Late Grammar School offer: over the moon but stressed/flummoxed

[PermaShattered]

What a 3 days we've had - any insightful comments welcome. In short:

1. Our daughter was offered 3rd choice (her 11+ score was about 30 down on passmark);
2. 3rd school is outstanding but we appealed to 2nd choice school as was our preference;
3. Last Friday took calls from our local Ed admissions authority saying why appealed when have offer from grammar school?
4. Said we hadn't. She made further calls to other relevant admissions authority and came back and told us we definitely have an offer and it would be in post next day (Saturday just gone);
5. It duly arrived, and we posted our acceptance same day (they should have got it today) - verbal acceptance of place given by phone on Friday;
6. On Friday the Authority also withdrew both our place at 3rd choice school and our appeal to 2nd choice school;
7. Today i take a call from a friend whose daughter got substantially higher score than my DD - and she is 188 on waiting list;
8. I call our admissions auth to check they received our acceptance (they said still in posttray but will be dealt with this afternoon);
9. I query whether there could possibly an error and i'm told categorically 'no'. And if there was, we have a written offer, accepted it and they can't take it off our daughter;

10. Finally, my other DS is that grammar school.

I'm perplexed. What could be a possible explanation?

I don't think Perma gets past stage 1 on any measure, sorry, and I think you're all hanging on the coat tails of irrelevant cases. I can see why the experts here are still so adamant, since they egged Perma on hugely and assured her that there was no question whatsoever that the appeal could fail.

There is a clear difference between non selectives and selectives on this subject of reasonable expectation now that marks are disclosed. And when the mark is way, way, way below the cut off then it's completely unreasonable to expect a place. It's far more reasonable to expect a cock up by incompetent bunglers. It would be slightly more reasonable to expect a place had the school been offered on March 1st, but it wasn't. In the situation Perma found herself in it really would only be reasonable to expect a place if she was told clearly and in unjoined up writing that there had been a remark, since no kid 30 marks off would suddenly get a place without a supervening event.

Of course the test is objective not subjective but the reality is actually that Perma did not have a reasonable expectation of a place because she's switched on and worldly but she was egged on by you lot to such a degree that she was sufficiently bolstered that her wish for a place became an expectation. Still not reasonable though.

That reasoning correlates with reality and is why I distinguish between selectives and non selectives. It also is a sensible synthesis with the fact that stage two considerations come into play, with the academic factors re-inforcing the refusal of a place.

mental commitment made to a school once the offer is made
Op didn't make any such commitment to the school she was actually offered originally, remember, her first instinct was to appeal for her second choice. Yet she had that school on her list of preferences; one would assume it was actually acceptable to her (given it's outstanding status and all).
Why would supposed mental commitment be a factor at appeal, any more than the assumption of financial loss because you're bound to rush out and buy the uniform on the day you received the acceptance letter?
Sounds like scraping the bottom of the barrel to me.

And that is the right result, morally.

Habba she may not have been convinced but what was she to do in the face of repeated assurances? Far from 'waiting for the mistake to be discovered' she took the initiative. Once she had found that another girl with a better mark was higher on the waiting list, she asked again, and still they said yes. At what point do you decide that yes really means no?

I suppose the only thing she could have done was at the stage of the offer being withdrawn was to start to pursue the other appeal, but even there they seem to have messed her around over the dates and not given sufficient notice of the appeal hearing.

We didn't assure her an appeal couldn't fail, Yellowtip. We assured her an appeal shouldn't fail - which is still the case. It should not have failed and the appeal panel failed her. The EFA should correct that.

I have read all this thread from top to bottom, and just wanted to say that Perma has done brilliantly in holding it together over the last stressful month or so.

For those here who are legal or admissions experts though. If Perma's DD has a legal leg to stand on with the admin error, wouldn't also the 100+ or so children (apologies I don't recall the exact figure) above her on the list who didn't get a place also have a legal leg with the fact their DC scored higher?

How would the higher scoring (but non place winning) students be dealt with fairly (and legally?) If there's an extra place at the grammar school wouldn't it go to the no.1 on the waiting list, morally as well as legally? If Perma's DD has a legal right based on the admin error, then surely so does the current no.1 on the waiting list based on the exam results which is the widely accepted terms of admission (rather than an admin error)? Perma's DD was wrongly awarded a place, (which had nothing to do with her) but, doesn't upholding that wrong create further wrongs to other scores of children?

The focus has been on the legal rights of admission for admin errors with the 3 day case precedent etc, but what of the legal rights of those who scored higher on the test, can they rightfully (legally) just be overlooked/ignored/forgotten? (This is a genuine query BTW, apologies if it has been asked/addressed before). It's a point that has troubled me from the start although I have always had full sympathies for Perma. I hope her DD is happy wherever she goes and with Perma for a mum supporting her I think she'll do fantastically. I just fear for any future appeal because (this is to the legal experts here) how would a place for Perma's DD be upheld over the other higher-performing applicants and how can an admin error holds more weight (legally or reasonably) for a place, than a student (in fact many of them) who got a higher score in the entrance exam?

lougle what the EFA should do, but may not, is to confirm the AP. Because that's perfectly arguable legally, accords with common sense and produces the right result. That includes the right result for Perma since her DD was nowhere near to being entitled to a place on the basis of the test and it includes the right result for all parents with DC scoring better than Perma's DD, particularly those whose much more legitimate appeals might have been prejudiced had the decision gone the other way.

Rain - in situations like this the school creates an extra place just to accommodate the appeals child. Since it has no impact on the DC at No 1 on the waiting list, that parent has no grounds to appeal.

LaVolcan - people keep arguing that everything else is a distraction and that Perma had a reasonable expectation of a place and that is all to it.

I pointed out that a reasonable person wouldn't have expected a place. The comeback to that seems to be to go back to arguing about everything else which was previously an distraction from the central issue.

Habba but if it's physically possible for a place can be created, why doesn't the no1 also have a right to it? How can it not impact the no1 if they miss out on a grammar school place that should one come up would normally be theirs, when someone lower down the list gets in on the basis of an admin error instead of exam performance which is the accepted route of place awarding. Does the no1 (or no2 or no 3 etc children really not have a moral or legal entitlement to any new place created also?

(please note this is no kind of indirect go at Perma BTW, I am extremely sympathetic to Perma, she's done nothing wrong, and I would have walked the same path if I was in her shoes, but looking at the wider picture here).

I pointed out that a reasonable person wouldn't have expected a place.

In the York case, from my reading of it, it seemed a reasonable person wouldn't have expected the five additional people to be offered places either, being outside the LA and with an offer from someone who had no authority to make it. From what I recall, the LA tried to withdraw the places immediately but didn't fully follow the correct procedure. The LGO decided that this was enough to allow the places to stand. I don't think I would have done, but it wasn't me making the judgement.

Thanks tiggytape.

If that's a legal fact then that's what has to be accepted.

I don't think it's logical though, or reasonable, or morally right.

If I was Perma I would have followed the same path as her (no choice really, what was she meant to do, turn down a grammar school place willy-nilly on the basis it couldn't possibly be for her DD, even though everyone in authority confirmed it was? I don't think so... and neither would 99% of other parents here either I suspect)

However, equally, if I was the mum of the current no1 on the list then I would be hopping mad about this. Just for the fact everyone up the list probably doesn't know right now doesn't mean they never will find out. I would not think the law was being fair to creat a place that had gone to someone 188 or whatever on the list.

Why and how does admin error trump exam performance?
Does that not just pander to errors made in an adult/beaurocratic world (admin error, local authorities etc) instead of focussing on what's right or wrong at the level it really should... the rights of a child who would rightfully be entitled to any new creation of a place if it weren't for the adult mistake?

That no1 waiting list child would be losing more than Perma's DD even if they didn't know it (sorry Perma, I want to make it more in general because mentioning your name seems like I am having a go at you personally which I'm not, but I tried to write out "a child who was awarded a place by admin error but lost on appeal that subseqently appeals and wins", and it came out just a little bit long winded )

But legal fact is legal fact and if what Tiggytape says is true then that's the law and legally correct.

Crossed posts, tiggytape!

OP,

I'm just dropping in again to tell you how sorry I am to read that you were unsuccessful at the first appeal. I'm delighted to read that you're pursuing it further. Best wishes for your little girl.

Lougle and prh clearly have expertise in this area, and it's great that they've been able to help you to mugg up on the principles that should be applied. Hopefully they will be applied at the next stage, as it seems clear that they weren't at the appeal that's just taken place.

I'm a laywer too, as it happens, and therefore sadly I know (as I'm sure you do too) that tribunals do not always apply the law correctly or fairly. Hopefully there'll be a better chance of a fair hearing, applying the correct principles, at the next stage.

Very best wishes to you.

HabbaDabba keeps saying that Perma didn't have a reasonable expectation of a place. However, if you go back to the beginning of the thread, you will see that, after having been assured four times that her daughter did have a place, and after a week had elapsed, she thought that her daughter was genuinely entitled to place, possibly as a result of the marking having been checked. That's reasonable expectation.

YellowTip likewise keeps stating that the well-established law about withdrawing a mistaken offer doesn't apply to selective schools, and keeps asking people for precedent to the contrary despite being unable to cite any precedent herself. I think there are a number of responses to this:

1. The Admissions Code sets out a number of instances where it doesn't apply to selective schools. Therefore, it really is absolutely unarguable that the principle is that the entire code applies to selective schools except in those instances where it expressly says that it does not. It follows that the rules about withdrawing offers apply to selective schools.

1. Whilst there are no direct precedents - which is a pretty rare phenomenon in the law anyway - the Bishop Vesey School case establishes very clearly that the admission code applies to grammar schools in exactly the same way as it does to others - www.lgo.org.uk/news/2011/sep/bishop-vesey-grammar-school-criticised-admission-appeals/. Note, in particular, the statement "He is entitled to his opinion that the Code is too onerous for grammar schools but the School is not entitled to ignore its provisions."

1. There are decisions throughout the law reports and the LGO records demonstrating over and over again that selective schools are fully subject to the law and the codes of practice (including other codes such as SEN and exclusions) unless there is an express exception set out in the relevant statute or code. You simply cannot say that the LGO or court would go out on a limb in this case and depart from such well-established law just because it's allegedly "common sense".

Finally, to counter other points made: this is my first contribution to this debate, so I am not one of those who told Perma she should appeal and I don't have to justify anything. And the law on admission appeals is part of my day job.

Rain - I don't think anyone is suggesting that Perma should have declined the GS place because she suspected that it was made in error. What Yellowtip said somewhere upthread.was that Perma took a punt and it didn't work out and that it was time to move on.

Expecting your DD to jump pass 300 kids on the list is not a 'reasonable expectation'.

Habba - I'm not saying that anyone has suggested Perma should have declined the offer because she suspected it was made in error. What I am saying is, faced with somebody saying to her, in short: "You have a GS place, here it is verbally, here it is in writing, here you are checking with us and we're still saying the offer stands and is genuine" - she almost doesn't have the room or the facility to decline it, plus it all happened so quickly. That's why IMO Perma has done nothing wrong, not even "taking a punt" as such, because she did check and was reassured that the place was hers. As she made didn't seek out a place, the place was offered, plus she made effort to clarify the offer, several times, I can't equalise that with taking a punt which... makes it feel like she was doing something underhand when she hasn't done anything underhand. She's been all above board. I'm not sure what else she could have done than check and accept. What else could she have done, Habba? (I don't ask this confrontationally, I am genuinely stuck to see what else she could have done under the circumstances. I just don't know what else she could or should have done).

All I do have a bit of gripe with is though (and this is nothing to do with Perma) that the law appears, according to knowledgable posters here, to be on the side of the administrative error in terms of place offering. If there's any additional place to be had, freshly created or not, then it should go to the first person on the waiting list because they have won it on the same basis that everyone else who has won a place there has been judged by - that of the 11+ entrance exam.

Two wrongs don't make a right. Yes there was an admin error but there are other students, who have more right, 11+ marks speaking, to be at the GS than a student miles down the list who was awarded a place purely due to administrative error. It's not fair on the no1 or anyone else above on the list. However it seems to be the law.

However all this is no reflection on Perma. Perma is simply caught in the middle though no fault of her own.

I'm not citing a precedent nenny because I don't believe one exists, which is also why I've pressed the experts for one and so far they haven't delivered. If there was a precedent in case law which matched these facts, I'd assume it to apply, obviously .

Also nenny you'll note that in the Bishop Vesey case fresh appeals were only ordered for appellants who had attained a certain level of mark, even though all appellants had been the victim of maladministration? That may well be relevant in this case, on further appeal.

I think it's pretty much wall to wall lawyer city round here :)

Wigs at dawn!