Challenge the Ofqual arrangements for summer 2020 exam grading

by Michael Bell

Challenge the Ofqual arrangements for summer 2020 exam grading

by Michael Bell
Michael Bell
Case Owner
I want to challenge Ofqual's plans for awarding GCSE & A level grades this summer in the wake of the exams being cancelled, as they will unfairly and adversely impact my child and others like her.
Funded
on 21st June 2020
£8,064
pledged of £22,000 stretch target from 261 pledges
Michael Bell
Case Owner
I want to challenge Ofqual's plans for awarding GCSE & A level grades this summer in the wake of the exams being cancelled, as they will unfairly and adversely impact my child and others like her.

Latest: Aug. 18, 2020

The right result, eventually

WE WON!!! After watching this complete car crash coming for months, we have finally got the right result. Ofqual’s model has been consigned to the dustbin where it belongs and students will rec…

Read more

Who am I?

I am the parent of a child who would have been taking their A levels this summer, and am starting this challenge on behalf of my child and others who I know through research are in a similar situation and who, I believe, will not be treated fairly in respect of their exam grading this summer. 

What’s at stake?

Ofqual have now released the results of their consultation paper on the exceptional arrangements for exam grading and assessment in 2020, after the summer exam series was cancelled in March by the Education Secretary, Gavin Williamson. 

Ofqual’s decisions to

a) operate a “statistical standardisation process” which places more weight on historical evidence of exam centre performance than submitted exam centre grades, and

b) to not allow any appeals on the operation or outcome of that process

is going to lead to talented students who would otherwise have excelled at this summer’s exams, but who attend schools that have average or poor performance at previous exam diets, having their submitted grades unfairly marked down, simply because of the relatively poorer performance of their predecessors. 

Many students (including my daughter) will have their grades unfairly adjusted downwards and their only right of recourse will be to take the exams in the autumn. This could have a significant impact on both their future prospects and their mental health.

What are we doing about it?

We believe this is manifestly unfair and that Ofqual’s plans need to be challenged, if necessary by judicial review.

We are initially raising £3,000 to cover the legal costs (including solicitor and barrister's fees) of submitting a letter to Ofqual to challenge their decisions. Given the time limited nature of this situation we need to start our challenge at the earliest opportunity, before it is too late for our children to be awarded the grades they deserve.  

What are we trying to achieve?

We want a process of awarding grades to be implemented which is fair and does not penalise talented students simply because they happen to attend an average or poorly performing school. 

We also want the right to appeal any adjustment of submitted grades downwards through the operation of the statistical standardisation model to be given to both individuals and schools.

Background to the case

  • Evidence

a. Overarching principles initially proposed by the government

When the summer exam series was originally cancelled on 20 March 2020, Education Secretary Gavin Williamson said

“Cancelling exams is something no Education Secretary would ever want to do, however these are extraordinary times and this measure is a vital but unprecedented step in the country’s efforts to stop the spread of coronavirus.

My priority now is to ensure no young person faces a barrier when it comes to moving onto the next stage of their lives – whether that’s further or higher education, an apprenticeship or a job.

I have asked exam boards to work closely with the teachers who know their pupils best to ensure their hard work and dedication is rewarded and fairly recognised.”

The government said “The Government’s priority is now to ensure affected students can move on as planned to the next stage of their lives, including going into employment, starting university, college or sixth form courses, or an apprenticeship in the autumn.”. They also said in terms of allowing individuals to appeal “…If they do not believe the correct process has been followed in their case they will be able to appeal on that basis.”. (My emphasis).

 

b. Ofqual’s planned process to award grades 

Initially we were told that Ofqual and exam boards would work with teachers to provide grades to students whose exams have been cancelled this summer. The general principle would be that teachers, who know their students the best, submit their judgement about the grade that they believe the student would have received if exams had gone ahead. To produce this, teachers would take into account a range of evidence and data including performance on mock exams and non-exam assessment. Further details on the operation of this process would be published by Ofqual in a consultation paper.

When the Ofqual consultation paper was published, the proposed plans for the production and awarding of grades included reference to a “statistical standardisation process/model” which would be applied to the grades submitted by the students’ teachers. The consultation paper asked for responses to a number of questions, including

  • Whether more weight should be placed on historical evidence of centre performance that submitted centre assessment grades when ascertaining whether the submitted grades needed to be “adjusted”, i.e. changed to a different grade from the one submitted by the students’ teachers, as part of the model’s algorithm.
  • Whether appeals (by individual and/or exam centre) should be allowed in respect of the operation or outcome of the statistical standardisation model.

When the outcome of the consultation was published on 22 May 2020, Ofqual took the decision in respect of these items to

  • Place more weight on historical evidence of centre performance than submitted centre assessment grades.
  • Make no provision for appeals in respect of the operation or outcome of the statistical standardisation model. In other words, an individual student (or school/college) will NOT be able to appeal if their submitted grades are adjusted downwards by operation of the model. This decision was taken by Ofqual even though significantly more respondents expressed disagreement than agreement with the idea of not allowing appeals (Q28 of the consultation)

c. What these decisions mean in practice

These decisions will negatively impact a particular group of students, namely those who are outliers, talented students who would have excelled at this year’s exams but who attend a school or college that has only an average or poor historic exam performance. In effect, these talented students will have their submitted grades adjusted downwards simply because they are unlucky enough to go to a school where the predecessor students did not perform well.

To demonstrate this, let me take my daughter as an example. She should have taken three A levels this summer, English Literature, Religious Education (RE) and Psychology. Her predicted grades are A*/A/A respectively and she has an offer from her chosen University to study English Literature BA Hons which requires her to achieve grades of A/A/B respectively. At GCSE, she achieved grade 9s in English Literature, English Language and RE, so there is objective evidence she is at the top of her cohort across the country (grade 9s being awarded to approximately the top 4 to 5% of the cohort).

The school she attends however have a mediocre history of exam performance in these subjects at A level, as set out below.  


From this one can see that the previous students at the school have in the past three years never achieved above a B grade, and the average is below that, sitting more around the C to D grades.

Why is this relevant? Let us assume that my daughter’s school submit grades to the exam board matching her predicted grades i.e. A*/A/A. What will then happen to these grades when they go through the statistical standardisation process? Quite simply, her grades will end up being adjusted downwards. The process will look at my daughter’s grades, compare them to the previous performance of the school, find that the submitted grades are significantly above the previous distribution of historic grades, and then make the assumption that the submitted grades must in due to the school inflating her marks rather than that she could have genuinely achieved those marks. The model will therefore adjust her grades downwards.  

Although it is difficult to know the scale of the downward adjustment, looking at the school’s historic performance, her final grades could end up being C/B/C instead of A*/A/A. All this because previous students at her school did not excel. She will effectively be penalised because of the school she attended. This is manifestly unfair. 

Let us continue with this example. My daughter opens her results on 13 August and finds she has been awarded C/B/C. The sense of injustice will be huge. More importantly, she may not be now able to attend university as she has not achieved the grades needed. We have been told that universities will be “flexible” this year but I have already heard of examples of universities stating plainly that if the student does not achieve their required grades they will not be able to take up their place.

And there will be no right of appeal against the adjustment of these grades. Neither my child, nor her school, will be able to appeal on the grounds that she would have indeed achieved her submitted grades. This is even though there is clearly objective evidence she could have achieved them – her GCSE grade 9s make that completely clear.

Instead, the only option Ofqual can offer is for her to take her examinations in the autumn. But this will be too late then for her to attend university this year. And it ignores the practicalities of studying for these exams – how will she access her tutor support and teaching? Does she have to stay at school for a further year?

Finally, my daughter is a typical high achiever, perfectionist in nature and with some mental health issues that are tied up with that particular mindset. Knowing her, I know that if she does receive adjusted grades that do not match her expectations of her own performance, she will undoubtedly be adversely affected mentally. Ofqual and the government do not seem to have considered the massive impact their plans will have on students’ mental health. I only hope that these students do not end up harming themselves in any way as a result of this.

3. Conclusion

Returning to the Education Secretary’s initial promises, has he in fact delivered on them looking at the evidence above?

“No young person should face a barrier to moving to the next stage of their life” and the priority “to ensure affected students can move on as planned to the next stage of their lives, including…starting university…in the autumn”  – through no fault of her own, my daughter does now face a barrier and there is a distinct possibility that she will not be able to attend university as she had planned.

Will her hard work and dedication be rewarded and fairly recognised? It would not seem so. Ofqual even recognise that this situation will exist, but their only answer is the autumn exam series, hardly a practical or fair solution. How can downgrading a talented student’s grades simply because of the school they attend be a reward or fair recognition of their hard work?

Will she be able to appeal? No, it turns out she will not be able to appeal. She will have no right of recourse to challenge what is clearly a completely unfair process.

If the government really do want to work with teachers who after all “know their pupils best”, why aren’t they trusting those teachers’ judgements and seeking to overrule them with the implicit statement that they believe those teachers will not be professional enough to award the correct grade.

As parents of these talented students, we have to challenge Ofqual’s decision to operate as they have outlined. We have to get them to reconsider their decisions, preferably by rethinking the operation of the statistical standardisation process so that it can take account of an individual student’s prior performance using objective evidence, and also by allowing individual as well as exam centre appeals about the operation and/or outcome of that process. 

If Ofqual will not reconsider then we need to move forward to a judicial review to ensure our children are treated fairly and get the results they deserve. 


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Update 7

Michael Bell

Aug. 18, 2020

The right result, eventually

WE WON!!! After watching this complete car crash coming for months, we have finally got the right result. Ofqual’s model has been consigned to the dustbin where it belongs and students will receive the higher of their centre assessed (teacher’s) grade (CAG) and their calculated grade.

It’s not perfect – we should never have been in this position in the first place, and I hope those responsible for this mess will recognise the part they have played and act accordingly. Grading students on the basis of the school they attend rather than on their own individual merits was always the wrong road to go down and many have suffered greatly as a result. Some now can’t get onto the university course they want because the places have all gone, and there are still questions around how some schools arrived at their CAGs and whether that was done fairly. It should never have got this far.

But in terms of our challenge, we have the result we fought so hard for. We like to think that the pressure we placed on Qfqual helped finally topple their ivory tower and got them to realise their approach was fundamentally flawed. Focussing on the result at an aggregate national level and ignoring the adverse impact of the model’s workings at the individual student’s level was naïve at best, almost criminal at worst.

A huge thank you to all of you who gave your support to us over the two months we’ve been fighting. And a special big thank you to Amara Ahmad at Doyle Clayton, without whom we would have never launched our challenge in the first place, and who has gone above and beyond to get us to this point. Thanks also to Alice de Coverley at 3PB and Fiona Scolding QC for your valuable input, and to Sara Lomri and Hannah Moxsom at the Public Law Project for your advice and assistance with legal aid matters. 

Best wishes to all of you, 

Michael and Lexie

Update 6

Michael Bell

Aug. 15, 2020

Our fears come to pass - the fight continues

Hello again. Firstly, a big thank you to all those who have contributed since our last update email back on 1 August 2020, we really appreciate your support.

So, a lot has happened since the last update. What we had been so concerned about happening on A level results day did sadly happen. Many, many students have been cruelly affected by the workings of the Ofqual statistical model (which our claim challenged), and there are numerous examples in the press. My own daughter, in whose name our legal challenge has been made, was awarded B/B/A from CAGs (centre assessed grades, the grades her school submitted to the exam board) of A*/A*/A. All of this because of the school she goes to has an exam history where no-one at the school had achieved top grades in the previous 3 years. That’s a four grade mark down – I’ve seen even worse than this in the press, as much as 6 grades down. How can that ever be right or fair?

Luckily for her, her chosen university have been flexible and still given her the place offered, which is fantastic. But it doesn’t take away from the fact that her marks were downgraded completely unfairly. The sense of injustice is still huge. And so many students have lost their places, sometimes both firm and insurance, due entirely to the statistical model. This is a travesty and needs to be fought vigorously.

Part of our original claim was that the appeals process set out was narrow, technical in nature and did not allow individual students to appeal. We felt it was not fit for purpose. We challenged that process in our pre-action letter and continued to press Ofqual on this.

Eventually, on the 6th August, Ofqual issued a press release in which they appeared to widen the appeal route allowing a school to appeal on the basis that “wrong data” was used in the statistical model to include “where the grades of unusually high or low ability students had been affected by the model because they fall outside the pattern of results in that centre in recent years”. However, on reviewing the formal Ofqual guidance document, the same language was not used and instead did not seem to support such an appeal.

Our legal team therefore issued a second pre-action letter on Tuesday 11th August asking for clarification on this point. A response was received on 13th August (results day). The details of this can be found in our lawyers press release.  We now have confirmation that schools definitely CAN appeal on behalf of individual “outlier” students and this is good news given the complete lack of clarity from Ofqual previously. Our legal team believe that this concession is at least in part because of the legal action we have taken to date.

At the 11th hour prior to results day, you will all be aware the government came up with a last minute change to the routes of appeal such that schools could appeal for their students and ask for their mock exam grade to be applied if higher than their final awarded grade – the so called “Triple Lock”. Sadly, at time of writing there is still no detail on exactly how this would operate, and there has been widespread condemnation of the change, which has many problems associated with it. And Ofqual have yet to issue guidance on what they consider to be a “valid mock exam”. Watch this space on that one, there still seems room for manoeuvre on their side.

Over the past 24 hours, new legal challenges have been reported in the press and on social media. We will be liaising with the teams involved in these challenges and will be exploring how best we take our grievances forward given we are all challenging the same issues of unfairness, namely the way the model has operated and the inadequate appeals process. It may be that our legal team decide the best way forward is to join forces, or it may be that it would be better to continue multiple challenges against Ofqual. If we do join another challenge, the funds raised here will be applied to the new case, so your contributions will still be put towards the same fight, with the same aim, fairness and justice for our children and young people.

Lastly, we can be contacted at mbell.ofqual@mail.com if you’d like to discuss our case or the issues further. Let’s keep up the fight and continue to press the government and Ofqual to admit this is a fatally flawed system that has unjustly affected many students. We must not let them get away with this.  

Update 5

Michael Bell

Aug. 1, 2020

Ofqual response and where we do go from here?

Ofqual respond to our letter and refuse our requests

Hello to all of our backers and for those of you who are waiting for the fast approaching exam results days (A level 13 Aug and GSCE 20 Aug), we hope you are managing to control the nerves and stay sane – it’s a really difficult time. And all thanks to Ofqual of course for refusing to implement a fair grading and appeals system.

As you know from our last update, we sent our letter before claim to Ofqual on 9 July. Ofqual had 14 days to reply by the 23 July. You probably won’t be surprised to hear that we eventually received their response at 5.05pm on the 23rd, taking the maximum amount of time possible and running down the clock.

Sadly, the response from Ofqual does not give one inch, or agree to any of the requests in our letter before claim. They refuse to publish full and explicit details of how the statistical model will work, they refuse to adjust to model to put safeguards in to protect talented outliers and other similarly affected groups, and they refuse to implement an evidence based appeals process for individual students.

We suppose we shouldn’t be surprised by this response – after all, Ofqual have completely ignored the recent Commons Education Select Committee report which stated that Ofqual should publish full details of the model immediately. It begs the question exactly who are they accountable to?

The most galling thing about the response is that it does nothing to adequately address the unfair nature of statistical standardisation on bright students at poorly performing schools -  the letter acknowledges that students like Lexie may be adversely affected, but offers nothing further, other than the autumn exam series – which we all know is a ridiculous option, with students having had no tuition since March, questions over whether their school would be able to support them and even the possibility students may have to pay for their own exam fees and tuition.

So, where does this leave us?

The next step would be to issue proceedings to obtain permission from court for a judicial review. Given that time is fast running out, our legal team believe this would most usefully concentrate on getting a fair appeals process implemented. But there’s a problem, a big one, which means we can’t take that step. It comes down to costs. Not our legal costs, because both our lawyer and barrister have very generously agreed to work effectively pro bono to get this permission. It’s the potential costs that might be awarded against us should we lose the case, in other words, Ofqual’s costs. (Yes, that would be unfair given their multi-million pound budget, wouldn’t it, but that’s the way these things work).

We can’t issue proceedings until we have some way of covering that potential liability. Which, to cut a long story short, means we need to purchase insurance to cover that eventuality – and that insurance will cost £17,000. Yes, £17,000.

There is no way we can cover this kind of sum. We’ve looked at other options, such as applying for what’s know as a cost capping order, or applying for legal aid, but we’re out of time – these would simply take too long.

You can see where this is going. We need to raise £17k and very quickly so that we can progress this case and actually hold Ofqual to account in court. The only way we can do this is to ask all of you, who have already chipped in so generously, to consider contributing again. And to ask you to share this as widely as possible so that we can get other contributors on board. Perhaps there’s a Gina Miller type figure out there somewhere who could come forward and back this case and get us the justice we deserve. Here’s hoping.

Raising this kind of money is a tall order, but given the massively increased awareness of the issues, it is a possibility, with a following wind and a lot of luck. We’re trying to be positive by telling ourselves we only need 100 people to pledge £170 pounds each and we’re sorted!

We know this is a big ask, but if you could contribute again that would be wonderful. And please share this is far as you can. Otherwise, Ofqual will get away with this and many students could end up with grades that do not reflect the grades they deserve, poor grades that will stay with them literally for the rest of their lives.

One last thing. If you want to contact us privately to discuss this further, you can do so via email at mbell.ofqual@mail.com. We welcome constructive input on how we might achieve the outcome we are all seeking.


Update 4

Michael Bell

July 10, 2020

Our letter before claim goes to Ofqual

In brief 

Our letter before claim was sent to Ofqual on 9 July by Amara Ahmad, our legal adviser at Doyle Clayton, this action following the Judicial Review pre-action protocol. Ofqual acknowledged receipt and instructed their own lawyers in less than four hours – a quick response that perhaps suggests a challenge like ours was not unexpected. As per the requirements of the protocol, Ofqual have been given 14 days to respond, by 23 July 2020.

The details

The letter sets out the facts giving rise to our claim, which are largely those included in our campaign’s case description. In essence, we are challenging

  • the use of a statistical standardisation model which places more weight on historical exam performance at a student’s school/college, rather than the grades submitted by that student’s teacher; and
  • the fact that there will no right of appeal regarding the operation or outcome of that model, for individual student or school/college.

The letter also includes the compelling evidence that Scotland will  be allowing evidence based appeals for individual students and that in Ireland the model will  take account of talented outliers at mediocre and poorly performing schools, as well as stronger cohorts when compared to previous years, and also allow access to a three stage appeals process to individual students.

We await further communications from Ofqual’s legal team. As soon as we have any news on developments we will of course update you.

Please share 

We’d be really grateful if you could continue to spread the word about our case by sharing the link to this case and our story. We are finding that so many who could potentially be affected by this seem unaware that their grades will NOT necessarily be the ones submitted by their teachers – and that if they aren’t, they have no right of appeal to challenge that.

Update 3

Michael Bell

July 7, 2020

Ofqual - 1 out of 10 for effort

If you wanted objective evidence demonstrating just how utterly unfair the Ofqual plans for grading GSCEs and A levels this summer really are, read on. 

In Scotland, the SQA (equivalent of Ofqual in England) have decided to allow evidence based appeals where their statistical standardisation model has adjusted a student’s grade down from the one submitted by their centre (school/college).

And in Ireland, the government have confirmed that the statistical standardisation model will take account of the fact that the particular group of students in the school in 2020 may be stronger or weaker than in previous years, and will also allow for the fact that particular individuals within those groups might have levels of achievement that vary considerably from what has previously been seen in the school. In addition to this, they are allowing individual student appeals.

So, our question is understandably this – if other countries can allow the model to take into account high achieving outliers at mediocre schools, and will allow students a route of appeal to challenge their awarded grades, why can’t Ofqual offer the same? Their statements that these things aren’t possible don’t seem to hold much water, do they?

We will continue our legal challenge to get these things reviewed, but in the meantime, we strongly urge you to bring this inequality to the attention of the Parliamentary Select Committee on Education by submitting comments to their inquiry here (click on the “Read the call for evidence before submitting” button and then “Start” to submit your comments). You don’t need to submit a formal report, just in your own words explain why you believe the current plans are unfair and make the comparison with the plans in Scotland and Ireland.

Anyone can submit comments and it’s in your interests to do so - the more comments that get submitted, the more likely the Committee is to take notice. The closing date for comments is 21 July.  

Further updates on the legal process will follow shortly. 

Update 2

Michael Bell

June 23, 2020

The Domino Effect

As our case gains wider exposure, others come forward to make their voices heard. 

One of many is Daniel, an Oxford offer holder, who has posted his perspective here. Daniel’s views give further weight to our argument that Ofqual’s plans need to be robustly challenged, particularly in relation to their statistical standardisation model and their decision to not allow student appeals on the operation/outcome of that model.

Update 1

Michael Bell

June 21, 2020

Our case has made national headlines

Our case appeared in the Guardian on Saturday 20/6/20 with the headline "Against natural justice': father to sue exams regulator over A-level grades system" 

See - https://www.theguardian.com/education/2020/jun/20/against-natural-justice-father-to-sue-exams-regulator-over-a-level-grades-system

The article has received a lot of attention and this has massively helped with our fundraising effort and now means we have reached our first target of £3,000, which is fantastic news! This will allow us to get our lawyers/barrister to send a formal letter to Ofqual challenging their plans as the first stage of our campaign. We'll post further details as this progresses. 

Many, many thanks to all of you who have contributed so far. It is humbling to see how many of you contributed even though you don't have children directly affected by this situation, and sad to see how many of you do have children being really impacted by this in a very real way.

I urge you all to continue to share this as widely as you can, and to raise this issue wherever and whenever you can. I would also urge those directly affected to consider submitting evidence to the  Parliamentary Select Committee on Education, which is currently conducting an inquiry into “The impact of Covid-19 on education and children’s services”,  encompassing, amongst other things, “The effect of cancelling formal exams, including the fairness of qualifications awarded and pupils’ progression to the next stage of education or employment”. It is still open for evidence, which can be submitted on-line at
https://committees.parliament.uk/work/202/the-impact-of-covid19-on-education-and-childrens-services/

The louder we shout, the more likely we are to be heard. 










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