R (on the application of London Borough of Lewisham and Others) v Assessment and Qualifications Alliance (AQA) and Others  EWHC 211 (Admin); (2013) PLLR 033
Education - Ofqual - GCSE - Grades
Neither Office of Qualifications and Examinations Regulation nor the Awarding Organisations had erred in law in setting the grade boundary for the GCSE English qualifications in June 2012.
13 February 2013
Elias and Sharp JJ
(1) This case was the rolled up hearing of two clams for judicial review in relation to the award of GCSE English qualifications in August 2012. The Claimants were over one hundred and fifty local authorities, schools, teachers and pupils.
(2) The new GCSE examination was introduced in September 2010 and had three distinct features. The first was that internal assessment increased from 40% to 60%, and coursework was replaced with ‘controlled assessments'. Second, the examinations were modular, and could thus be taken at various points during the course. Third, examinations were marked after each January/June examination date, and the marks and grades were made public.
(3) A key issue in this case was whether teachers were led to believe that the boundary mark between grades C and D would remain the same from one examination date to the next, and whether it was fair and lawful for an awarding organisation (‘AOs') to change this boundary significantly between one assessment and the next.
(4) The Defendants were adamant that the June examinees received the correct grades, even if some of the January examinees possibly received slightly more than had been due. It was denied that the Defendant ever represented that the same grade boundaries would be applied. The AOs also alleged that they were non-governmental bodies, and were therefore not subject to judicial review, unlike Ofqual.
(5) There were four grounds relied upon by the Claimants:
(i) The conduct of the Defendant amounted to an abuse of power because it was so unfair.
(ii) The AOs and Ofqual failed to give effect to the Claimant's legitimate expectation that grading standards would be the same throughout the year.
(iii) The Defendants acted irrationally in failing to treat all candidates alike.
(iv) In treating tolerance guidance as to marking as though it were a binding principle, the Defendants acted unlawfully.
(6) The Claimants accepted, in oral submissions, that predicted results can be used as a guide and can inform the decision as to the appropriate grade boundary. They alleged, however, that in practice, the statistics dominated the analysis and diminished the value of the qualitative assessment of the examinations.
(7) HELD: The Court rejected the submission that it was not appropriate to use the ‘statistically recommended boundary' (‘SRB') to fix the range in which a grade boundary was to fall. There had also been a genuine assessment undertaken by the Awarding Committees, which were responsible for ensuring that the grades awarded were appropriate.
(8) The grade boundaries set were held to fairly reflect the achievements of the cohort of students. The Court could therefore only conclude that the January assessments had been too favourable.
(9) The Court dismissed ground 4, finding that there had been no unlawful fettering of the AO's discretion by Ofqual, only a proper concern that the tolerance limits should only be departed from where sufficient justification could be provided. The guidance had also only been treated as guidance, and not as a binding rule.
(10) Regarding legitimate expectation, the Court referred to the principles set out in R (Niazi) v Home Secretary  EWCA Civ 755, which stated that the assurance given must be clear, unequivocal and ‘pressing and focused'.
(11) The Court determined that the Claimants were unable to point to any clear and unequivocal assurance. The Claimants were entitled to expect candidates to be treated in the same way, but that expectation was not the same as the sort of expectation protected by the doctrine of legitimate expectation.
(12) The Court determined that conspicuous unfairness did not constitute a fresh ground of review rather it was a particular form of irrationality. The Court found that the grounds relied upon by the Claimants failed to demonstrate any unfairness.
(13) The Court acknowledged that it was known that before the June grades were finalised, there was at least a risk that tighter standards were being adopted. The Court considered that the case came nowhere near to establishing conspicuous unfairness. The Defendants were not obliged to apply the January mark scheme and give C grades where they felt them not to be justified.
(14) Ofqual maintaining the quality and value of the qualification was a powerful and legitimate justification in the public interest, even though it had an undesirable consequence of June students being subject to tougher assessments. There was no unfairness in what the examiners did, and they were legitimately correcting the false standard that had arisen in the January exams.
(15) In terms of amenability to judicial review, the Court considered that the real question was whether there was any other alternative remedy. It held that the remedy sought could not realistically have been provided by Ofqual. The Court considered that Ofqual was central to the applications, and it had to be challenged through judicial review. As it was the AO's decisions being challenged, they had to be party to proceedings.
(16) The Court concluded that the applications had been properly brought, and thus permission to bring the claims was granted. The applications themselves were dismissed, as it could not be said that Ofqual or the AO's had erred in law.
 - Predicated results guide.
 - SRB
 - Genuine assessment.
 - June grades fair.
 - Ground 4.
 - Legitimate expectation doctrine.
 - No clear assurance.
 - Type of expectation.
 - Conspicuous unfairness & irrationality.
 - No unfairness.
 - No conspicuous unfairness.
 - Legitimate justification.
 - No unfairness.
 - Availability of remedy sought.
- - Conclusion.
- - Permission and dismissal.
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