,

Ada


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 Post subject: Re: Appeal complaint?
PostPosted: Sat Aug 15, 2020 7:34 pm 
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Joined: Mon Dec 12, 2005 5:26 pm
Posts: 8380
Ada123 wrote:
It looks like Buckinghamshire, whilst using the written format for their appeal, still managed to offer their appellants the opportunity to respond to any questions the panel had, as well as ask their own questions. This was something that we were not offered, preventing the panel from making a decision which is fair and transparent, as we were not able to fully present their case. On viewing the clerk's notes, we feel this affected the outcome of the appeal.
It could be worth trying this argument, as you go on to give specific examples.

Quote:
- In the notes there is a question mark around my son's working at GD in writing - this despite several references in the evidence supplied clearly stating him working at GD in this area. Would this be considered a procedural error?
It depends. If the panel considered the evidence (which is procedural), but came to a different conclusion (which is a matter of judgement), the ESFA could well take the view that it was a decision that the panel would have been entitled to make.
It doesn't help that some schools are over-optimistic when providing support for an appeal, and panels find it difficult to understand an unexplained jump from EXS in Y5 to GDS in Y6. I realise this doesn't apply in your case - it's just an example of why a panel might doubt the evidence. (It's also an example of how a question & answer session could have settled whatever doubts the panel may have had in your particular case!)

Quote:
- The notes refer to my son being borderline grammar/high (despite evidence from Y5 and Y6 pointing to him working at GD in all subjects and all teachers considering him grammar school material). If they believe him to be borderline would further discussion/questioning have been beneficial to offer clarification?
In my view, yes.

Quote:
- When referring to our extenuating circumstances, the notes question why all papers were not equally affected. We believe they were. For example, the English score was lower than expected given teacher assessment in this area. However, there was no opportunity for us to respond to this query.
Noted.

Quote:
- The notes state that more data was required to support our extenuating circumstances. When we submitted out written appeal and evidence we stated that we were in the process of acquiring further evidence, though the situation with COVID was delaying this - no one responded to us on this point.
You weren't to blame for the situation, but neither were the panel. They could only judge the case on the evidence available.
In theory, if significant new information comes to light after an appeal, which was not - and could not have been - available at the time, then there is the possibility of a re-hearing.
Unfortunately, the decision whether or not to grant a re-hearing in this situation is at the discretion of the admission authority.

Quote:
Finally, I am waiting to hear back from the clerk with regards to how the panel met to discuss each appeal/make their decision - eg. video/telephone conference? If they met like this, why could appellants not join the hearing? At no point were we asked if we had the facilities to engage in this way.
Once the decision was made to use written information only, it's not really possible to argue that you would have preferred some use of technology.
After the hearing, the panel may well have deliberated by means of a telephone or video conference, but their deliberations are in private, not part of the hearing.
Assuming they did use technology, though, it does raise the question: what evidence was there for not conducting all the hearings in the same way (which was the DfE's preferred format)? From what you say, it sounds as if the clerk didn't consult all the appellants to find out whether everyone could access telephone or video conferencing.
I think it rather depends on the number of appeals. If it was a huge number, as in Buckinghamshire, it would not be unreasonable for the clerk to argue that it was inevitable someone wouldn't be able to use the technology, or that some appellants were bound to need technical support which he/she would not have time to provide.
If it was a smallish number, then in my opinion it would have been reasonable to consult with appellants before deciding to use the DfE's fallback option (a written procedure).


I assume you've seen our advice on making a complaint, which is here:
https://www.elevenplusexams.co.uk/appeals/ombudsman

You probably have enough to make it worth seeing what the ESFA think - but unfortunately I do not find them as receptive to reasoned argument or as thorough as the ombudsman (whose investigators used to handle all school appeals).
Best to keep expectations low!

Do let me know if I can be of any further help.

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 Post subject: Re: Appeal complaint?
PostPosted: Sun Aug 16, 2020 6:06 pm 
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Joined: Mon Jul 13, 2020 9:17 am
Posts: 11
Thank you, Etienne, for being so helpful once again.

We will get our complaint written up, as we have nothing to lose.

We heard back from the clerk regarding how panel members met - in person in the school canteen, so no technology used - not sure if that effects our argument one way or another? I do know a London school which held it’s appeals face-to-face at the same time that our hearing would have taken place.

He also offered me this information: You may be interested in the result of a similar complaint made over an appeal at another grammar school in the area.
The ESFA noted the complaint as – ‘Not having the opportunity to discuss her son’s case during the hearing – via a
phone or video call – it was impossible to elaborate on points made’.
The Clerk and Headteacher in their responses both made the points we outlined at the school we appealed to regarding the fairness of
every appellant having equal access to, and understanding of, relevant technology in order for the whole appeals
process to be fair.
The ESFA found ‘NO MALADMINISTRATION as parents were notified of the proposed appeals process for 2020/21 and
ample time was given for additional information to be submitted to the appeal panel’. Not encouraging, but I still want to complain.

Also, a bit of a strange question but do you know how long complaints are? Looking at the form they allow for 10,000 words, which seems a lot to me. Presumably they are not usually this long?!

Thanks again.


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