While the OIA is amenable to judicial review, the courts will generally be very slow to interfere with its decisions, and where an inferior tribunal has made an error of fact, relief by way of judicial review will only be granted if the error is material. Mostyn J identified and applied these principles when dismissing a challenge to the OIA’s decision that the LSE had not been required to publish either the marking scheme or the assessment criteria for an examination which the Claimant had failed.

The LSE’s rules stated that it was required to publish assessment criteria for the course. The Claimant complained, internally, of the failure to publish a “marking scheme”. That complaint was dismissed on internal appeal. He complained to the OIA that the LSE had failed to publish “assessment criteria”. The OIA held that the LSE had not been required to publish “assessment criteria or marking schemes”.

Mostyn J held that there was a clear distinction between the LSE’s marking scheme, which  essentially set out model answers to the examination questions, and its assessment criteria, which were indicators of the standard needed for a student to achieve particular grades in that examination and which did not describe the syllabus or the scope or subject matter of the course.

The OIA had erred in conflating the marking scheme and assessment criteria, and had therefore erred in holding that the LSE was not required by its rules to publish assessment criteria. However, that error was not material, as publication of the assessment criteria could not have made any difference to the Claimant’s performance in his examination.

Further, the OIA was likely to have held, had she appreciated the distinction between the marking scheme and the assessment criteria, that the Claimant had failed to exhaust his internal remedies in relation to publication of assessment criteria, as his internal complaint had concerned the marking scheme.

Accordingly if the OIA was directed to reconsider the complaint, Mostyn J was in no doubt that it would be dismissed.

Accordingly the application for judicial review was dismissed.

R (Burger) v Office of the Independent Adjudicator for Higher Education [2013] EWHC 172 (Admin)

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.

A short recent decision of the Upper Tribunal (JS v Worcestershire County Council [2012] UKUT 451 (AAC)) has emphasised the importance, when assessing a child’s special educational needs (“SENs”), of considering the context in which he or she is performing.

R had difficulties in the areas of behaviour and emotional and social development. His parents argued that he needed a Statement of SEN because he had ADHD, dyslexia and expressive language and semantic difficulties. R was subject to a statutory assessment by the local authority (following an order in a previous First-tier Tribunal (“FTT”) appeal), but the local authority decided that R did not need a Statement and that his SENs could be met from provision generally available in a mainstream school. At a further FTT hearing the parents’ appeal against the refusal to issue a Statement was dismissed.

R attended an independent school. The evidence before the FTT from the school’s head teacher was that R had all the classic symptoms of ADHD and that his disruption was managed in very small classes (of typically 12 pupils), with 1:1 mentoring throughout the week and constantly high levels of supervision around the school. There was also a report before the FTT from a medical practitioner specialising in community paediatrics indicating that R had significant problems in the area of behaviour/social understanding as well as a diagnosis of ADHD and needed consistent teaching in small classes with a high ratio of staff to pupils.

Judge Mark allowed the parents’ further appeal against the FTT’s decision and remitted the appeal to a differently constituted tribunal. There were several bases for that decision.

First, the FTT had failed to grapple with the key question of what the extent of R’s needs would be in a mainstream school in circumstances where his needs and conduct had been assessed in a context where he was actually receiving high levels of support in a very small class (see at [18]). The FTT failed to address whether the more serious difficulties that R had previously exhibited in a mainstream school would re-occur in the conditions at the mainstream school to which R would go (D School) (see at [22]). The Judge accepted that on the basis of R’s current conduct he could see why no statement was thought to be required, however “a real issue before [the FTT] was whether the sort of attention he was getting at the current school was the reason that his current problems were so limited and whether the transfer to a mainstream school without the small classes and possibly without the same 1:1 mentoring and degree of supervision would give rise to greater problems” (see at [24]). The FTT had failed to address that crucial issue.

Secondly, the FTT had failed to explain why it had rejected the evidence of the community paediatrician that small classes with a high staff ratio were required (see at [23]).

Thirdly, the FTT had accepted some submissions from the local authority’s representative without evidence to back them up. These related to: (1) the level of support that would be available at D School and the fact that the school considered it could meet need; and (2) if R struggled at a mainstream school, it would not be necessary to wait 26 weeks for the statementing process to be completed (see at [19] and [21]). The Judge observed that it was “trite law” that submissions are not evidence and that “the tribunal should elicit how far the facts alleged are within [the representative’s] personal knowledge or based on some other evidence that can be produced”. In the absence of any other evidence, little weight should be attached to such matters (see at [20]).

The two key points to take away from this decision are:

(1) Where a child is not in a normal mainstream environment, a local authority (and the FTT standing in its shoes) needs expressly to consider how (if at all) the child performance would differ were he to be in a mainstream environment (with the provision typically available there).

(2) The situation (which often arises in FTT hearings) where information (often addressing a point that has arisen at, or very shortly before, the hearing) is conveyed to the tribunal by a party’s representative acting on instruction is potentially perilous. If no evidential basis can be pointed to for what is said the tribunal may have to attach little weight to it. The party advancing a point in this way will need to consider asking the tribunal to issue directions to deal with the submission of further supporting evidence, particularly if the point is (potentially) significant. Such a request will potentially cause delay and complicate proceedings and may well be refused if the point could and should have been anticipated in advance.