R (London Borough of Lewisham) v AQA and others

This judicial review concerned the setting of grade boundaries for the new modular GCSE English awards in 2012 by two awarding organisations (AQA and Edexcel) under the supervision of the regulator Ofqual, and complaints that June 2012 boundaries were set so as to disadvantage June candidates compared with those assessed earlier in January. The court considered the statutory framework in the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA), Ofqual's published Code, the policy of "comparable outcomes", and the reporting tolerance introduced for summer 2012 (1% for large cohorts).

Key legal challenges were that (i) Ofqual and the awarding organisations had given excessive or binding weight to statistical predictions (Key Stage 2 derived SRBs and the reporting tolerance) so that qualitative academic judgment was displaced; (ii) there was a substantive legitimate expectation that grade boundaries would remain the same between sittings (particularly for controlled assessments) which was breached; (iii) the June decisions were so inconsistent or "conspicuously unfair" as to amount to an abuse of power or irrationality; (iv) Ofqual and the AOs failed to observe the public sector equality duty (section 149 Equality Act 2010); and (v) the AOs were not properly amenable to judicial review.

The court held that Ofqual was entitled to prioritise the statutory objective of maintaining consistent standards year on year by using statistical predictions and a reporting tolerance as a legitimate and important guide. The statistical material did not unlawfully bind or fetter discretion; the awarding committees applied academic judgment in the light of fuller June statistics and the comparable outcomes policy. There was no clear, unambiguous assurance amounting to a substantive legitimate expectation that boundaries would remain unchanged. The differences between January and June, though unfortunate for some candidates, were justifiable in order to prevent dilution of the qualification's currency; no "conspicuous unfairness" or other public law error was found. The public sector equality duty did not require a different result. The AOs were amenable to review, but the substantive claims against all defendants failed. The applications for judicial review were refused (the court nonetheless granted permission to apply).

This case was a rolled-up hearing of two judicial review claims brought by a group of more than 150 claimants (local authorities, schools, teachers and pupils) challenging June 2012 grade boundary decisions in GCSE English taken by AQA and Edexcel, with Ofqual as second defendant and two other awarding organisations as interested parties. The claimants sought relief effectively to require reassessment in June 2012 on the basis of January 2012 boundaries or, alternatively, declarations that the June boundary decisions were unlawful.

Background and factual matrix

• New modular GCSE English (first taught from September 2010) combined written examinations and controlled assessments and permitted multiple sittings (January and June) with a terminal rule requiring at least 40% completed by June 2012.
• Awards are made by independent awarding organisations (AOs) but under a regulatory regime established by ASCLA and Ofqual, which issued a Code and required AOs to follow the principle of "comparable outcomes" (i.e. preserve the currency of qualifications year on year).
• Ofqual in June 2012 required reporting where outcomes departed from statistically recommended boundaries (SRBs) by more than a "reporting tolerance" (1% for large cohorts in English), and the June awarding committees had fuller KS2-derived statistical data than in January.

Issues framed

1. Whether the AOs and Ofqual gave undue or binding weight to statistical prediction (SRBs and the reporting tolerance), thereby unlawfully displacing qualitative academic judgment;
2. Whether claimants were entitled to relief by reason of substantive legitimate expectation that boundaries would not change (particularly for identical controlled assessment tasks);
3. Whether the June decisions constituted "conspicuous unfairness" or were irrational because like candidates were treated differently;
4. Whether Ofqual/AOs breached the public sector equality duty (section 149 Equality Act 2010) in instituting or implementing the reporting tolerance; and
5. Whether AOs were amenable to judicial review or whether Ofqual was the appropriate target for challenge.

Court's reasoning and disposition

• The court analysed the statutory scheme: ASCLA gives Ofqual broad objectives (notably the qualifications standards and public confidence objectives) and statutory power to direct AOs where they fail to comply with recognition conditions; the Code is a detailed practical guide for awarding.
• On comparability and statistics, the court accepted that Ofqual could legitimately prioritise "comparable outcomes" and require AOs to consider KS2-based statistical predictions (SRBs) and to report departures beyond the tolerance. That statistical evidence, when considered reliable in June, properly informed the Awarding Committees' expert judgments; it did not unlawfully bind them and in practice boundaries sometimes departed from SRBs or tolerance limits.
• The court rejected the claim of substantive legitimate expectation: there was no clear, unequivocal assurance that boundaries would remain the same across sittings, and the published documents and the Code expressly contemplated possible boundary movement.
• On "conspicuous unfairness"/irrationality the court held that although January candidates had in hindsight been treated more leniently, Ofqual was entitled to take steps to avoid a devaluation of the qualification across years. The need to protect the currency of the qualification and the public interest in comparable outcomes justified the decision to apply stricter June boundaries despite some inevitable intra-year inconsistency.
• The public sector equality duty did not require a different approach because boundaries should not be adjusted in favour of particular protected groups and an equality assessment would have been futile where the duty had no bearing on the grading decision.
• The AOs are amenable to judicial review because they exercise public functions, but in any event the substantive complaints failed. The court granted permission to proceed but dismissed the applications.

The court therefore refused the relief sought and dismissed the judicial review claims on their merits, explaining that the modular structure and publication of unit marks gave rise to difficult trade-offs but did not render the defendants' conduct unlawful.

The applications for judicial review are dismissed. The court held that Ofqual was entitled to pursue the statutory objective of "comparable outcomes" and to require AOs to give substantial weight to statistical predictions (SRBs and a reporting tolerance) when reliable; the statistical material did not unlawfully fetter discretion nor displace genuine academic judgment, there was no clear substantive legitimate expectation that boundaries would remain unchanged, no public law "conspicuous unfairness" was established, and no breach of the public sector equality duty was made out. Permission to bring the claims is granted but the substantive challenges fail.