New term and summer round-up

Just as for millions of children across the country, it’s the start of a new term for the Monckton Chambers Education Law Blog.

It’s set to be a busy period in education circles, as schools grapple with the considerable challenges of re-opening in a Covid-secure way. Already, campaign groups are warning that children with certain disabilities face particular difficulty in returning to school, potentially giving rise to a host of legal issues concerning students’ right of access to education and their entitlements under Education, Health and Care Plans. Over the coming months, the Education Law Blog will bring you the latest news and analysis on these and other current issues in education law and practice.

First however, a quick recap on one of the biggest education law stories of the summer. Readers will not have missed the furore that surrounded the algorithm, developed by the Office of Qualifications and Examinations Regulation (‘Ofqual’), for awarding A-Level and GCSE grades to students who were unable to sit their exams due to Covid-19.

The algorithm was used by Ofqual to bring thousands of students’ predicted grades into line with the grades historically achieved by students at their school. In practice, this operated to pull down the results of high-achieving students whose schools had no history of achieving high grades. The standardisation effect was disproportionately felt by state school students in large classes: for cohorts of 5 students or less, the standardisation process was disapplied and students were awarded their teacher-predicted grades, giving a boost to the results of students from the independent sector.

The publication of the standardised A-Level results generated by the algorithm caused a public outcry and gave rise to multiple sets of judicial review proceedings. In one claim, A-Level student Curtis Parfitt-Ford argued that use of the algorithm:

• Was contrary to Ofqual’s statutory objectives as set out in section 128 of the Apprenticeships, Skills, Children and Learning Act 2009, as the results which it produced failed to give a reliable indication of candidates’ knowledge, skills and understanding, or to promote public confidence in the system for awarding qualifications.
• Risked producing irrational, arbitrary and unfair results depending on the size of a student’s cohort for a particular subject, or their school’s performance history in that subject.
• Breached the requirements of the General Data Protection Regulation (‘GDPR’) and the Data Protection Act 2018 (‘DPA’), including the rules relating to profiling, automated decision-making and algorithmic bias.
• Had been adopted in a way that was procedurally unfair, including a breach of the public sector equality duty under section 149 of the Equality Act 2010, and a failure to consult on the particular standardisation model used.

Monckton Chambers’ Ciar McAndrew was part of the legal team which acted for Curtis Parfitt-Ford (instructed by Rosa Curling of Leigh Day and supported by Foxglove).

A second claim for judicial review, brought by the Good Law Project on behalf of a number of students, focussed on the absence of appropriate appeal routes for students who were dissatisfied with their algorithm-generated grades. Amongst other things, the claim argued that the system adopted by Ofqual was inherently unfair, gave rise to an unacceptable risk of procedural unfairness at a systemic level, and was likely to discriminate against students with disabilities.

On 17 August 2020, the Secretary of State for Education and Ofqual confirmed that both A-Level and GCSE students would be awarded the higher of their teacher-predicted and algorithm-generated grades. On 19 August 2020, it was confirmed that BTEC results would also be reviewed in light of the issues identified with Ofqual’s algorithm.

However, the fall-out from the episode continues, with the Secretary of State due to be questioned by the House of Commons Education Select Committee on 16 September 2020 (following on from the Committee’s examination of various senior Ofqual officials on 2 September 2020). The Secretary of State can expect to be asked why the Department for Education failed to act on concerns about the algorithm which were identified in a report published by the Committee in July 2020.