2020 Exam Appeals - How to make the correct legal and practical response

It is vitally important for schools to have a clear procedure in place to handle queries regarding grades in a streamlined way, which enables them to be dealt with as quickly as possible, bearing in mind the overall appeal deadline, the remaining window for university admission this year, and deadlines for entry to autumn series examinations.

Schools are advised to have a CAG review process for responding to challenges which either uses the school’s published complaints procedure or can substitute for the first informal and, if necessary, the second formal stage of that complaints procedure. If the challenge is not resolved by the end of the CAG review process, the parent should be offered the remainder of the complaints process (usually a panel hearing).

Given the short remaining time ahead of the appeal deadline, the CAG review process should consider all the available grounds of appeal. Consequently, each school needs to formulate a consistent account of whether the overall methodology it used to calculate CAGs was inappropriate in light of the Ofqual Guidance, in particular pages 5-7. Particular attention should be taken to how reasonable adjustment/access arrangements for disabled pupils were factored into CAGs, and how a school calculated the CAGs for pupils who were suffering from traumatic or difficult personal circumstances. It may also be helpful to use this guidance to show that schools were not obliged, and indeed were advised to be cautious, in relation to work submitted after 20 March 2020. Our advice is that a school is entitled to take a robust but objective view of its competence in choosing and applying a methodology, especially if it followed the factors set out in the Ofqual Guidance systematically. However, if a school concludes that its methodology was flawed, it should consider making an appeal on behalf of the relevant students if that would improve their awarded grades, or it could face a negligence claim later on.

Claims of malpractice should be dealt with via the School’s complaints process if possible, because referral of such claims direct to the exam board are discouraged by Ofqual and also potentially disadvantageous to the School because it will not have had a chance to carry out a full factual investigation and discuss it with the complainant before triggering an exam board investigation. In our experience those investigations can be unpredictable in their methodology and outcome, and can have wider consequences for the school as an exam centre, so schools are advised to use the complaints process actively to try to resolve such claims before they need to go to an exam board. Complaints of this type are often strongly felt, but also often rely on limited or no actual evidence of potential bias or discrimination, so schools may need to take legal advice about the actual merits of such claims and how to handle them.

As would always be the case, students would have the potential right to bring a claim for discrimination or negligence (and for independent schools, parents can bring a claim for breach of contract), if they were able to establish the elements of such claims. However, the above appeal and malpractice procedures should provide a sufficient method for finalising a grade, and is indeed the only way to get an exam board to change a grade (such a change cannot be ordered by a Court or Tribunal). Students who are still unhappy with their eventual grade may try to sue the School regarding the CAG, as may students who have lost a certain university place or had their university place deferred. These claims will be very difficult for students to prove in practice given their legal requirements of proof of financial loss to the student having been caused by a breach of duty of the School (and/or breach of contract in independent schools) over CAGs.

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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