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Law firm threatening legal action over A-level grades

Law firm Leigh Day has written to The Office of Qualifications and Examinations Regulation (Ofqual) threatening legal action over the way in which A-level grades were awarded to students unable to take formal exams due to the Coronavirus Pandemic.

Posted on 16 August 2020

Leigh Day, on behalf of 18-year old student Curtis Parfitt-Ford, have written to the body which regulates qualifications, examinations and assessments in England, claiming the process adopted to award grades this year is unlawful, and called on the Government to review and revise the scheme as a matter of absolute priority.

Mr Parfitt-Ford, who studied at a comprehensive school in west London, says he feels angry on behalf of thousands of students affected after 40% of students received A-level grades that were one or two grades lower than their ‘Centre assessment grades’ (CAGs). He has created a GoFundMe page to help with the legal fight.

On 3 April 2020, Ofqual announced that schools and colleges would be required to provide CAGs based on a wide range of teacher-assessed evidence, including classwork, previous exam results and non-exam assessments.

Announcing the measure, Ofqual’s Chief Regulator Sally Collier stated: “school or college based assessment already has an important role in many GCSE, AS and A levels and in extraordinary circumstances such as these, schools and colleges are best placed to judge the likely performance of their students at the end of the course”

The CAGs was then put through a “process of standardisation” including an “historic grade distribution” which saw the issued grades for large numbers of students determined wholly or largely by reference to how students at the school in question had performed in the relevant subject over the previous three years.

This meant that any student in a cohort of more than five pupils could have their exam grade determined, at least in part, by factors unrelated to their individual academic ability.

Those effects were disproportionately felt by students at state schools: whilst independent schools saw an increase of 4.7% in the number of students securing A/A* grades from 2019, the percentage increase of A/A* grades was considerably smaller for state schools, and static for further education colleges.

Lawyers argue that this creates substantive unfairness in university admissions and in many apprenticeship schemes, with private school students more likely to be able to meet any offers and secure places than equally academically strong state school students.

In the letter before action sent to Ofqual by Leigh Day on 14 August 2020, lawyers for Mr Parfitt-Ford argue that the model is unlawful on a number of levels, including the fact that, for a large number of students, it fails to take account of relevant considerations such as the teacher’s predictions and takes into account irrelevant considerations such as the historical success of a school. Furthermore, the model used is very different from that announced after Ofqual’s consultation and is not in line with its own policies, meaning an unfair procedure was followed as a time when particular care was needed to ensure an equitable process.

They also argue that the different weighting given to historical performance data in respect of cohorts of different sizes produces substantively irrational results and profiles students in a way that is unfair and outside their expectations. For example, a student may be predicted A grades in both maths and further maths. Because the maths cohort is large, the model adjusts his maths grade downwards (to, say, a B) largely on the basis of the historical performance of the school. Because the further maths cohort is small, his CAG of A in further maths is accepted.

Curtis Parfitt-Ford said:

"The Government must make this year's grading system fair for all students - and it must now resolve the uncertainty which hangs over the entire process. We hope that the Government will change course urgently over the course of the next hours and days, but we're prepared to take legal action if we must to ensure that students aren't disadvantaged by the Government's decisions to grade their schools rather than their own performance.

"With more than 225,000 supporters on my petition to the Government, and having raised more than £15,000 in support of our legal case, it's absolutely clear that this is a matter about which people are justifiably angry. A system that works only for some simply will not do; whilst there may be no perfect solution, we are not willing to stand by and let the Government get away with an appallingly bad one."

Cori Crider, co-founder and Director at Foxglove, said:

“The government needs to grade the student, not the school. We’re only in this disastrous position because the government didn’t listen to expert advice sooner. The best way to fix it now is to allow appeals on academic merit that include teachers’ assessed grades – not just to mark students down, but to mark them up. We don’t want to have to take the government to court, but if we have to, we will.” 

Estelle Dehon, barrister at Cornerstone Barristers, who is working with David Wolfe QC (Matrix Chambers) and Ciar McAndrew (Monckton Chambers) on the challenge, said:

“Ofqual’s standardisation process, which was supposed to be designed to prevent unfairness, has in fact done the opposite – it has exacerbated unfairness arising from historic disadvantage an caused those with protected characteristics like disability to be worse off. It is clear Ofqual’s model does not comply with its statutory objectives of producing ‘regulated qualifications’ which ‘give a reliable indication of knowledge, skills and understanding’ and ‘promote public confidence’. And the way the model profiles students breaches the main data protection obligations of fairness and accuracy. For all these reasons, Ofqual should urgently review its processes to remove what amounts to algorithmic bias and should give proper weight to teachers’ assessments."

Rosa Curling a lawyer in the public law team at Leigh Day said:

“This scheme has clearly been unsatisfactory and whilst there are obvious challenges in a pandemic, where exams cannot be taken, it is not acceptable to create an unlawful scheme which mostly ignores teachers and aims to base grades on the historic performance of schools and not the performance of an individual.

“We have today (Sunday 16 August 2020) written to Ofqual requesting disclosure of the documents relating to the amended appeal policy that was announced and then retracted yesterday.

“The unlawfulness of this system is clear and the Government must not continue to stymie the ambitions of a generation. They should instead have the bravery to accept they got it wrong and allow the grades provided by those who know the students best, their teachers, to stand.”

David Wolfe QC of Matrix Chambers, Estelle Dehon of Cornerstone Barristers and Ciar McAndrew of Monckton are instructed in this case.