A-Level results: Students challenging the algorithm via judicial review

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A “statistical standardisation model” was implemented to determine students’ results. This model included the historic results of each school/college, the previous performance of the students and the expected national grade distribution for each subject. Teachers were tasked with providing Centre Assessed Grades (CAGs) for each student in each subject. Statistics show that almost 40% of the CAGs have been downgraded in England. In Wales, 42% of CAGs had been lowered.

Education Secretary Gavin Williamson announced on 11 August 2020 that students in England who did not wish to accept their results could instead rely on their mock exam results. However, this was contradicted in the appeal guidance of Ofqual, which was withdrawn shortly after it was published. Therefore, students were left with lower grades, and no guidance on how to rectify this, leading to more confusion and anxiety.

Qualifications Wales provided guidance which states that Welsh schools/colleges will be able to appeal on the grounds the calculated grades generated by the statistical standardisation model were incorrectly allocated or communicated, and there is evidence of internal assessment that has been judged by the school/college to be a higher grade than awarded by the “algorithm”. This has, at least for some in Wales, provided some clarity.

It has now been announced by Education Secretary Gavin Williamson and Ofqual chair Roger Taylor that all A-Level and GCSE results will revert to the CAGs provided by their teachers. Similarly, in Wales, Education Minister Kirsty Williams has announced that CAGs will be followed, pushing the “algorithm” to one side. In both England and Wales, students who received higher grades will retain them.

Those who are unhappy with the outcome may wish to challenge the introduction of the algorithm, and the withdrawal of Ofqual’s appeal guidance, by way of judicial review – the process by which a judge will review the lawfulness of an action made by a public body.

The Good Law Project is currently supporting six students in bringing an action of judicial review following the failings of Ofqual, by sending a formal letter of claim. In bringing this action, the students are looking to shine a light on the disproportionate disadvantage felt by those who attended “lower-performing schools”. According to the analysis of Ofqual, students from lower socio-economic backgrounds suffered, on average, a 10.4% downgrade from their CAGs. This is opposed to the 9.5% downgrade felt by students from a medium socio-economic background, and 8.3% downgrade of those from a high socio-economic background.

In addition, students could challenge the use of historical data, which somewhat disregards the hard work of the individual students throughout their time in education. Their results are influenced by previous students who, in years gone by, would have had no bearing on their final results.

This is not the first-time that last minute changes to grade calculation resulted in challenge. In 2013, judicial review action was brought against exam boards, AQA and Edexcel following their raising of grade boundaries for GCSE results. This resulted in some students not receiving the ‘C’ grade they were predicted. It was argued then by teaching unions, local authorities, and pupils that the “statistical fix” implemented to control how many students received a ‘C’ grade was unfair. But the exam boards refuted this and pleaded that the change in grade boundaries was decided in light of the quality of work. In dismissing the action, the High Court held that the exam boards did not unfairly raise the grade boundaries.

A-Level students who have seen their grades downgraded have called upon the UK and Welsh Government and Ofqual to propose a fairer system than the “statistical standardisation model” implemented. Their voices have, to some extent, been heard and some may be successful in obtaining fairer results. For those students in England still disappointed though, little clue has been given about the timeframe for and mechanism for appeal, which will undoubtedly negatively impact on university admissions for September 2020.

If you have been affected by the issues in this article and would like to seek advice, then don’t hesitate to get in touch with Trish D’Souza (t.dsouza@capitallaw.co.uk) who leads our dedicated Education team.