2020 Exam Appeals - The Different Types of Challenge

Ofqual’s Grades Guidance and its Student guide to appeals, malpractice & maladministration complaints (the “Student Guidance”) distinguishes between two types of challenge.

The Grades Guidance further states that “a student cannot appeal because they disagree with their school’s or college’s professional judgement of the grade the student would most likely have achieved if exams had taken place.” Consequently Ofqual expects a student not to ask a school to make an appeal if the school’s CAG processes are rational, and properly and consistently administered, although they can still make a claim of malpractice (see below), or bring a complaint within the school’s internal complaints procedure.

A) Appeals: deadline of 17 September 2020

Appeals can only be brought by a school on behalf of a student.

The Grades Guidance gives the following examples of the types of error that can be appealed.

1. The school or college made a mistake

The Head of Centre has evidence that the school or college made a mistake when submitting the centre assessment grade(s) to the exam board.

Examples of mistake given by Ofqual in the Grades Guidance are:

a) An exceptional clerical error

“an exceptional clerical error”: this is basic maladministration due to clerical error, not changing the school’s professional judgement.

b) A failure to take into account important information

“a failure to take into account important information about a student’s likely performance that should have been included and was taken into account for other students”: this would appear to involve inconsistency in approach between individual students rather than bias (see below); and

c) Use of an inappropriate method

The use of an inappropriate method for setting CAGs by the school: “A school or college cannot raise concerns about its CAGs on the basis that another institution took a different approach, that different teachers could have come to a different judgement, or because the national process of standardisation did not operate as expected. Instead, the school or college would need to provide evidence of the original approach that it took and show why this was not appropriate, given the published guidance. Exam boards would need to be satisfied that the approach taken by the school or college was inappropriate, not that a different judgement about a CAG could have been reached, to allow an appeal on the basis that the original judgement was flawed. In such cases, the exam board will take into account the nature of the school’s or college’s mistake and how it came about when deciding whether it should take any follow up action against the school or college…Given the care with which schools and colleges determined CAGs, we expect that it would be very unusual for them to identify such issues with CAGs. A school or college that took into account the distribution of centre assessment grades compared with grades achieved by the centre’s students in previous years will have acted within the guidance. Given the emphasis not on the calculation of a particular CAG but rather on a school’s approach, we are assuming this ground involves a school concluding that the overall approach it has taken to deciding on CAGs in a particular subject or subjects was in itself a fundamentally flawed response to Ofqual guidance. Because there is no direct right of appeal to an exam board by a student, Schools may be pressured to make this type of self-critical appeal, and some may wish to do so to try and assist students. However any appeals based on school error will be investigated by exam boards and may result in the school’s fundamental competency as a centre being questioned regarding its conduct of exams for that exam board in future. Consequently our advice is that Schools should be careful about agreeing to make appeals on this basis in cases which are not supported by strong evidence of a fundamentally flawed approach by the school to finalising CAGs (rather than it just being “inappropriate”). In practice a parent could only legally challenge a school’s refusal to make an appeal on this basis if the school’s CAG process was an irrational response to Ofqual’s published guidance (i.e. a process that no reasonable school would have adopted if addressing its mind correctly to that guidance). We appreciate that parents / students may be particularly demanding or aggressive in such circumstances and it is important not to unduly raise expectations regarding the prospects of an appeal: see ‘How to make the correct legal and practical response’ below.

2. The exam board introduced an error

The Head of Centre has evidence that the exam board introduced an error into the centre assessment grade data submitted to it or when it communicated a grade.

3. The wrong data was used

The exam board used the wrong data when statistically standardising some students’ results.

4. A claim of malpractice and/or maladministration: no time limit

Claims of this type can be brought direct by a student to an exam board.

The Grades Guidance states that “If a student thinks their grade might have been affected by wrongdoing or a lack of care taken by their school or college (malpractice or maladministration) they should first discuss this directly with their school or college and, if appropriate, raise a complaint through the school or college’s complaints policy. If a student feels their concerns have not been addressed, they could then consider raising their concerns about malpractice or maladministration with the exam board. A student who has evidence of bias or discrimination and who does not wish to raise this with their school or college should give the evidence to the relevant exam board directly. If malpractice is proved, the exam board will consider whether the student’s grade should be changed”.

Ofqual does not regard this form of challenge as an appeal but “an allegation (accusation) that malpractice or maladministration happened in relation to” a CAG. The Student Guide in practice focuses on bias and or discrimination as types of malpractice. There is no detail given in the guide on maladministration and our advice is that it is covered in practice by the appeal routes above.

Bias and discrimination are hard to prove legally.

To show bias, a student would need prove that their grade was prejudged by the School before it was duly considered, either as a result of actual bias or apparent bias. Actual bias is the decision-maker being proved to have a financial or personal interest in the decision. Apparent bias might be shown through collected evidence of prejudice, misconduct, irregularity, or discrimination against a student or group.

Discrimination is either direct or indirect discrimination under equality law towards a student in evaluation their CAG. This can only be claimed regarding specific protected characteristics, notably one or more of disability, religion, sex and race in this context.

Schools are advised to take legal advice early if they have any concerns about evidence that bias and/or discrimination might actually have taken place in relation to how CAGs were decided.

The Grades Guidance further states that “a student cannot appeal because they disagree with their school’s or college’s professional judgement of the grade the student would most likely have achieved if exams had taken place.” Consequently Ofqual expects a student not to ask a school to make an appeal if the school’s CAG processes are rational, and properly and consistently administered, although they can still make a claim of malpractice (see below), or bring a complaint within the school’s internal complaints procedure.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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