The week between A-level and GCSE results will always be a busy time in the education sector. However, to say that this year has been exceptional is probably an understatement.
By way of a recap, in order to adapt to the challenges imposed by the pandemic, in April 2020 the Office of Qualifications and Examinations Regulation (Ofqual) announced that schools would be asked to submit ‘Centre assessment grades’ (CAGs) for their students in place of examinations. These grades would be arrived at by the students’ teachers. Schools were also asked to submit rankings for each of their students within each grade for each subject. Teachers were not allowed to assign equal rankings to students.
The Ofqual standardisation process included consideration of “historic grade distribution” which took into account the results achieved by students at the same school over the past three years. This meant that a student could have their results awarded on the basis of some factors that did not relate to their own academic promise or effort.
On Thursday 13 August the results were released and it was reported that 40% of students received grades that were one, or even two grades lower than their CAG.
The condemnation that followed was swift and widespread. Students protested; schools complained of manifest unfairness; universities grappled with what to do.
Lawyers, along with the not-for-profit sector, also sprang into action with no fewer than three judicial reviews threatened. Judicial review is a legal mechanism through which interested parties can challenge a decision of a public body through the courts.
The potential challenges pointed to the Education Act 2011 which states that Ofqual’s objective is to regulate qualifications to “give a reliable indication of knowledge, skills and understanding” and to the Apprenticeships, Skills, Children and Learning Act 2009 to meet the qualifications standards objective and the public confidence objective to "promote public confidence in regulated qualifications".
The potential arguments were that the model was unlawful. There was an obligation to create a scheme that was procedurally fair and that had been breached. In addition, there was a systemic problem that gave rise to an unacceptable risk of procedural unfairness. The promise of autumn exams was unlikely to help students who had based their plans on their expected grades or who may have had months without school. For a large number of students, the model did not take account of relevant considerations such as the teacher predictions, whereas it did take irrelevant factors such as historic results into account. Further, the model was different to the one that was announced after Ofqual’s consultation and it was not in line with Ofqual’s own policies. The different weighting given to historical performance data in respect of cohorts of different sizes produced substantively irrational results and profiled students in a way that was unfair and outside their expectations.
On Saturday 15 August 2020, Ofqual published its expected guidance about how mock exams could be used in appeals but this was taken down from its website on the same day.
On Monday 17 August 2020, a mere four days since A-level results’ day, it was announced that CAGs would now be used to grade students’ A-level performance, unless students had been awarded a higher grade through the original process.
So is that the end of the story? It seems unlikely. The announcement regarding CAGs was swiftly accompanied by a second announcement that the recently imposed student numbers cap for higher education institutions would be scrapped. However, there are questions about whether all universities will have sufficient space for the students who have now met their original offers in the next academic year, particularly given the restrictions they have had to place on the use of their facilities in response to the pandemic. Schools will want to support their students through this uncertain time.
There are also likely to be students who are unhappy with their CAG even though these cannot be appealed. The (now historic) Ofqual guidance of earlier this month states that this is because “any appeal would have to be undertaken by someone better placed than your teachers to judge your likely grade if exams had taken place – in the unique circumstances of this summer, we do not believe there is such a person.” It also remains the case that decisions using “academic judgement” are considered to be non-justiciable.
Nevertheless, schools may find themselves on the receiving end of data subject access requests from students; questions about whether there has been an error in submitting their CAG; or even a complaint or claim. As with all consumer contracts, private school contracts will include statutory implied terms in relation to the service being performed with reasonable care and skill and a student may also try to found a challenge on the basis that a school has been negligent.
Although a student is going to have an uphill battle progressing such a claim if their school has acted reasonably and in accordance with sector guidance, institutions should treat these situations with care. Even an unfounded claim has the potential to cause significant disruption and even cost.