Our ref:l/lt/alevels/let1

Office of Qualifications and Examination Regulation

By e mail only; public.enquiries@ofqual.gov.uk

17 August 2020

Pre-action protocol for judicial review

Dear Sirs,

Proposed Defendant

The Office of Qualifications and Examinations Regulation

Earlsdon Park

Coventry

CV1 3BH

Proposed Claimant

Greater Manchester Combined Authority

Broadhurst House

56 Oxford Street

Manchester M16EU

The matter being challenged

The decisions of Ofqual in both the formulation of the standardization model for the award of A level grades and the application of that model which resulted in the A level grades determined by Ofqual and announced by the Examination Boards on 13 August 2020.

The issue

In Summary:

In outline, the method adopted by Ofqual to determine the A level grades awarded to candidates this: fails to give effect to Ofqual’s statutory objectives in the Apprenticeship, Skills, Children and Learning Act 2009 (“the 2009 Act”); fails to have regard or sufficient regard to the Secretary of State’s Direction to Ofqual dated 31 March 2020; discriminates unlawfully on the grounds of race and/or gender and disability in breach of s. 29 of the Equality Act 2010 (“the 2010 Act”); and has produced outcomes which discriminate unfairly against candidates from larger Centres and who were part of a large cohort in a particular subject (who are disproportionately from groups suffering socio-economic disadvantage).

Relevant background:

The background to this matter is well-known to both Ofqual and the Secretary of State and is therefore only set in summary below.

  • On 18 March 2020, the Secretary of State announced that the series of public examinations (including A-levels) would not take place in 2020 because of the Coronavirus (COVID-19) pandemic.

  • On 31 March 2020, the Secretary of State issued a Direction to Ofqual under the s. 129(6) of the 2009 Act (“the Direction”) which included the following (emphasis added):

I understand that the decision to cancel, and not reschedule, this year's exam series will give rise to concern that this year's GCSE, AS and A level students will be disadvantaged in comparison to previous and future years. Therefore, despite the cancellation of exams, it is Government policy that this year's cohort of GCSE, AS and A level students be issued a set of results this summer in order to allow them to progress to further study or employment.

As such, it is Government policy that these students should be issued with calculated results based on their exam centres’ judgements of their ability in the relevant subjects, supplemented by a range of other evidence. A number of students will already have completed non-exam assessments in some subjects and, where that evidence usually counts towards a grade, it should be taken into account in generating centres’ judgements.

In order to mitigate the risk to standards as far as possible, the approach should be standardised across centres. Ofqual should also mandate the method of calculating final grades based on the evidence provided for each student. Ofqual should ensure, as far as is possible, that qualification standards are maintained and the distribution of grades follows a similar profile to that in previous years.

It is important that students should have access to a right of appeal if they believe the process was not followed correctly in their case. Ofqual should therefore develop such an appeal process, focused on whether the process used the right data and was correctly applied, rather than seeking to overturn teachers’ professional judgement on individual students’ ability.

  • On 3 April 2020, Ofqual announced that schools and colleges would be required to provide a Centre Assessment Grade (“CAG”) for each candidate based on a range of evidence in possession of the school or college relating to work done in class, previous examination results and other assessments. Ofqual also required that schools and colleges should rank their students in order of merit in each subject. Ofqual further required that schools and colleges should provide statistical standardization of the accuracy of previous judgments in that examinations centre.

  • On 15 April 2020, Ofqual began a consultation exercise on how the calculated results required by the Secretary of State’s Direction were to be developed.

  • On 22 May 2020, Ofqual published the outcome of its consultation (“Our decisions following consultation on the exceptional arrangements for awarding calculated grades in GCSEs, AS and A levels this summer; and proposals for an autumn exam series”) which included the following:

To make sure grades are as fair as possible, exam boards will standardise centre assessment grades using a statistical model which will include the expected national outcomes for this year’s students, the prior attainment of students at each school and college (at cohort, not individual level), and previous results of the school or college.

We set out in our consultation a number of proposals about the standardisation model. In light of the feedback we received, we have decided:

*that the standardisation process will place more weight on a centre’s historical performance in a subject than the submitted centre assessment grades where that will result in students getting the grades that they would most likely have achieved had they been able to complete their assessments in summer 2020

*that because of the risk of unfairness, the model will not seek to reflect any trends in improvement or deterioration in a centre’s outcomes in a subject over previous years (a centre’s trajectory)

  • Ofqual made an exception to placing more weight on historical performance than the CAGs for small examination centres with low numbers of candidates.

  • On 11 August 2020, Ofqual published “Summer 2020 grades for GCSE, AS and A level, Extended Project Qualification and Advanced Extension Award in maths” which stated:

The standardization model will draw on the following sources of evidence: historical outcomes for each centre; the prior attainment (based on Key Stage 2 or GCSE data) of this year’s students and those in previous years within each centre; and the expected national grade distribution for the subject given the prior attainment of the national entry. For AS/A levels, the standardization process will consider historical data from 2017, 2018 and 2019 …

  • On 11 June 2020 (and reproduced on 14 August 2020), Ofqual published “Extraordinary regulatory framework: General Qualifications, COVID-19 Conditions and Requirements” (the Framework”) which provided (at GQCov 5.1):

In respect of each result that it issues under Condition GQCov3.1, an awarding organisation must establish, maintain and comply with an appeals process which provides only for an appeal to the awarding organisation on the basis –

(a) that the awarding organisation did not apply procedures consistently or that procedures were not followed properly and fairly,

(b) that the awarding organisation used the wrong data in applying the process set out under Condition GQCov3.2(a)(i), and

(c) that a result generated by applying the process set out under Condition GQCov3.2(a)(i) was incorrectly issued by the awarding organisation in respect of one or more Learners.

  • On 15 August 2020, Ofqual published further guidance on the Framework which introduced a limited further right of appeal in very exceptional circumstances such as major structural change at an examination centre and for candidates whose grade was lower than that achieved in their mock A levels. The guidance in relation to mock A level grades was withdrawn by Ofqual on 15 August 2020.

  • On 13 August 2020, A level results were released. On that day, Ofqual published “Awarding GCSE, AS, A level, advanced extension awards and extended project qualifications in summer 2020: interim report” which stated that 3.5% of A level and 8.2% of AS level grades were downgraded by two or more grades and around 40% of candidates received A level grades which were one or two grades lower than their CAGs.

Proposed Grounds of Challenge

Ground 1: Failure to give effect to s. 128 of the 2009 Act and the Direction

Section 128 of the 2009 Act sets out the objectives of Ofqual. These include:

(1) Ofqual's objectives are—

(a) the qualifications standards objective,

(b) the assessments standards objective,

(c) the public confidence objective,

(d) the awareness objective, and

(e) the efficiency objective.

(2) The qualifications standards objective is to secure that—

(a) regulated qualifications give a reliable indication of knowledge, skills and understanding, and

(b) regulated qualifications indicate —

(i) a consistent level of attainment (including over time) between comparable regulated qualifications, and

(ii) a consistent level of attainment (but not over time) between regulated qualifications and comparable qualifications (including those awarded outside the United Kingdom) which are not qualifications to which this Part applies.

(3) The assessments standards objective is to promote the development and implementation of regulated assessment arrangements which—

(a) give a reliable indication of achievement, and

(b) indicate a consistent level of attainment (including over time) between comparable assessments.

(4) The public confidence objective is to promote public confidence in regulated qualifications and regulated assessment arrangements.

It is clear from the matters highlighted above that these objectives can only be achieved by a standard which gives “a reliable indication” of the individual candidate’s “knowledge, skills and understanding” (s. 128(2)(a)) and the individual candidate’s “level of achievement” (s. 128(3)(a)). Indeed, it is difficult to see how the objective in s. 128(4) of promoting public confidence in regulated qualifications can be achieved by any other means.

Section 129(6) of the 2009 Act requires Ofqual to have regard to any Direction issued by the Secretary of State. It is clear that the intention of the Secretary of State as set out in the Direction that the calculated results “should be based on their exam centre’s judgements of their ability in the relevant subjects” and that the method of calculating final grades shall be “based on the evidence provided for each student”.

In fact, it is now clear that as a result of the standardization model adopted by Ofqual, those candidates from examination centres with more than 15 students in a particular subject were awarded their grades not on the basis of their CAG (which was based on the evidence of their individual performance), but on the prior attainment of students from that centre in previous years.

This is contrary to the statutory objectives in the 2009 Act and to the Secretary of State’s Direction and demonstrates that, in adopting and applying the statistical model, Ofqual has acted outside its legal powers and hence ultra vires.

Ofqual’s decisions have also resulted in gross unfairness to individual candidates whose diligence and progress is not reflected in any way in their final grades. The impact of this on their future educational and career opportunities does not need to be spelled out. This unfairness is exacerbated by the limited right of appeal which does not provide any means of redress for very substantial numbers of candidates whose CAG has been downgraded.

Ground 2: Indirect discrimination

Further, the effect of Ofqual’s adoption and application of the standardization model has a disproportionate effect on candidates at larger examination centres which are often those at Sixth Form Colleges or Colleges of Further Education. There is a greater proportion of candidates from BAME backgrounds at Sixth Form Colleges and Colleges of Further Education than in schools which have an integrated Sixth Form and fewer candidates in each subject. This is starkly demonstrated by the difference in outcomes at Independent Schools (where there has been an increase in the number of the highest grades awarded of 4.9% from 2019) and schools in the Greater Manchester area such as Loreto College where the numbers achieving the highest grade has declined by 3.6% and the number of students whose CAGs have been downgraded is as high as 39%. This discriminatory impact has been further exacerbated by application of national standardization which has fallen disproportionately on larger centres as demonstrated by Loreto.

It also appears that other groups of candidates with protected characteristics under the 2010 Act have suffered disproportionate downgrades indicative of indirect sex discrimination and disability discrimination. Further particulars of these matters will be provided in the Statement of Grounds.

There can be no justification for this differential treatment which is therefore unlawful.

Ground 3: Unfairness in relation to socio-economic status

For the same reasons identified above, candidates with a lower socio-economic status have also been disproportionately affected by the application of the standardization model. These are among the candidates who are likely to have suffered most from the restrictions on schooling imposed during the Coronavirus pandemic. The failure of Ofqual to take account of, and correct for, this effect in applying the standardization model is so grossly unfair as to amount to irrationality.

Further information

Any Equality Impact Assessment commissioned in relation to the development of the standardization model and any subsequent assessments carried out into its impact.

The evidence base for Ofqual’s assertion that there has been no unfair impact on different socio-economic groups.

Remedy

When it became clear that the above outcome was likely, Ofqual should have put in place some kind of corrective within the standardization model or have abandoned that model altogether in favour of the CAGs to ensure that the interests of individual students were not being unduly and unfairly prejudiced by the application of a model designed to achieve overall consistency with previous years. GMCA invites Ofqual to undertake such action as a matter of urgency.

Response

Given the extreme urgency of the matter, GMCA seeks a response by 4pm on Thursday 20 August 2020.

Address for reply and service on court documents

Liz Treacy, GMCA Monitoring Officer

Liz.treacy@greatermanchester-ca.gov.uk

Yours faithfully

Liz Treacy


Article Published: 17/08/2020 17:14 PM