Advice regarding outcome of appeal

[chrisjim]

I wonder if it would be possible to get some advice regarding our appeal which was heard last week. We appealed for a place at our local GS which has capacity for 180 children in Y7. Our son was ranked 194 and was 1 mark below the qualifying score. Having been provided with a breakdown of the scoring across the 2 papers we could see that he had underperformed on the English Comprehension paper. He had a very secure pass on the locally set composition paper. Following 2 terms of COVID homeschooling we had made arrangements for him to be assessed by an Ed Psych, as we had become aware of some particular challenges he seemed to be experiencing. This was done in the Christmas break, due to difficulties finding someone with capacity to assess and taking on new clients post-COVID. This resulted in a diagnosis of SpLD/Dyslexia of a non verbal nature ( he has processing and working memory issues), but confirmed he is highly intelligent.
Our appeal was made on the basis that we expected him to have performed better on the day (academic evidence) and extenuating circumstances (undiagnosed Dyslexia).
Evidence presented to the panel was: letter from his current HT with confirmation of current levels (GD in maths, reading, SPaG, very secure EX - writing, recent assessment with scaled score of 117) and his very strong support of our appeal and our son's suitably for GS; Y5 report supporting this; Y2 report demonstrating accelerated progress; latest School performance data showing his primary is a high performing school; full Ed Psych report.
Appeals are outsourced to the LA and ours was heard by telephone last week, along with the other appeal for this school. Part 1 was heard - the school presented it's case, stating it was full and it would be prejudicial to accept and additional pupil (as expected). We moved to part 2 and I presented information to expand on the bullet points in the original appeal form (having used the very helpful resources here - thank you!), supplying a copy of my 'script' to the clerk for reference. We received a call later that day informing us our appeal was not successful. We received the letter confirming this yesterday, but we don't feel the response acknowledges the grounds for the appeal, and why the panel felt they were not sufficient.
The letter confirmed: the admission authority's case of prejudice had been proved and the proceedings moved to stage 2; in stage 2 the panel considered the decision of the Admission Authority and our representations (which was followed by a list). This is then followed by the statement: The Panel was very sympathetic to your case for XX. However, in accordance with the School Standards and Framework Act, 1998, they felt that the Admission Authority’s decision was not perverse and was one which a reasonable Admission Authority would make in the circumstances of the case. The panel considers that the process of appeal was transparent and fair. It therefore agreed that the decision
should be upheld.
Having not been through this scenario before, should we have expected a more detailed explanation of why they felt the evidence presented was insufficient to demonstrate the prejudice to our son? There seems to be no mention of this in their conclusion. The accompanying email said they would be happy to provide clarification of any points.
I'd be most grateful for any advice you can provide at this stage.

[Etienne]

So sorry to hear your news.

On the information provided you seem to have put forward a strong case, and there are indications that the panel thought so too (it's not often we see "The Panel was very sympathetic to your case for XX"), so I sense it may have been a close decision.

we don't feel the response acknowledges the grounds for the appeal

It should have done, and I note you say they did list your representations.
However, if what you mean is you feel they didn't give those representations enough weight, that's another matter - a matter of judgement, and I'm afraid there's no way of challenging the panel's judgement.

and why the panel felt they were not sufficient.

I doubt anyone would ever get a detailed explanation of what would be 'sufficient', but I think there should have been something in broad terms such as "The panel noted XX didn't quite reach GDS in one core subject, and felt that the academic evidence wasn't quite strong enough, even allowing for the extenuating circumstances, to justify overturning the admission authority's decision." (Not a conclusion I would necessarily have reached on the information available.)
You should certainly have been given some reason for the panel's decision that you could understand (even if you disagree).
Section 2.25 of the Appeals Code is mandatory:

• • 2.25 The panel must ensure that the decision is easily comprehensible so that the parties can understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors that were raised by the parties and considered by the panel. It must also give clear reasons for the panel’s decision, including how, and why, any issues of fact or law were decided by the panel during the hearing.

I find the wording of this part of the letter you received rather peculiar:

• • they felt that the Admission Authority’s decision was not perverse and was one which a reasonable Admission Authority would make in the circumstances of the case

This is the sort of language one might expect to be used in an infant class size appeal!
At your appeal the panel were not being asked to consider whether the original decision was one which a reasonable Admission Authority would make in the circumstances of the case.
At stage two of a grammar school appeal the only issues to be decided are (a) whether the panel deems child to be academically suitable, and (b) if so, whether or not the parent's reasons for wanting a place outweigh the prejudice to the school.

[chrisjim]

Thanks so much for your prompt response Etienne. Despite not being totally clear when I explained, you do seem to have got the thread of what I was trying to say. It's the fact that they haven't alluded in any way to the supporting evidence, or the basis on which they came to their collective decision to refuse the appeal.
The random conclusion regarding the Admission Authority's decision raised our concerns as, like you say, it almost appears to belong to another letter! I am suspicious that the LA see very few GS appeals in a year, and know that 7 years ago the school were running the appeals panel themselves - I'm not sure when the change took place.
Is it acceptable for me to go back to them quoting the Appeals Code s2.25 requesting further clarification of the decision making process? And highlighting section 3.13a? Or do you have any other advice on how we could proceed?

[Etienne]

I would be inclined to take up their offer of clarification if you feel that they have not addressed the issues set out in the mandatory provisions of the Appeals Code.

• • 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.
    

I would mention that, for a grammar school appeal, the Code does not ask the panel to consider at stage two whether the original decision was "one which a reasonable Admission Authority would make in the circumstances of the case".

Focus on procedure - be careful not to query the panel's judgement.

I would draw attention to paragraph 2.25 of the Code:

• • 2.25 The panel must ensure that the decision is easily comprehensible so that the parties can understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors that were raised by the parties and considered by the panel. It must also give clear reasons for the panel’s decision, including how, and why, any issues of fact or law were decided by the panel during the hearing.

I would also suggest asking for a copy of the clerk's notes. (They might try to resist, but you are likely to get them in the end.)

If you are still not satisfied that they have followed the correct procedure, you could ask the ombudsman (or ESFA if it's an academy) to look at the case:
https://www.elevenplusexams.co.uk/appeals/ombudsman" onclick="window.open(this.href);return false;

[chrisjim]

Thanks once again Etienne. Your experienced support if very much appreciated. I have spend much of the evening reading through the Govt guidance and information contained on this site. I have drafted a letter back to them, citing the relevant sections of the code, and asking for clarity around their decision making process. I can share a complete copy of their decision letter with you if there is a secure means to do this.
I will request a copy of the Clerk's notes, using a copy of the template I found on the site.
I expect we may find ourselves lodging a complaint with the ESFA - the school is an academy. Are there any grounds for making a complaint to the school, who have an agreement with the LA to act on their behalf in this respect? I note the Code states, on p5, item 6:
The admission authorities of foundation and voluntary aided schools and Academies may ask another body, e.g. the local authority, to carry out some or all of their admissions functions on their behalf. However, the admission authority remains responsible for ensuring
those functions are carried out properly.
I will keep you posted.

[Etienne]

I can share a complete copy of their decision letter with you if there is a secure means to do this.

Thanks - I'll bear that in mind.
The clerk's notes are likely to be more important as they are the official record of the hearing.

Are there any grounds for making a complaint to the school, who have an agreement with the LA to act on their behalf in this respect?

I don't think so - their agreement is likely to include getting the LA to deal with any complaints!

I note the Code states, on p5, item 6:
The admission authorities of foundation and voluntary aided schools and Academies may ask another body, e.g. the local authority, to carry out some or all of their admissions functions on their behalf. However, the admission authority remains responsible for ensuring
those functions are carried out properly.

Yes - it's a reminder to admission authorities that they are ultimately responsible.
The implication for you is that, if you complain to the ESFA, you must name the school as the body you are complaining against.
It's possible the ESFA form will ask you which body heard the appeal (I don't know what wording the current form uses), but in any event, if the complaint is accepted, I would expect the ESFA to write to the school, and the school to pass the complaint on to the LA!

[chrisjim]

I have written to the Clerk to request further details around the panels decision making process, as specified in section 2.25 and to highlight the unusual nature of their response, relating to decision not being perverse (quoted), in light of this being an appeal for GS under section 3.13. I will let you know once I receive a response.
I also submitted and SAR for the Clerk's notes.
As time is of the essence at this point, I have also submitted a complaint to the ESFA.The form ask for details of the the school and clerk, and states it will share the details of the complaint with both.