Five days of A level uncertainty may be over – but is that the end of the matter for schools?

The Government has announced that the A Level, AS Level and GCSE grades awarded to students will be those put forward by their schools and teachers - the so called 'Centre Assessed Grade' or "CAG."

This follows five days of sustained criticism of the process (and algorithm) used to try and solve the conundrum of what happens where students require a grade for an A level subject but are not able to sit the examination that would ordinarily determine (in whole or in part) what that grade ought to be.

The criticism of the proposed answer, 'Standardisation' using the 'Direct Centre Led Projection' model has come thick and fast and from many directions.

The initial focus for consideration has rightly been on students: specifically, those students whose grades were revised downwards to such an extent that they were no longer able to take up their places at their preferred (or any) university. The Government's decision on Monday means that schools and colleges will no longer have to work on the volume of appeals envisaged just a few hours ago. However, there will inevitably still be issues to consider.

Could schools' decisions still be subject to legal challenges?

The Government's decision will be welcomed by students throughout the country and schools and colleges will of course be pleased that many of their students will no longer have to contend with the anguish seen widely over the last few days.

However, this past week highlights again the need for schools and colleges to ensure that all the vital work they undertake in relation to examinations and grades is in accordance with robust, clear and objectively fair procedures whereby decisions are made according to identified criteria.

In the years ahead there will still be a need for schools to counsel any disappointed or aggrieved students whilst ensuring compliance with the obligations placed on them by Data Protection legislation and anticipating the potential risk of legal challenge.

We would expect and hope that next year all students will be able to sit their examinations as usual.  However, some candidates may not be able to sit their exams: in those cases the focus of attention will then be on the process for finalising predicted grades (not quite the same as a CAG but equally subject to challenge.)

Further, schools and colleges are not legally required to lodge appeals on behalf of every candidate or indeed every candidate that asks them to. Grounds of appeal are limited as we have seen this year, but schools and colleges will need to ensure there is a fair process in place for determining whether to appeal on behalf of a student with reference to established criteria. Schools and colleges will need to bear in mind that any decision to refuse to lodge an appeal on behalf of a particular student could be challenged and so there should be a clear and equally transparent process to ensure that all such decisions may be reviewed independently and fairly.

It is important to add that a student may make a Subject Access Request ("SAR") at any time; not merely when concerned about the grade awarded for a subject and anxious to get to the bottom of how their predicted grade was arrived at.  There are specific rules that apply when responding to SARs.  Not all requested information must be released.  Schools will always need to carefully consider how to respond to any such requests because there will always be a risk that a complaint to the Information Commissioner's Office may be made.

Could students or parent sue for negligence or breach of contract?

Whether this year, or in the future, there may be further litigation if unsatisfied parents decide to commence court action against schools for 'negligence' or, in the case of independent schools, for breach of contract arising out of the awarding of subject grades or not. The keeping of a careful audit trail referencing any and all guidance published at various times by the Department for Education and others will always be important in ensuring that decisions may be supported as far as possible; that legal duties and obligations are not breached, and the risk of litigation is reduced.

The uncertainties of the times we live in means that schools require a cool head, fair and detailed procedures and objective criteria this year. The same will be needed next year; with or without Covid-19.