A level and GCSE Results: The ABC of Legal and Regulatory Challenges - Serle Court
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A level and GCSE Results: The ABC
of Legal and Regulatory Challenges
2020 has been a year that no-one
could have predicted. It is with
some irony that one of the areas
particularly affected – student
grades for A levels and GCSEs –
comes from the use of predictions
rather than sit-down exams as
usual.
On 17 August 2020 the exams
regulator Ofqual announced grades (CAGs) formed the
that for GCSEs, AS and A levels basis for evaluation of students
(and some others) students who would otherwise have sat
would be awarded either their examinations in Summer 2020
teacher submitted grades or the for their GCSEs, AS and A levels,
result calculated by algorithmic Extended Project Qualification did not reflect their individual
standardisation, whichever and Advanced Extension Awards circumstances.
is higher. This U-turn from (AEA) in maths. These were the
the original position to use grades the centre assessed a In order to address concerns of
standardised or calculated student would have been likely potential unfairness in having
grades, subject to limited rights to achieve had they sat their results determined by factors
of appeal may have addressed exams. However, these grades extrinsic to the student, the
some of the immediate concerns were subject to a process of government announced on 12
raised with the algorithmic standardisation which drew on August a so-called ‘triple lock’
approach, but it has left many multiple sources of evidence with whereby students could accept
students unhappy. previous years and the centre’s their calculated grade, appeal
historic performance used to to receive a valid mock result or
The expectation to honour any determine whether they were sit their exams in Autumn 2020.
places based on calculated more or less optimistic than those All outcomes were expected
grades has also presented expected by teachers. to hold the same value in the
universities with unprecedented eyes of universities, other
demands with implications for This process meant that some higher education institutions and
capacity management and students would receive different employers.
funding. grades from those predicated
by their teachers without regard A level results were released
This places both students and to their individual performance. on 13 August and faced a
institutions in a dilemma: both Whatever the merits of the huge backlash. For many the
will have to consider their options original approach, this system computer effectively said ‘no’ to
against potentially duplicative unless corrected would have left the teacher predictions causing
routes for legal and regulatory some students poorly served. them to miss the grade offer
challenge and each with their Opponents said this would have conditions from their first choice
different timing implications and disproportionate effects on university. The anomaly was
costs. students from disadvantaged expected to continue with GCSEs
backgrounds.For example, a results following a week later.
From assessed grades to high performing student who
algorithms and back again significantly outperformed the To compound the uncertainty
results of their school could see faced by students weighing up
Teacher or centre assessment their grade reduced based on the their options, exams regulator
grades (CAGs) formed the basis standardisation process which Ofqual revoked the initial appeals
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guidance for students and Appeals must be made by 17 use of algorithms in the first
schools. The withdrawal of the September 2020 for GCSE, AS place, not least under Article 22
guidance late on Saturday 15 and A level and only schools and of the General Data Protection
August came within eight hours colleges can appeal. Regulation which provides a
of its publication. It appears limited right for a data subject
that the initial guidance was not An appeal is available on limited including a student not to be
consistent with the education grounds such as where there subject to fully automated
secretary’s claims in the triple- has been an administrative decisions based on profiling.
lock. It also came as a surprise error with the CAG or rank order
to teachers by including a wider information which underpinned Comparatively less attention has
range of coursework evidence to the standardisation process. been focused on the position
support an appeal. It appears that A change to rank order would of universities. They are faced
the initial guidance suggested not automatically change a with the prospect of an excess
that only those students whose CAG. Further, a centre cannot of demand over supply where
CAGs were higher than their appeal the CAG that they candidates would be eligible for
calculated grades could appeal. determined was correct at the places based on their CAG or
Presumably, this would have time of submission based on their calculated grades and where
limited appeals to those 39% judgement of the results that the there is no legal cap on the
whose results were downgraded student would have achieved had places to be made available this
following Ofqual’s standardisation the exams gone ahead. year.
process.
Cases where a student considers Anecdotal evidence and
On 17 August Ofqual announced that any reasonable adjustments statements from education
changes to the awarding system were not taken into account in institutions presents a rather
and appeals process and their case or who believe they mixed picture. Before the U-turn
subsequently issued revised suffered from bias affecting on CAGs, some institutions
guidance. In broad summary: the CAG are directed to raise stated that they had applied
these issues directly with the flexibility in awarding places to
• AS and A level students receive CAG or the examining board as students who did not meet the
their CAG as their final results, if appropriate. original offer conditions – to find
it is higher than their calculated only days later that others now
grade. Entry to Autumn 2020 exams will met the criteria and for whom
be open to all GCSE, AS and A there was no space left until
• Where the calculated grade is level students registered in the 2021.
higher than the CAG, the higher summer 2020 series. For many
grade will stand as the final students seeking admission to It is encouraging to see that
result. university in September and some institutions have pledged
October 2020 this will be too to honour all places. Inevitably,
• Ofqual and the Department late, so the priority now will be some tough decisions will be
of Education are discussing to engage with those institutions faced. Places face capacity
the changes with UCAS and and their schools to try to achieve constraints and events have
university representatives to try the best outcome. undermined funding assumptions.
to support students as much as Added to this in the backdrop
possible. The position of Universities of COVID-19 is the fact that a
university education is a life
• GCSE students’ final results will Much attention has been experience beyond the course
be the higher of their CAG or the focused on the prospect of legal content and there are practical
calculated grade. challenges to government and constraints to its delivery in a
regulators against the unfolding safe environment. Remote
Regulatory appeal routes events. Some say that Ofqual learning has replicated some
has been put in a difficult of the features of its bricks and
There remain some limited routes position against ministerial mortar equivalent but this was
to appeal final grades, initially pronouncements which would never going to be a perfect
before the examining board have led to rampant grade substitute. This raises an issue
subject to a request for review inflation without some checks as to how universities can honour
through Ofqual’s Examination and balances. Others point to the all places consistent with student
Procedures Review Service. intellectual and legal flaws in the expectations for as close as
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realistic an approximation to a There is a delicate public- exhausted a claim for judicial
full learning and campus style private divide where a question review is out of time.
environment. might arise as to whether a
claim against an education Unanswered Questions
What then are the prospects for institution is properly made as
students to safeguard their first a private or public law claim. The writer has been overwhelmed
choices and what is the position In some instances such as a in recent days by inquiries from
of universities presented with dispute over procurement of students, schools and universities
individual cases which have paper clips it is straightforward who have seen grades fall from
different merits depending on the to see a private law claim in the levels predicated by teachers,
prioritisation criteria they adopt? contract. Increasingly, aggrieved in some cases dramatically,
students affected by decisions only to see their reinstatement
The legal relationship between of universities, schools and days later. Among the questions
students and universities is a colleges have sought to make raised from the perspectives of
complex one. The boundaries claims in contract, consumer students and institutions include:
between public and private law and tort. There has been
have not been conclusively a traditional reluctance on the • Do universities have to honour
determined. part of the court to interfere the places they have already
with matters that are treated as offered where the student has
Students are consumers whose within the realm of academic met the offer requirements based
rights can be enforced through discretion but recent authority on the CAG which is higher than
the courts. They also have suggests an expansion where calculated grades but where
access to the appeals process the claim properly relates to the those places have already been
before regulators including quality of service that the student offered to others?
Ofqual (typically, via schools) is entitled to expect. There
and the Office of the Independent might even be an employment • What will be the impact on
Adjudicator for Higher Education contract at issue where no issue international places, including
(OIA) which was set up to remedy of public law is involved. Where, students taking the International
some of the deficiencies in the however, and of most interest for Baccalaureate which are subject
historic system of regulation of present purposes the university to different funding requirements?
universities. or college is exercising a power
or discretion over admissions, • What is the position of home-
Universities and colleges are or analogous disciplinary educated students?
also subject to public law duties proceedings, it is relatively settled
and, in certain circumstances, that a claim could lie in judicial • What is the position of students
they are amenable to judicial review subject to considerations who have taken Scottish Highers
review where they are acting of an adequate alternative and how will this affect the places
unlawfully or abusing power. The remedy (see for example, R made available to students from
grounds for judicial review are (Griffiths) v Lewisham College England, Wales and Northern
limited to where the institution [2007] EWHC 809 (Admin) at Ireland?
has acted illegally, there has para 6).
been procedural irregularity or it • What is the position of students
has taken a decision that is so This presents students with a who accepted places through
unreasonable that no reasonable dilemma. Do they raise their clearing as a next best option
authority would have adopted concerns directly with the but who have later found out that
it (so-called ‘Wednesbury’ institution, a regulator or a court? they met their offer conditions
unreasonableness). Yet these are The problem is compounded from their first choice university
grounds that students affected by by the timing constraints of based on the CAG?
decisions which have significant regulatory appeals and the
ramifications for their life and requirement that a claim for • What can a student do if they
career choices may want to judicial review must be brought believe that they were affected
raise. It comes as no accident promptly and, in any event, within by bias or discrimination in
that students raising such claims three months of the relevant the awarding and admission
often intend to pursue a career in decision. While the regulatory process?
medicine or law where they are route may seem more attractive
making large investments in their and cost-effective there is a • What is the position of parents
education over a long period. concern that by the time it is in engaging with the processwww.serlecourt.co.uk COMPETITION SerleShare
including their rights to Disclaimer: This briefing is for
information? information purposes only. It
covers a wide range of issues on
• What are the opportunities to re- which the law and practice are
sit the 2019/2020 academic year? evolving and which are highly
specific to individual cases. It
The back-tracking from the does not constitute and should
algorithm-generated results and not be relied on as legal advice.
the creation of more options to
meet the grade that would secure If you are affected by any of the
university admission may cure issues above please contact
some of the initial injustice of Professor Suzanne Rab’s clerk at
non-individualised decisions. Yet swhitaker@serlecourt.co.uk
this state of affairs has still left
many students scrambling in the Professor Suzanne Rab is a
queue for places in 2020 with barrister at Serle Court Chambers
deferral to 2021 a second best specialising in regulatory and
option. All testify to the emotional public law.
distress and the actual and
potential impact on life choices. Suzanne handles the range of
Universities may not always be education law cases advising
in a position to keep places open students, academic staff,
while the appeals process runs its schools and governing bodies,
full course. universities, colleges, examining
bodies and local authorities.
Many of the principles set out She has expertise in
here are not unique to the complementary areas of law
circumstances of the pandemic including public law/judicial
but they have particular review, data protection, equality
significance in that context. law, professional discipline,
Given that 2020 was always human rights and EU/State aid.
going to be an anomaly, now
more than ever it is important to Her work includes
subject decisions on awarding representations in complaints
and admissions to robust scrutiny against school and examination
if there is to be confidence in procedures and results. She also
the education and qualifications advises on contractual disputes
system. raising negligence and damages
claims.
The upshot of all is this as that a
student weighing up their options
may have to decide quickly how
best to protect their interests. It
will be critical to establishing
credibility and also to preserve
the avenues for subsequent
challenge to engage with the
school and higher education
institution at the earliest
opportunity. Yet the reality of
the situation is that a student will
not prefer to start their university
career in an adversarial process.
This means that the process of Professor Suzanne Rab
engagement must be handled
Year of Call: 2013
sensitively and with an eye on the
ongoing and future relationship.You can also read
