London Borough of Lewisham & Ors), R (on the application of) v Assessment And Qualifications Alliance (AQA) & Ors

Ofqual may pursue consistent qualification standards by giving substantial weight to statistically predicted outcomes. Reporting tolerances may guide awarding bodies without becoming binding rules. Academic judgment remains required, but it may properly be informed by quantitative evidence.

Different cohorts taking the same modular qualification may receive different grade boundaries where the difference is justified by the need to preserve the qualification’s currency and consistency between years. Such inconsistency is not unlawful merely because earlier candidates were treated more generously.

Conspicuous unfairness is a particular form of irrationality. It arises only where no reasonable decision-maker could fairly have acted in the manner challenged. Private awarding bodies exercising the public function of awarding GCSEs are amenable to judicial review.

The claimants, comprising local authorities, schools, teachers and pupils, brought two rolled-up judicial review claims concerning June 2012 GCSE English grade boundaries. The claims challenged decisions by AQA and Edexcel, with Ofqual also named as defendant.

The claimants alleged unequal treatment between January and June candidates, breach of legitimate expectation, excessive reliance on statistical predictions, irrationality, arbitrary adjustment of boundaries and breach of the public sector equality duty. The awarding bodies disputed the claims and argued that they were private organisations not subject to judicial review.

The central issues were whether the June assessments were unlawful because they departed from earlier boundaries, and whether Ofqual had unlawfully failed to intervene.

1. The applications were dismissed. Permission to bring the judicial review proceedings was granted because the concerns were genuine and widespread.
2. Ofqual’s statutory objectives included maintaining consistent qualification standards and public confidence. Its broad discretion permitted the comparable outcomes policy. Statistical predictions, including Key Stage 2 data, could properly inform the setting of grade boundaries where they were considered reliable. The 1% reporting tolerance required reporting and justification outside the tolerance; it did not impose an inflexible rule. The AOs had not unlawfully fettered their discretion or treated the statistics as determinative.
3. The alleged assurance that grade boundaries would remain the same, or nearly the same, between assessment dates was neither clear and unequivocal nor consistent with the published procedures and comparable outcomes policy. No substantive legitimate expectation therefore arose. Even if one had arisen, the public interest in maintaining the qualification’s currency would have justified departure.
4. Conspicuous unfairness is not a broad power to substitute the court’s view for that of the decision-maker. It is a particular form of irrationality, requiring conduct that is immoral, illogical or similarly oppressive, so that a reasonable body could not fairly have acted as it did. The court’s function remains supervisory.
5. Candidates taking the same qualification could reasonably expect equal treatment, and a departure from a previous standard required justification. That justification existed. Applying the January boundaries would have entrenched over-generous earlier assessments, diluted standards and created unfairness between years. Ofqual was entitled to give priority to comparable outcomes, and the AOs were entitled to apply their academic judgments in June.
6. The AOs exercised a public function and were amenable to judicial review. The public sector equality duty did not require grade boundaries to vary according to protected characteristics where objective and consistent standards were the lawful objective.