EQUALITY ACT 2010... EXAM APPEAL...DISCRIMINATION??

[NotVeryAppealing]

Hi,

I'm going to try to keep the details out of this to protect our identity but I'm looking for advice linked to a scenario relating to my DC but imagine there could be many others in similar situation.

Imagine someone who has a mental health condition and manages well overall but has regular periods when they are in a bit of a crisis. An example might be bipolar, I suppose, but this doesn't apply here.

Supposing that one feature of the illness was that a student knew they could not cope with 100% attendance so they allowed themselves low attendance periodically and to miss some college work as part of an overall pattern of coping and not feeling overwhelmed.

Imagine they had a track record to doing well in exams and able to conserve energy for a 'big push' in terms of revision and catching up on missed study, despite being very unwell in the months before hand.

A person with a situation like this could be at a particular disadvantage when Centre Assessed Grades were used for final exams grades, as the grade may have been based on a low point in their final year that coincided with college closure- and their teachers may have doubted their ability to turn things around, academically.

Could it be argued that someone with a mental health problem like this was at a particular disadvantage due to this year's exams fiasco and that the use of CAGs that reflect a low point in college work just before lockdown, might constitute discrimination.

I found this quote on a legal website which got me wondering:

"Direct discrimination in schools is when a child is treated less favourably on the grounds of gender, disability, race, sexual orientation, religious belief or age. For example, assuming a child may not be able to reach a certain level of work because they are disabled. In these cases the act itself is unlawful, not whether or not someone meant it."

Could such a case be discrimination even if teachers did not intend to discriminate?

BTW I am aware that many students have poor grades due to saving all their effort for the big push at the end and feel robbed of doing their best, but being idle isn't a protected characteristic!

Any thoughts?

Forgot to say, this is about A levels.

Does your child have a diagnosis?
How did they do in any exams last year?
When doing their GCSEs, did they have any special consideration?

It’s hard to say, as the situation is personal to one person. TBH, a large number of students ended up with a better grade than they may have got had they sat the exam. That’s clear due to the huge increase in grades overall.

Supposing that one feature of the illness was that a student knew they could not cope with 100% attendance so they allowed themselves low attendance periodically and to miss some college work as part of an overall pattern of coping and not feeling overwhelmed.. Is this in agreement with the college?

Thanks for your replies.

To answer your questions:

Yes, there is a diagnosis.

Very good GCSEs

No specific arrangement about attendance but a good level of awareness on the part of the college about reasons for absence.

Reduced timetable when doing GCSEs (different school)

No special consideration for GCSEs as that's not applied for onging issues, I believe.

ongoing

I'm going to take advice about my DC's appeal but I'm really interested in people's thoughts about whether this could be a wider issue as students get access arrangements based on a expectation of a certain set of exam conditions.

If you then cancel the exams and move the goal posts for success, then you come up with a need for access arrangements to cover a different assessment conditions, perhaps.

I'm just philosophising a bit i suppose, here.

Without providing evidence that grades given were too low which would be based on mock exams appeal unlikely. There will be a set of Autumn exams so that if they believe that could and should do better they can sit the exams.

You are describing my DS -although his attendance was sanctioned by the college

CAGs were not based on any one piece of data

The pupils were looked at holistically with teachers making predictions based on their knowledge of their past performance, assessments, any coursework submitted etc etc

Attendance was raised as an issue for DS, despite being sanctioned by the college, because it meant there were gaps in the teaching that had not been tested etc

Also, to predict a higher grade meant that someone else, who had proved their level of knowledge, needed to be moved down in the ranking due to the requirements to rank all pupils in the subject

DS is in the very fortunate position that even though the grades were not what we thought he was capable of, they were good enough to get him into his first choice uni
-had they not have been then we would have looked into a legal challenge

Can you prove the discrimination? The school would have taken into account any known issues and should have formed a CAG based on their genuine belief of how your DC would have performed in the exam (if they would have had special considerations, that would have been taken into consideration). It is a professional decision taken on what the teacher has observed throughout the time teaching your DC. Your DC hypothetically being able to pull things out the bag on exam day is not discrimination on the part of the teacher - they can only record the truth they have personally observed. Without proof of direct or indirect discrimination that affected the teacher's professional judgement, I would get your DC revising like crazy for the Autumn Series if they need better grades. Sorry OP!

I’m not sure what point you’re making about exam arrangements op- Children get exam arrangements based on their usual way of working in the classroom to ensure that they are not disadvantaged in exams.

I would disregard the attendance and concentrate on data: Does the school have any evidence to suggest that your DS was capable of achieving the better grade?
If all previous tests, exams and mocks point towards the poor grade there is no way I could have justified giving the better grade, grades in my school were moderated rigorously and I needed evidence for everything. I did have a case of shocking mock results at GCSE due to illness but was able to justify giving a much higher grade using other work as evidence.
I hope this helps a bit!

Yes, potentially discrimination under the Equality Act providing your child has a protected characteristic which is unable to determine on the info. There is scope for going through the complaints system, and is susceptible to Judicial Review.

As worldweary45 says, CAGs were not based on any single piece of data. The CAGs should have looked at all the evidence. If they did so and took into account any agreed adjustments for the exam it is unlikely you have a case.

Dd's school used exams and assessments throughout Year 11 and 12 to decide their most likely grade, rather than just the mocks they did before lockdown. Sixth form in their school would have been the same.

Sorry throughout year 10 and 11 i meant

CAGs would absolutely include expectations including using access arrangements.
Eg. Child requires a scribe - has consistently been awarded a grade 5 in mocks, would be awarded a 5 despite not having used a scribe. Same for extra time, overlays etc. The evidence is there of their prior attainment and potential.

A lot of students have been hit like this - having sacked off mocks and classwork hoping for a last big push, their CAGs are a direct reflection of the work they have put in so far.

Could you evidence that your son should have got a better grade? I suspect not - his mocks weren't great, his attendance isn't great, his classwork won't be great. What were his target grades (also a reflection of potential based on prior attainment at GCSE plus ongoing assessment during the 18m of A levels)? Does he have a formal diagnosis? Is his absence agreed/managed by the college, maybe written into an EHCP? No? Then it's just your/his word against the professional, experienced opinion of his teachers. If he's a last minute Larry he needs to do the exams in the autumn.

Many many teachers will be using COVID for years as a 'this is why mocks are important' learning tool.

Hi everyone, I'm just popping in with an update. We heard yesterday day that DC's A level appeal was successful in all three subjects.

It is a relief that the college led this appeal as we were worried we would have otherwise have to have lodged our own appeal based on discrimination, hence my OP.

I do think that the college failed to fully take my DC's situation into account when awarding grades. They now acknowledge this perhaps submitted new data.

I'm sorry if it's annoying that I didn't mention the college appeal initially, I wanted to try to separate the two issues in my mind and decide if discrimination had occurred as I wanted to get my plan B ready.

I think that we won the appeal as DC had been treated unfairly. And I maintain that because mental health was central to this, it constituted discrimination.

Thanks so much to everyone who took the time to post.