Exams and assessments were cancelled this year due to Covid-19. Those that keep up with the news will have seen the changes that have been made to how examination results and assessment outcomes were to be determined.

The matter of determining results and assessment outcomes has seemingly been put to bed after the release of GCSE exam results. This year’s results saw 78.8% of papers rated grade 4 or above. Whilst many will be happy with their results, some may not and seek to appeal. I have set out some key information and important things to consider for academies and schools (referred to collectively as “schools”) in relation to exam results appeals.

How were examination results determined?

Education Secretary Gavin Williamson announced that GCSE grades could be based on teachers’ assessments, known as centre-assessed grades or CAGs. If the grades calculated by Ofqual (the “standardised grade”) were higher, students were awarded the higher grade. In other words, students were awarded whichever grade was higher (whether the CAG or the standardised grade).

Can students appeal their grades?

The short answer is yes, but only indirectly through their school and in limited circumstances. Students can ask a school to check whether it has made an administrative error when submitting information to an exam board. Administrative errors might include, for example, mixing up 2 students with similar names. If a school finds it made a mistake, it can ask an exam board to correct it.

A school can also appeal to an exam board on a student’s behalf if it believes an exam board has made an error when communicating a student’s grades.

A student cannot challenge a school on the CAG it submitted or on a rank order position (“rank order” (RO) was an order of students by the expected performance that schools were expected to submit to exam boards). 

In the words of Ofqual “Any appeal would have to be undertaken by someone better placed than your teachers to judge your likely grade if exams had taken place. In the unique circumstances of this summer, we do not believe there is such a person”. However, students that are concerned that CAGs have been awarded wrongly due to bias or discrimination can allege malpractice or maladministration by a school. This is not strictly an appeal and therefore not subject to the deadline for appeals (see below).

If students are concerned that malpractice or maladministration has occurred, Government guidance requires that a complaint is raised through a school’s complaints policy. If a student feels their concerns have not been addressed during the school’s procedure for complaints as set out in the policy, they can raise their concerns with the relevant exam board. For cases to be considered by an exam board, students need to show something specific or something surprising about the results received, which calls for an explanation that a school has been unable to give during the complaints process.

If the exam board decides that it has a reasonable basis to suspect malpractice or maladministration might have occurred in relation to CAGs or RO positions, it will carry out an investigation to gather evidence. This is so it can decide whether or not malpractice or maladministration occurred. The exam board is likely to review academic records and talk to headteachers and to the teacher alleged to have carried out malpractice or maladministration. The board may also choose to look at other relevant data.

When an exam board decides that there has been malpractice or maladministration, for example, because discriminatory views influenced a CAG or RO position, the exam board will allow a teacher an opportunity to respond to the allegation.

If the exam board thinks there has been malpractice or maladministration, the exam board will then consider whether the results it issued were wrong and, if so, whether it should change any results.

A student cannot appeal because a mock result was higher than the grade awarded. This is because mock grades were taken into account when determining the grades to be awarded to each individual student.

Grades are protected this year, meaning that grades will not be lowered as a result of an appeal. The deadline for appeals is 17 September 2020.

Are you ready to respond to subject access and freedom of information requests?

A request by a student for their personal data (which would include their CAG or RO) is a subject access request (SAR) and will need to be dealt with in accordance with the GDPR and Data Protection Act 2018. SARs must be responded to within one calendar month.

Schools should think about the purpose for which a SAR is being made by a particular student. Schools should make a significant effort to work with students and their families to resolve any issues that may have prompted a SAR. Student's reasons for making a SAR might include:

• obtaining evidence of bias or discrimination for the purpose of a complaint relating to maladministration or malpractice (or both); and/or
• as part of general dissatisfaction with a school.

If a school is caught by the Freedom of Information Act 2000, it may also receive requests for information relating to matters such as procedures for determining CAGs.

Are you prepared for potential complaints? 

Students and their families will need to be directed to the stages of a school's complaints policy.

The formal stage of the procedure provides for complaints to be made in writing to the headteacher or chair of governors (usually under Stage 2). As the headteacher will have signed the CAGs and ROs as accurate, they will be precluded from investigating or determining the formal stage of any complaints. A school should consider whether there is a suitable alternative, such as a Governor, to fulfil this role. Investigations by someone below the post of headteacher in respect of a decision or conduct of a headteacher should be avoided.

If matters are not resolved, a panel hearing may be requested by a student or their family (usually under stage 3 of the policy).

Have you considered that bias or discrimination may require Serious Incident Reports to be made? 

In the event of allegations of bias or discrimination, the Trustees of academy trusts should consider the obligation to make a serious incident report in accordance with Charity Commission guidance (academy trusts must make these to the ESFA, not the Charity Commission).

Have you considered notifying your insurers? 

Complaints and threats of claims regarding malpractice and maladministration, in particular, should be considered for reporting to insurers, as these may give rise to a claim. Reports should be made as soon as possible to avoid loss of cover.

Allegations of malpractice or maladministration by a school are serious and schools should take legal advice as soon as possible if an allegation is made. It would also be prudent for schools to take advice as and when complaints procedures are initiated. 

If you would like to discuss anything related to the contents of this article, please contact Thomas Emmett on 01245 453847 or email Thomas at Thomas.emmett@birkettlong.co.uk.