What can be done about unexpectedly poor A Level grades at your school today?

Thousands of teenagers will have received their A Level grades today, and whilst many will be celebrating, many others will be bitterly disappointed. 

Yesterday, the Education Secretary Gavin Williamson apologised to every child across the country for the disruption caused to their education by the COVID-19 pandemic, but claimed that a ‘fair and robust’ system had been put in place to ensure A Level results reflect student achievement which he described as a ‘triple lock’.

The intention is that A Level students have three main options

• First, they can accept the grades generated today by the widely-criticised ‘standardisation model’ which is based on each school’s or college’s assessment of their A Level students’ grades which have then been adjusted using an algorithm based on the school’s or college’s historical grades. The main concern about this is that the grades of strongly-performing students, individually or grouped in a particular year, may be driven down by the school’s or college’s past performance. Where a school or college is improving, this may also be discounted by the algorithm.
• Secondly, if the school or college offers resits later in the year, students may opt to do them and then rely on their resit grades if they are better. Obviously, this is of limited help for university admissions processes starting now.
• Thirdly, Mr Williamson indicated that students could elect to rely on their mock exam results. Which mock exams will count has yet to be made clear and grades often improve between mocks and final exams, so this last minute change may provide little comfort.

So, is there a fourth option of challenging today’s standardisation model generated grades directly?

The short answer is ‘yes’, but the appeals process established by Ofqual is limited. Critically, most appeals will need to be brought by schools and colleges themselves, rather than their students. The system is complex and many schools will need legal advice to navigate it, identify and gather the evidence needed and present it compellingly.What follows is a summary of the main options.

What can be done by a school or college if its students have been awarded lower than expected grades?

Schools and colleges can appeal to exam boards in certain limited circumstances. In particular, an appeal can be submitted on the grounds that the wrong data was submitted or used to calculate the results as part of the standardisation model, or where there was an administrative error, including when the final grades were communicated.  Ofqual has published guidance addressed to schools and colleges and, separately to students (here), providing some examples of ‘wrong data’ appeals. The concept is clearly intended to be broader than that of an administrative mistake by the school or college itself, or by an exam board mixing up one school’s data with another’s.

The examples given include where the institution can provide evidence of significant demographic changes in the cohort of students between the current and past years (“for example if a single-sex school has changed to co-educational”) or evidence of an ‘event’ in the relevant period that suggests reliance on previous years’ performance is not a reliable indicator (“such as flooding or fire which meant students had to re-locate”).  It adds that an appeal by a school or college can be considered:

Where a school or college has evidence that results this year were likely to show a very different pattern of grades to results in previous years, including where a school or college is concerned about the way the statistical model could affect individual high-ability students who might be expected to receive results that are out of line with the school or college’s historical results.

Schools and colleges need to move quickly to build a case on appeal and should not hesitate to take advice now. The deadline for such appeals is 17 September 2020. As a first, urgent step, schools and colleges should seek the detailed information that examination boards are required to provide explaining how they have awarded grades (if this has not already been provided). Ofqual’s guidance to schools and colleges explains what they are entitled to expect.

Schools and colleges that have not already done so will also need to urgently put in place fair arrangements for:

• providing students with the data they seek about their assessments and rankings;
• dealing speedily with internal reviews of decisions not to appeal students’ awarded grades; and
• dealing with complaints that there may have been bias, discrimination or other forms of malpractice or maladministration that skewed their assessments or rankings.

Expert legal advice can help ensure such procedures are seen to be fair and operate properly.  

What can disappointed students do right now?

A key preliminary step for any student disappointed with their A Level grades is to ask today for a copy of the documents:

• setting out the grade that they were assessed at by their school or college for each A Level;
• explaining how that assessment was done (Ofqual tells students “[w]here you believe there may have been an error in your centre assessment grade(s), your school or college should be able to explain how it made its judgement, and what evidence it relied on”); and
• giving details of their assessed position and ranking relative to other students at the school (though the names of those other students will need to be blanked out).

Many schools and colleges will have a system in place to allow such information to be requested straightforwardly and provided speedily.

If not, the request should be made now in writing both to the school of college itself and to the relevant exam board. When writing, students should supply copies of two forms of identification (such as a copy of their pass for the school or college, passport or driving licence and official correspondence addressed to them at home) and state that they are “seeking access under the Data Protection Act 2018” and ask that the request is processed and answered urgently, i.e. within seven days, because they need the information to properly consider their options. Seeking documents with personal data of this kind is called “data subject access” (more information about the associated legal rights can be found here on the Information Commissioner’s website).

Data subject access requests of this kind can take up to one calendar month to process (as explained by the Information Commissioner here) but, by law, they must also be dealt with “without undue delay” and there is an argument that answering a request in a month, just days before the time limit for a student’s school to appeal on their behalf, would be unlawful.

Students have no right to appeal their school’s or college’s assessment of their grade, but they can ask the school or college to appeal its own assessment of their performance, or their rank order relative to its other students, for example if a mistake was made or on any of the other bases for schools’ and colleges’ appeals discussed above.

Students should keep in mind that they will have very little time to seek the documents that relate to that assessment and ranking, compare them with the grade actually awarded today, establish whether something has gone seriously wrong and ask their school or college to appeal to put it right.

If the school or college refuses to make an appeal it must have arrangements in place for that refusal to be reviewed internally, but Ofqual has not made it mandatory for reviews to be dealt with before the 17 September deadline. This element of the system is particularly problematic and could lead to judicial review challenges of schools and colleges, or of decisions refusing to consider their appeals late if internal reviews are turned down or upheld but only after the deadline.

Last, Ofqual says that concerns about bias and discrimination in schools’ assessments and rankings will be taken seriously, particularly where they are evidence-based. It advises students: 

If bias or discrimination affected your centre assessment grade(s) or rank order position(s) this summer, this could be a form of malpractice or maladministration. If you think malpractice or maladministration might have affected you then in the first instance you should discuss this directly with your school or college, and raise a complaint through its complaints policy.

A school or college that investigates such a complaint and finds it is well-founded and did make a difference, or could have, should deal with that by appealing on the student’s behalf.

Ofqual’s guidance to students explains that there will be a second stage to this process: 

If you feel that your concerns have not been addressed, you could then consider raising your concerns about malpractice or maladministration with the exam board which issued your results. It is important to remember that this would not be an appeal, but rather an allegation that malpractice or maladministration occurred in relation to your centre assessment grade(s) or rank order position(s). Such allegations would be serious, and taken seriously. As you would be making a malpractice/maladministration allegation you would not be subject to the same deadlines as those set for appeals.

‘Fair and robust’?

Not really. None of the consequences of the pandemic are easy to manage, but the Government and Ofqual have had plenty of time to set up a system to award A Levels as fairly as possible. Regrettably, what they have come up with is confusing and complex and puts huge pressure on schools and colleges themselves to meet the concerns of students that are disappointed. The effectiveness of the system will be sorely tested in the weeks ahead and many schools are likely to find themselves scrambling to make the best of it by championing their students’ interests through the appeals process, notwithstanding its obvious limitations.

For further information, please contact John Halford, Emma Varley or Karen May.