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grades without exams - FAQs

30 March 2021

Please note: the information contained in this legal update is updated regularly and is correct as at 26 March 2021. The advice also specifically relates to Ofqual regulated qualifications only.

In the absence of exams, the Department for Education (DfE) and Ofqual have confirmed that the 2021 GCSE, AS and A-level and vocational and technical qualification grades will be determined by centre assessment. In response to the many questions we have received so far on this matter, we’ve set out some answers to some of the most commonly asked questions below.

Should you wish to discuss a particular matter or situation with our team of experts please do not hesitate to get in touch.

Equality and diversity

Yes. If an assessment is being conducted that will be used as part of the consideration for the final grade to be submitted, then adjustments should be made if the individual has a disability that would put them at a disadvantage when compared to another without that disability. The required adjustments must be reasonable and will depend on a number of factors – there is no one adjustment that is reasonable for all students. The Joint Council for Qualifications (JCQ) guidelines offer a good starting point in a school’s consideration of reasonable adjustments, but the adjustment to be made will depend on the circumstances and the young person in question.

The JCQ guidelines provide a good starting point and are well understood across the sector. We await further guidance from the exam boards and/or Ofqual on what they expect schools to consider, but we think it’s likely that reference will be made to these to avoid duplication, when there is a system in place that schools are already familiar with.

Yes. Where work or assessments are being considered for a student that has not had adjustments made (to the assessment or the work itself), then the consultation outcome makes clear that schools will need to consider this when deciding on the grade to award.

SENDCos/specialist teachers will need to be involved in the grading decisions for disabled students. It appears it will be up to centres to determine how to consider and what weightings should be applied when an individual has not had adjustments provided as part of their assessment; input from the SENDCo will be key to these decisions.

It is important to record the decisions around evidence and adjustments in case of complaint or further challenge.

The consultation response accepts that in a pandemic, with students often working remotely, it may not have been possible for access arrangements to be put in place whilst students were working at home. Whilst this work can be considered as part of your evidence, the fact that adjustments were not in place needs to be considered when deciding on the grade to provide in that subject. It’s important that there is a basis for the grade provided and that adequate consideration is given to how the lack of adjustments would have affected the student’s performance.

The avenue and process for any claim would depend on what it related to and who it was targeted at. The student (and/or a parent/carer on their behalf) would potentially be able to make a disability discrimination claim if they felt that reasonable adjustments had not been made or the grade or process for awarding it was in some way unfavourable because of the student’s disability.

If this was against a maintained school or academy, the claim would need to be made within six months and to the First-Tier Tribunal (FTT). Theoretically speaking, the FTT can make any order, apart from a financial order, but it is yet to be seen whether the FTT would want to seek to substitute academic judgements, even if discrimination was found.

Schools have quite a wide remit in terms of the work that can be considered when determining the grade to be awarded, including an individual’s performance throughout the course. Centres will, though, have to confirm that they have taught their students enough of the course content to allow them to progress to the next stage of education. No specific minimums will be set on this and we await further detail on how this will work. A SENDCo should be involved in any decision-making process where it is decided that an individual (with SEND) is not able to progress and a clear rationale should be recorded.

The current guidance states that “grades should reflect the standard at which a student is working, assessed only on the content that their teachers have taught, so that the grade, as far as possible, reflects what a student knows, understands and can do”. The assessment which leads to the grades must be an accurate reflection of the student’s abilities and must reflect any disability or special educational need that the student has. The fact that a student has SEND cannot be ignored, as otherwise the grade would not reflect the principle underpinning the guidance.

The key thing is that you put in place adjustments for any assessments and that, if work is considered where adjustments were not provided, this is considered when deciding on the grade to submit. Involvement from the SENDCo would also be needed. The Equality Act is about creating a level playing field of access and opportunity, but it’s not that you need to try and work out what the child would have received without the disability, as this is likely to be an impossible task.

Mental health

The Directions anticipate that the exam boards will make assessment materials available to teachers. The use of these materials is likely to be optional. There is an expectation that they would not be the only sources used and that there would be reference to mark schemes, example responses and data on past performance. Teachers are free to deploy their range of evidence (including the assessment materials provided by the exam boards) where they feel it is best to do so. So, the range of materials is up to the teacher’s judgement as long as it is within the parameters that will be set out by the exam board.

The Directions also states that the evidence should be work from throughout their students’ course of study and that teachers should assess as much course content as possible to ensure a sufficient coverage of the curriculum. The boards will not set any requirements about the minimum amount of content that should be taught or assessed, but there is likely to be a requirement on institutions to confirm that students have been taught enough content so that they can progress to the next stage of education. The guidance states that centres should continue teaching students for as long as possible, to cover as much of the specification content as possible.

Students with recognised mental health issues would be considered in light of reasonable adjustments and access arrangements should have been in place when evidence was generated.

The expectation is that students will be assessed based on the evidence that is available to teachers. This will be evidence gathered throughout the year. Usually, if a student was not able to sit an exam on the set day due to ill-health, for example, they would not be graded and may be re-entered for another session as a first sit attempt or with extenuating circumstances. There may also be circumstances where a student is not entered for an exam due to the fact that they have not attended enough during the year and hence are considered not to be prepared for the examination.

However, this year, grading is about assessments of the taught subject content. So, if the student has sufficient assessments to enable a grade to be assessed then they should be. It is however, recognised that where an individual may have missed substantially more teaching than their peers, there might be insufficient evidence to support a grade.

Teachers can use evidence of a student’s performance from any point during the course of study. The centre will make the final judgement about what is to be included and will need to document the rationale for any instances, where consistent evidence is not used for a whole class or cohort. For example, where only the work completed up to a certain point in the year (before illness) is used - if indeed there is enough to enable a grade to be assessed.

People are rightly querying how this will apply to the many students impacted by mental health issues over the course of the pandemic, from anxiety over the pandemic to the generalised struggle with mental health during lockdown. As with any concerns around mental health and impact on schooling, parents, pupils and schools should consider as soon as possible if they think mental health issues may have impacted on a pupil’s studies, work done and their likely outcomes. If support has been offered or requested, keep a clear log and ensure that notes are made in relation to any adjustments made.

At the time of writing, it is still unclear how adjustments and considerations will apply to mental health issues connected with the pandemic. Since students are not taking exams this year, the usual special consideration arrangements will not apply. However, where illness or other personal circumstances might have temporarily affected performance, for example in mock exams, centres should take that into account when making their judgements.

However, it does allow the consideration of whether it is possible for pupils and schools to consider the impact on grades if it can be shown they were suffering from a mental health condition which has affected their performance in the areas used to determine their grade e.g. set pieces of work or ongoing assessments. It could even relate to attendance over the pandemic period. If these issues are a concern they should be raised as soon as possible.

The student has the right to put forward mitigating circumstances. The quality of the evidence of the mitigating circumstance is what you are going to have to consider.

  • Is the student saying they have found the last year really stressful and difficult or are they saying that they have been incapacitated by their stress and anxiety, over and beyond the general stress levels that students across the country have experienced (i.e. the difference between normal expected exam/assessment stress and the deeper stress level of a mental health issue)?
  • Has that anxiety experienced been greater than that suffered by their peers? If so, when?
  • Did they inform you earlier in the year so you could offer support?
  • Did they seek help to manage this? GP appointments or contacting helplines? When did this take place - early in the academic year or recently?
  • Does any GP note acknowledge that the student was feeling stressed or did they diagnose/prescribe?
  • Do their symptoms meet the criteria of a disability (substantial and long term – 12 months - effect on the ability to carry out normal day-to-day activities)?
  • Have reasonable adjustments been made throughout the year for assessments or is this a retrospective claim? If it is an acceptable retrospective claim, then the absence of reasonable adjustments in assessments throughout the rest of the year and the evidence body of assessment needs to be considered.

The expectation is that students will be assessed based on the evidence that is available to teachers. Teachers judgements will be based on a range of evidence relating to the subject content that they have delivered, either in the classroom or via remote learning. Teachers will be able to use evidence about performance gathered throughout a course to inform their judgement. This might include work that students have already completed, mock exam results, homework or in-class tests. Teachers may also use questions from exam boards, largely based on past papers, to help assess students, but this won’t be compulsory. Usually, if a student was not able to sit an exam due to ill-health they would not be graded. This year grading is about assessments of the taught subject content. So, if the student has sufficient assessments to enable a grade to be assessed then a grade can be submitted with the emphasis being on the work that is there rather than the work that is not there.

The guidance states that the more recent the evidence is, the more likely it is representative of an individual’s performance. Although there may be exceptions where a student has experienced significant ill-health since the earlier assessments were undertaken. If this is the case, the centre’s rationale for weighting earlier work needs to be explained and recorded.

The assessments will be of the work that the student has submitted. If that is limited by the absence, then the grade may be based on the marks that have been given. The challenge may be that no reasonable adjustments were made at that time, but if none were needed (at that time, or were made) then there is no need to change the grade. You cannot mitigate for work not done as you won’t know what standard the missing work may have been.

As part of the reasonable adjustments it may be that a way of assessing fewer pieces of work is used to give an equivalence to a full set. Individual students might have missed substantially more teaching than their peers and are therefore, you are unable to produce sufficient evidence to support a grade. Heads of centre will be required to confirm that students have been taught sufficient content to provide the basis for a grade.

As above, it is not clear how assessments will apply to the many students impacted by mental health issues over the course of the pandemic, from anxiety over the pandemic to the generalised struggle with mental health during lockdown. As with any concerns around mental health and impact on schooling, parents, pupils and schools should consider as soon as possible if they think mental health issues may have impacted on pupils’ studies, work done and their likely outcomes. If support has been offered or requested, keep a clear log and ensure that notes are made in relation to any adjustments made.

Private candidates

Ofqual have decided that private candidates should be assessed in a similar way to other students and that exam centres can use “the full range of available flexibility in how grades are determined”, using a broad range of evidence.

This may include one or a number of the following measures:

  • drawing on evidence from other educational institutions
  • conducting assessments remotely (if necessary)
  • setting new centre-devised assessments that reflect what the student has been taught and the specification
  • exam-board-provided assessment materials; and
  • in exceptional circumstances, where insufficient other evidence is available or could be produced, conducting recorded oral assessments with a student

Centres will be asked to assess candidates based on what they have studied and allowed to conduct assessment remotely.

Types of evidence that can be used include:

  • student work produced in response to assessment materials provided by the exam board, including groups of questions, past papers or similar materials such as practice or sample papers;
  • coursework, even if this has not been fully completed;
  • student work produced in centre-devised tasks that reflect the specification and follow the same format as exam board materials and which have been marked in a way that reflects exam board mark schemes. This can include:
    • substantial class or homework (including that which took place during remote learning)
    • internal tests taken by students
    • mock exams taken over the course of study
  • records of a student’s capability and performance over the course of study in performance-based subjects such as music, drama and PE
  • records of each student’s progress and performance over the course of study.

In its consultation response, Ofqual confirmed that centres will be supported by guidance to determine the evidence on which grades for private candidates will be based, taking into account their different circumstances. The head of the assessment centre will need to complete the appropriate declaration to the exam board and the candidate should be aware of the assessment approach the centre will use. Currently, there is no guidance as to how centres can verify work submitted by private candidates, which is why reviewing a broad range of evidence is key to ensuring centres award a fair grade.

It is recognised that exam-board-provided assessment materials may weigh heavily in determining the grade for a private candidate, particularly where evidence from other educational institutions is lacking. The recently published information for Heads of Centre, advises that where a centre accepts private candidates, exam boards will expect centres to provide to private candidates a description of the main elements of their approach to assessment before they register with the centre. This means that private candidates should start working with a centre at an early stage and evidence can come from work produced throughout the course to inform the centre’s judgement. This general flexibility of approach should help candidates produce the evidence necessary to receive a grade. Exam boards will provide more advice in the coming months about the range of evidence that centres will be able to use to support their teachers’ judgements and will help candidates to understand at an early stage what they need to produce to the centre in order to achieve a grade. This guidance may address the issue of what happens when insufficient evidence is obtained and how this may affect the grade. It will likely stress the importance of ensuring candidates know what evidence they need to submit at an early stage.

Where students have been unable to undertake sufficient work on their coursework to produce meaningful evidence for teachers to mark, the exam boards will provide guidance on how work they have been able to complete could be considered as an alternative source of evidence. It may be that further assessment is necessary.

It has been decided that private candidates will be assessed by a recognised exam centre using a range of evidence (see above) in a similar way to other students. Centres will be asked to assess candidates on what they have studied, and therefore private tutors may be asked to confirm what material has been taught and provide any evidence that will need to be considered in order to determine an appropriate grade.

Ofqual have confirmed that ‘authentic’ evidence from where a student has studied, with the support of a specialist teacher or tutor can (but doesn’t have to be) be taken into consideration when centres are making judgments. However, centres should be confident that work produced is the student’s own and that the student has not been given inappropriate levels of support to complete it by the external tutor. Further guidance is to follow on how centres can determine whether evidence is likely to be ‘authentic’.

The assessments will be of the work that the student has submitted. If that is limited by the absence, then the grade may be based on the marks that have been given. The challenge may be that no reasonable adjustments were made at that time, but if none were needed (at that time, or were made) then there is no need to change the grade. You cannot mitigate for work not done as you won’t know what standard the missing work may have been.

As part of the reasonable adjustments it may be that a way of assessing fewer pieces of work is used to give an equivalence to a full set. Individual students might have missed substantially more teaching than their peers and are therefore, you are unable to produce sufficient evidence to support a grade. Heads of centre will be required to confirm that students have been taught sufficient content to provide the basis for a grade.

As above, it is not clear how assessments will apply to the many students impacted by mental health issues over the course of the pandemic, from anxiety over the pandemic to the generalised struggle with mental health during lockdown. As with any concerns around mental health and impact on schooling, parents, pupils and schools should consider as soon as possible if they think mental health issues may have impacted on pupils’ studies, work done and their likely outcomes. If support has been offered or requested, keep a clear log and ensure that notes are made in relation to any adjustments made.

An autumn exam series was not the preferred solution for most private candidates according to the consultation responses. Ofqual are looking at whether they should regulate for an autumn exam series to be held and be open to all students who were expecting to take exams this summer. It may be that for some candidates this is more appropriate. Or it may be that the candidate would prefer to find an alternative centre that teaches the subject in question. Although Ofqual cannot require particular centres to accept students, they have said they will make sure that exam boards provide sufficient guidance on an assessment approach and provide support materials to those centres that wish to carry out this role. The DfE are currently exploring ways to make sure there are affordable opportunities for private candidates to work with centres, and to encourage centres to work with private candidates.

Process - appeals

Given that the students being assessed this year will be in Year 9 or above (and therefore they are deemed to have legal capacity), any requests relating to their personal data and academic performance should ideally be received from them, as it relates to their personal data.

In the current guidance, there is no reference made as to whether a parent can or cannot appeal on behalf of a student, but any subject access requests should be made by the student themselves. There is nothing, however, to prevent a student from asking their parent or another person to manage the request on their behalf.

The best form of protection against claims is to make sure that:

  • your internally agreed processes have been followed correctly (which includes giving the student the opportunity to raise mitigating circumstances before the grades are submitted, and setting up a ‘helpline’ explaining the process and student options where they want to make representations); and
  • you have a clear and evidenced rationale for the way that the grades have been allocated, including consideration of any mitigating evidence that has been produced by the student.

The first step that should be taken in all appeals should be an internal review. The student can ask the centre to check for any “administrative or procedural” errors. If there is either, the school can submit a revised grade and the rationale for this new grade.

If, following an internal review, the grade has remained unchanged and the student retains their belief that the grade is wrong, the centre must submit the student’s appeal to the exam board. The exam board will review:

  • the evidence used to determine the student’s grade;
  • the school’s justification of the grade;
  • the concerns of the student; and,
  • the process used to determine the grade

If the exam board finds that the evidence does not reasonably support the grade, then they should determine an alternative grade. However, they will not revise the grade if the disagreement is a result of “marginal difference of opinion”.

Only after the previous two steps have been taken can the student make an application to Ofqual’s Exams Procedure Review Service. This will review the process undertaken by the exam board.

Students should be aware that their grade can both increase and decrease as the result of an appeal.

The right to appeal stands for students taking VTQs or other general qualifications in the same manner as for GCSE, AS-level and A-level students.

Appeals for students whose higher education places are dependent on the outcome of the appeal should be concluded in early September (as far as possible). This will be to allow for the confirmation of the grade prior to the commencement of the university term.

UCAS has not provided further information regarding the impact of the results and appeals this year. However, they have indicated that, should an appeal be necessary, the review should be arranged as quickly as possible. It is the responsibility of the student to keep their chosen university or college up to date.

Seeing the evidence prior to submission is to allow the students to raise mitigating circumstances and identify any errors made in advance. The school should ensure that they have a firm policy as to why the evidence they have chosen best meets the criteria to demonstrate the course as a whole.

If a student feels that the work being used does not reflect the best of their ability, it is important to consider this on a case-by-case basis, especially if the student raises mitigating circumstances, to ensure compliance with the Equality Act. This may or may not change the grade submitted. Whatever decision is made should be recorded and the reasoning as to why that decision has been made, along with maintaining consistency with the schools overarching policy on 2021 exam results.

In the guidance, it is stated that “teachers should use their expertise to decide the range of evidence that will enable their students to show what they know and can do”. The evidence used does need to demonstrate a range of evidence that corresponds as to what has been taught, which would include topics in the related syllabus.

Where a piece of the student work was completed before the guidance was produced and is no longer available, appropriate records should be included instead. For example, where mock exam scripts were returned to students for feedback, a copy of the mock exam paper and the grade boundaries used should be submitted alongside a record of the mark the student received.

Process - student representation

The review process was referred to on page six of the Directions issued to Ofqual:
“It is ‘expected’ that it will be a requirement of the exam boards on the centres that the students are able to see the evidence used to determine their grades prior to their grades being submitted. ”

This is meant to allow the students an opportunity to raise concerns over any errors, or to raise any mitigating circumstances that they feel should be considered as part of the grade submission.

The review process was referred to on page six of the Directions issued to Ofqual:
“It is ‘expected’ that it will be a requirement of the exam boards on the centres that the students are able to see the evidence used to determine their grades prior to their grades being submitted. ”

This is meant to allow the students an opportunity to raise concerns over any errors, or to raise any mitigating circumstances that they feel should be considered as part of the grade submission.

The current guidance is that the exam boards should require that all centres allow the student to see the evidence upon which their grade has been determined prior to the grades being submitted, which is currently set at 18 June 2021.

Whether this is evidence, as in each piece of work, or evidence of the rationale used is not currently clear. We hope that further guidance will bring additional clarity on this matter.

Process

The Joint Council for Qualifications have issued a template centre policy which can be found here. For further assistance, please do get in touch with us and we can provide support in drafting/reviewing an appropriate policy for you.

Last year’s guidance suggested that grades will be reported in the same way as in previous years, and therefore a similar approach can be taken again.

Calling it an ‘awarded grade’ or ‘teacher assessed grade’ should not be controversial. The main issues will be surrounding how the grade was determined, rather than what it is called.

Please note that students should be provided with sufficient information about how their final calculated result has been decided, although this should not need to include details of every piece of evidence used to generate the grade.

It is expected that, where there are personal connections between staff and students, arrangements will be made to avoid bias. This might mean assessments being marked by a different teacher or getting the mark checked by two (as oppose to one) additional members of staff. It will be up to the school to make the assessment of what is sufficient. With respect to the possible leaking of information due to the transparency of a system, it would be expected that measures were taken to reduce/manage the risk.

Ofqual has confirmed that the internal quality assurance process should include internal standardisation arrangements, so that all teachers in a centre making judgements in a subject do so in a ‘consistent’ way. The exact requirements for this will not be specified, to allow flexibility in putting in place an approach, and therefore it is not yet clear whether this will need to be an approach which is consistent within the school, a department or subject area (although it will most likely be across subjects).

It would, however, be sensible to take an approach that is consistent across the Trust as far as possible, so as to avoid major discrepancies between different schools. It is advisable to consider putting the process to your governors for approval. A clear approach will be useful to validate the decision if any challenges are made at an appeals stage.

Whilst it is also a good idea to discuss your approach with other local schools within your network and get advice/support from them, each institution will have the discretion to decide what is best for it and its circumstances. It would, however, be helpful to have the conversation to ensure that the process you are using does not fall outside the norm. Ofqual suggests that: “Dialogue with others can support effective reflection and review and help minimise bias. It can be used to check that judgements are evidence-based, to challenge any possible biases, and to review any other evidence that may identify possible bias.”

The DfE has confirmed that grades must be determined by teachers as late as possible in the academic year but must be submitted to the exam boards by 18 June 2021.

Results will be published in the week commencing 9 August, with AS-level, A-level and VTQ Level 2 results being published on 10 August and GCSE and VTQ Level 1 results published on 12 August.

Academies are able to set their own term dates and determine when their summer term ends. Therefore, you can allocate sufficient time for the decision-making process to take place.

The Direction to Ofqual issued by the Secretary of State (which can be found here) states that: “As well as any support provided by centres, exam boards should also ensure that students have further support, for example by running a helpline.”

Whilst a student hotline is recommended, the onus will be on the exam board, rather than each individual centre, to provide such service. There has not been any clarity provided as to what this would look like, and we assume that this would vary between the exam boards. Support provided by the centre could be a helpline but may also include a designated mailbox that is regularly reviewed.

It is, however, worth considering how (the potentially high number of) queries received from students will be managed and dealt with internally within your school and allocating sufficient and appropriate resource to this.

Protecting data and reputation

Yes. The current guidance states that centre assessed grades must be kept confidential until results day.

Ofqual have stated:

“An awarding organisation must take reasonable steps to ensure that, prior to its issue of results under Condition GQAA3.1, the proposed result provided to it by Centres under the requirements set under Condition GQAA3.2(a)(i) is kept confidential (including by Teachers and Centres)”

Given that the students being assessed this year will be in Year 9 or above (and therefore they are deemed to have legal capacity), any requests relating to their personal data and academic performance should ideally be received from them, as it relates to their personal data.

However, there is nothing to prevent a student from asking their parent or another person to make the request on their behalf. Where the student is not making the request themselves, you should check that they consent to their personal data being shared with the other individual before responding to a request.

As examination grades are published at a later date, the time frames for responding to a very specific request for personal data in relation to these are different to the usual one-month rule.

The time frame for a response prior to the release of examination grades is whichever is the earliest of the following:

  • within five months of the date of the request; or
  • within 40 days from when the results are published.

No alterations have been made to the time in which an FOI request must be responded to in relation to this year’s gradings. Therefore, you should respond to all FOIs within 20 school days (this excludes weekends and days when the school is closed, eg holidays or inset days). Before responding to an FOI request, you should consider if the request is for any personal data, as a response to an FOI request effectively means publishing the requested information within the world at large. You should consider if any exemptions are relevant and seek advice in respect of the appropriateness of their application.

training and events

1Jul

ISBL regional Conference Marriott Hotel, Southampton Road, Cosham, Portsmouth, PO6 4SH

Join our Partner Julia Green at this regional conference as she provides an overview of key legal developments that you should be aware of ahead of the 2021/22 academic year. Please note that this event was postponed from July 2020.

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10Nov

Optimus MAT Summit Novotel London West, Hammersmith, London W6 8DR

Come and meet the team at Optimus’ annual conference.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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