GCSE judicial review dismissed

February 13th, 2013

The Divisional Court has dismissed the claims for judicial review of the award of GCSE English qualifications in summer 2012.

Giving judgment after the rolled-up hearing held shortly before Christmas, the Court granted permission to bring judicial review proceedings, stating that the issue had been one of widespread and genuine concern, but rejected the substantive claims.

Members of 11KBW represented the Claimants (Clive Sheldon QC, Joanne Clement and Joseph Barrett) and both of the awarding organisations who were joined as defendants (Clive Lewis QC and Jane Oldham for AQA; Nigel Giffin QC and Christopher Knight for Edexcel).  The other defendant was Ofqual.  Peter Oldham QC of 11KBW advised OCR, another awarding organisation who were named as an interested party.

The Court analysed the decision-making process in detail.  It concluded that the defendants had not given improper weight to statistical material predicting the proportion of candidates who should achieve C grades, and had not fettered their discretion.  With hindsight, the grading of students who took the assessments in January 2012 had been too generous, but that did not require the June 2012 cohort to be treated in the same way.  Ofqual was entitled to take the view that priority should be given to ensuring that standards were consistent year on year, and the awarding organisations could not ignore that.  There were no assurances about grade boundaries remaining constant between assessment dates, nor any consistent past practice, such as to give rise to a legitimate expectation.  Although the difference in treatment between the January and June cohorts required justification, such justification was held to have been clearly established, in circumstances where any unfairness between the January and June cohorts could not be remedied without creating further unfairness elsewhere.  The approach taken by the defendants was one which was properly open to them.

However, the Court rejected the suggestion that the decisions of the awarding organisations were not amenable to judicial review at all.  Nor, on the facts of the case, did the possibility of intervention by Ofqual represent an alternative remedy that should have been pursued in preference to judicial review.

The Court’s judgment contains a discussion of “conspicuous unfairness” as a ground of challenge in judicial review.  It holds that, whilst it is ultimately for the court to decide whether the decision-maker has abused its power by acting in a way which is conspicuously unfair, that does not give the court a wide discretion to substitute its own view of the substantive merits.  Rather, conspicuous unfairness should be seen as a particular form of irrationality.  It may be the best description for a complaint based on a sudden change of policy or inconsistent treatment, but judicial review will lie only if a reasonable body could not fairly have acted as the defendant did.

Finally, an argument based upon the public sector equality duty was also rejected by the Court, on the footing that equality implications could have no bearing upon the assessment of performance and the setting of grade boundaries (as opposed to e.g. fixing curricula and setting examination papers).

Consequential issues, including any application for permission to appeal, have been postponed to a later date.

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