Exams U-turn: Advice on managing challenges from parents and sixth form admissions

Complaints about CAGs

Our current intelligence is that Ofqual will continue with its policy not to accept student appeals regarding the academic judgement in CAGs issued by schools unless bias or maladministration can be proved (i.e. as per the existing Ofqual Guidance re the 2020 summer exams series). Consequently, students unhappy with their CAGs may try to allege bias and/or maladministration and will need to obtain relevant data from their school before attempting that appeal. We advise below on how to manage those data requests. We are also able to advise on complaints handling if an appeal is attempted: please contact Roger Inman.

The exceptional grading system for 2020 required teachers to review a wide range of existing evidence and generate new records, much of which a student may have a right of access to under the General Data Protection Regulation (GDPR). Requests for information relating to the 2020 exam system could also be made under the Freedom of Information Act 2000 (FOIA). In light of the Government’s U-turn, schools and colleges should be prepared for an influx of requests from students and other interested parties for information about CAGs, rankings and related information, such as the methodology behind the decisions to award a student a particular grade.

Individuals can request any and all of their personal data held through a Subject Access Request. The right of access belongs to the student, and schools and colleges should take steps to ensure that any parent making a SAR on their child’s behalf has authority to do so. Schools and colleges are under a duty to comply with a SAR “without undue delay” and usually within one month unless a legal exemption applies. A student does have a right of access to any information recorded by their school or college specifically for the purposes of determining exam results. The exam scripts exemption only applies to personal data contained within exam scripts, exam marks or other information processed by a controller for the purposes of determining exam results. This means that candidates do not have the right to obtain copies of their exam answer, including answers from mock exams or other assessments. Where a SAR is made for information relating to GCSE results prior to publication on Thursday 20 August, special time limits apply and the request should be dealt within 40 days of the announcement of the results. If a request is made on or after results day, the usual time limit of one month will apply.

Schools and colleges that are public authorities are also subject to Freedom of Information Act requests regarding CAGs. For example, an academy trust could receive a request under the FOIA for any recorded information held in relation to the methodology behind the 2020 grading and ranking system. Such requests could be made by anyone, including students, parents, journalists and members of the public. Schools must be mindful of this, and have a system in place to recognise a FOIA request and respond within 20 school days (i.e. days that pupils are in attendance) or 60 working days (whichever is shorter) of receipt of the request. Where a valid request is received, organisations must comply unless they are able to rely on an exemption under the FOIA. The key exemption is the avoidance of disclosing third party personal data. We can advise on the application of potential exceptions.

When responding to any request, schools and colleges should be particularly careful not to unlawfully disclose third party data (e.g. the personal data of another student). This issue is most likely to arise where students are asking for information about their rankings. Handling this aspect of a request can be particularly tricky and there are specific legal exemptions that apply, both under the FOIA and GDPR.

We have prepared a practical guide for schools on handling a SAR in the context of the Summer 2020 exam results. The pack contains detailed guidance, template responses, FAQs and key tips. If your school or college requires specific advice on data requests in relation to the 2020 exam system, please contact Joanna Lake.

Solution to over offering in sixth form admissions

Given many more students will now have the grades they need to secure a sixth form place, some schools will find themselves with many more students eligible for places than the school is able to accommodate. Internal students (i.e. those transferring to the sixth form from year 11) are guaranteed a place in a school’s sixth form provided they meet the minimum academic threshold. In addition, schools will be duty bound to honour offers of places to external students if the minimum grade requirement is achieved, subject to any minimum published admission number for external candidates in the school’s admission arrangements.

However, successful applicants are entitled to a place in the sixth form of the school, but not entitled to a place on any particular course of study. Course allocation is entirely within the discretion of the school and is a management decision dependant largely on staffing availability and numbers. So, how are schools to allocate places on individual courses where they are now oversubscribed? It is our view that it would be legitimate and practical to fill sixth form courses with internal candidates first. Once a course is ‘full’ the offer to any remaining student holding the offer of a place must still be honoured but the school is entitled to offer only the remaining available course options, and it will then up to the student whether to accept or reject that offer. For further advice on this topic please contact Laura Berman or Roger Inman.

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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