Consultation on how GCSE, AS and A level grades should be ...



Consultation responseConsultation on how GCSE, AS and A level grades should be awarded in summer 2021Consultation detailsTitle of consultation: Consultation on how GCSE, AS and A level grades should be awarded in summer 2021Source of consultation: Department for Education and OfqualDate: 15 January 2021For more information please contactTim GunningEquality and Human Rights CommissionFleetbank House, 2-6 Salisbury Square, London, EC4Y 8JXContact number 020 7832 7818tim.gunning@Contents TOC \o "1-3" \h \z \u Consultation details PAGEREF _Toc63691344 \h 0For more information please contact PAGEREF _Toc63691345 \h 0About the Commission PAGEREF _Toc63691346 \h 2The Legal Framework PAGEREF _Toc63691347 \h 3Introduction PAGEREF _Toc63691348 \h 5Response PAGEREF _Toc63691349 \h 6General remarks (particularly relevant to questions 61 to 64 of the consultation PAGEREF _Toc63691350 \h 6Comments particularly relevant to section 6 PAGEREF _Toc63691351 \h 10Comments particularly relevant to section 7 PAGEREF _Toc63691352 \h 10Comments particularly relevant to sections 8 and 9 PAGEREF _Toc63691353 \h 11Comments particularly relevant to section 10 PAGEREF _Toc63691354 \h 11Comments particularly relevant to section 11 PAGEREF _Toc63691355 \h 11Conclusion PAGEREF _Toc63691356 \h 13About the CommissionThe Equality and Human Rights Commission (the Commission) is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, and sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited by the UN as an ‘A status’ National Human Rights Institution in recognition of its independence, powers and performance.The Legal FrameworkPublic authorities in the UK are bound by the Human Rights Act 1998 (HRA) which incorporates into domestic law the rights contained in the European Convention on Human Rights (ECHR). Article 2 of the First Protocol of the Human Rights Act 1998 protects the right of every person to an education, which includes adult learners, and anyone wishing to benefit from the right to education. This right, as with the other rights enshrined within the Human Rights Act must be protected and applied without discrimination (Article 14, Human Rights Act).The Equality Act 2010 (‘the Act’) provides a legal framework that protects individuals from unfair treatment, promoting a fair and more equal society. Whilst the public health challenges posed by this crisis are unprecedented, it is essential that every individual and organisation continues to act lawfully. The Department for Education and Ofqual have a critically important role in ensuring that every learner receives a fair assessment and qualification. The Act prohibits discrimination against someone because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.Section 19 of the Act also prohibits indirect discrimination, where a policy is applied in the same way for everybody but disadvantages a group of people who share a protected characteristic. This is unlawful unless the organisation applying the policy can show that they have a real and non-discriminatory need for the policy and that they have acted proportionately in trying to meet that need.Section 20 of the Act sets out the reasonable adjustments duty. It requires organisations to take positive steps to remove barriers that disabled people face because of their disability. Section 149 of the Act contains the Public Sector Equality Duty (the ‘PSED’), which requires all public authorities and those exercising a public function to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between those who share protected characteristics and those who do not. A key way in which public authorities can do this is to assess the expected impact of their policies as they are being developed, monitor their actual impact during implementation and stop or adapt their policies when evidence shows that they can lead to unlawful discrimination or disproportionately affect people with specific protected characteristics.IntroductionThe Equality and Human Rights Commission welcomes the opportunity to respond to the Department for Education and Ofqual’s consultation on how GCSE, AS and A level grades should be awarded in summer 2021.The Commission is keen to work with the Department for Education and Ofqual to ensure that disproportinate loss of learning that has and continues to be experienced by learners from particular protected characteristic and/or socially disadvantaged groups is mitigated for in the arrangements for awarding qualifications in 2021. It is critical that government takes all necessary steps to ensure these students are not left further behind because of who they are or where they live.ResponseGeneral remarks (particularly relevant to questions 61 to 64 of the consultationThe Commission is concerned that the Department for Education and Ofqual proposals for how GCSE, AS and A level grades should be awarded in 2021 do not sufficiently mitigate for the disproportionate loss of learning experienced by many learners with Equality Act protected characteristics. Many of these learners will also be from socio-economically disadvantaged backgrounds.The proposed approach set out in the consultation gives schools considerable discretion in determining the format and content of student assessments. Whilst formal examinations this summer will be cancelled, the consultation document proposes that teachers may use exam papers set by exam boards to make assessments (although their normal weight in determining a grade may be reduced). Teachers will also be able to take into account a variety of evidence of a student’s performance to determine a grade, including through non-exam assessments. We support government’s ambition that learners should be encouraged to engage with education for the remainder of the academic year. We are concerned that remote learning is going to be necessary for an indeterminate period due to the pandemic. This will mean that learners from socio-economically disadvantaged groups and learners with certain protected characteristics will continue to experience barriers to learning which will disadvantage them in the proposed approach to awarding grades this year.The most recent evidence from the Sutton Trust shows that the impact of the pandemic continues to be unevenly felt, with 55% of teachers at the least affluent state schools reporting a lower than normal standard of work returned by pupils since the shutdown, compared to 41% at the most affluent state schools and 30% at private schools. We acknowledge that government and Ofqual say in the consultation document that “we are also aware that it may be more difficult to draw on wider evidence for students whose education has been most disrupted.” In terms of disruption, in the first month of the first period of lockdown, private school children were twice as likely to take part in daily online lessons as those in state school. Moreover, 60% of private schools and 37% of state schools in the most affluent areas had an online platform to receive work, compared to 23% in the most deprived state schools.Ofsted recently commented that ‘it is likely that [leaning] losses have been significant and will be reflected in widening attainment gaps.’We know that attainment gaps disproportionately affect children with certain protected characteristics, who were already more likely to experience disadvantage in the education system. We are therefore concerned that teachers may find it more difficult to draw on course work, for example, to form their assessment in the case of children in these groups.Whilst the government has made efforts through the ?1 billion catch-up premium to support children and young people to catch up lost learning after school closures, this programme had just started before this second period of school closure began. The delivery of the National Tutoring Programme, in particular, has been hampered by the fresh period of closures. The Department of Education should ensure that the National Tutoring Programme is fully functioning during this period of school closures. We are concerned that the proposed approach of grades being awarded on the basis of evidence of how learners are performing may disadvantage many learners who have been unable or have difficulty in accessing remote learning. There is likely to be insufficient evidence of the level of their performance from their interaction with teachers and many would have missed assessments that have taken place remotely. The proposal for teachers to be able to select questions from exam board test papers to align with topics which learners in general have been taught may help the majority of learners. However, learners who lost relatively more learning due to barriers in accessing remote learning during lockdowns or whilst isolating, such as lack of support for special educational needs and disability or not having devices or internet connectivity, will be disadvantaged in comparison to their classmates who have not experienced these barriers.If the proposal to enable teachers to select exam board test questions to align with topics that learners have been taught is implemented, our view is that teachers should assess individual learners for gaps in learning relating to the topics of exam board test questions they select and target relevant catch-up learning for those learners.We note the Secretary of State’s commitment to create a new expert group to look at differential learning and monitor the variation in the impact of the pandemic on students across the country. But we are disappointed that this expert group has still not met, nor been able to feed into this consultation. The DfE needs to convene this group as a matter of urgency and ensure that it informs the approach teachers should take to exam papers and the national tutoring programme.For many children and young people, exams are a means to further and higher education. The DfE must focus on supporting students through these transitions. For A-Level students, ministers need to work more closely with universities to ensure that offers are more flexible than in previous years. This flexibility by universities will need to last for a number of years as universities will rely on GCSE grades from this year in making offers in 2023. With GCSEs, the DfE should work with sixth forms and colleges to ensure pupils have places to attend in the autumn. In addition, the DfE needs to expand its catch-up programmes to support further and higher education establishments to provide students with some of the foundational learning that they would normally ments particularly relevant to section 6We welcome the commitment in the consultation document that any exam board test papers must be accessible for all learners, making reasonable adjustments where necessary. It will be crucial that teachers maintain accessibility of test questions and provide appropriate reasonable adjustments when selecting questions to align with topics learners have been taught. Similarly, if teachers develop their own tests of learners’ performance, the tests must be accessible and reasonable adjustments made when ments particularly relevant to section 7We welcome the proposal that the exam board support materials and training for teachers on awarding grades should include best practice on avoiding bias and discrimination. We recommend that the training and support materials covers the risk of indirect discrimination if teachers select exam board papers that do not take into account the gaps in learning experienced by some protected characteristic ments particularly relevant to sections 8 and 9In relation to the approaches for internal and external quality assurance of teacher awarded grades we recommend that quality assurance methodologies incorporate an assessment of whether there is evidence of bias and/or ments particularly relevant to section 10The proposed appeals process needs to be clear and accessible and Ofqual should monitor its effectiveness. Ofqual should ensure it reaches out to hard to reach groups to make them aware of what routes of appeal exist as well as providing advice on contacting the Equality Advisory Support Service if their appeal includes equalities issues.Ofqual needs to ensure that exam boards collect equality data of students when sampling the evidence on which submitted grades are based. They also need to ensure that this data is captured in terms of number and type of external appeals. The Department for Education and Ofqual must ensure that the appeals process is properly resourced and that students are given clear, binding, timescales by which their appeal will be resolved. This will ensure confidence in the system is maintained, and the negative impacts on pupils mental wellbeing, in particular, is minimised. Comments particularly relevant to section 11We welcome the Department for Education and Ofqual’s ambition that there needs to be a route for private candidates to receive a grade. This is particularly important in light of the evidence of a rise in the number of children being home-schooled during the pandemic.Although the ethnicity of children moving into elective home education is not monitored, there are concerns that this trend is particularly impacting on Gypsy, Roma and Traveller children.The consultation proposes four possible approaches to allow private candidates to receive a grade in summer 2021. Our initial view is that private candidates should be provided with more than one option to receive their grades. We would have concerns about sole reliance on approach (b), which requires the involvement of a school or college. While some private candidates may have a prior relationship with a particular school or college, we are aware that some private candidates in summer 2020 struggled to register with a school or college to obtain a centre assessed grade.Further, sole reliance on approach (d), exams in autumn 2021, would disadvantage those private candidates who require grades in order to progress to further and higher education institutions.ConclusionWe are concerned by the risk that the proposals for awarding of GCSE, AS and A level grades would negatively impact many disabled learners, certain BAME learners and socio-economically disadvantaged learners who have experienced disproportionally more loss of learning.It is crucial that DfE and Ofqual give due consideration to equality impacts and suggested mitigating measures provided by consultation responders in line with Public Sector Equality Duty obligations. If the proposals are implemented without sufficient further measures to mitigate the likely negative equalities impact, it will be essential that government takes measures to address the disadvantage that many learners will experience, which for many, is likely to be long-term. ................
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