Examining boards

Examples from Revised Code of Practice on General Qualifications Bodies (pre-Equality Act 2010):

An oral examination for a person training to be a Russian interpreter cannot be done in an alternative way, e.g. as a written examination, because the examination is to ascertain whether someone can speak Russian."
Para 8.31

On responsibility for actions of employees:
"An Examiner working for a Scottish general qualifications body refuses to allow a pupil with a severe speech impediment to have extra time to answer in a French Speaking Test. The Examiner is employed by the general qualifications body so the body will be liable for the potentially discriminatory actions of the Examiner (in failing to make a reasonable adjustment), unless it could demonstrate that it had taken such steps as were reasonably practicable to prevent such actions..."
Para 3.32.

This page outlines the Equality Act 2010 rules covering general exam boards responsible for GCSEs, A-levels etc. Also, British Stammering Association has major resources for parents, and for teachers and students on GCSE oral work: see below Main links - stammering.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

In outline
Stammering specifically
What exam boards do the rules apply to?
Duties on exam boards
Wider reasonable adjustment duty
Code of Practice
Disputes
Links

In outline

Exam boards assessing GCSEs, A-levels and the like are covered by the Equality Act. Disability discrimination rules cover both the standards being assessed, and the way in which they are assessed.

Where disabled candidates are put at a disadvantage by aspects of an examination, an important test under the Equality Act is whether what the exam board's actions are a legitimate means of achieving a legitimate aim. This is the objective justification test - follow that link for more detail on it. The exam board's actions will often be unlawful if they do not satisfy this test.

Exam boards are also subject to the duty to make reasonable adjustments. Regulators can create exceptions to the reasonable adjustment duty (see below Specifications). Specifications have been made for England and Wales, but they are not of great importance for stammering.

Generally, the normal types of discrimination, including harassment and victimisation, are unlawful. See below Duties on exam boards.

The statutory rules for general exam boards are in EqA s.96 and s.97 (with Sch 13 para 9). Detail on what qualifications are covered is below: What qualifications do these rules apply to?

There are separate rules for trade/professional qualifications bodies and further and higher education institutions.

Stammering specifically

'Access arrangements' is the term for arrangements agreed before an assessment to allow learners with special educational needs, disabilities or temporary injuries to access the assessment, They allow learners to show what they know and can do without changing the demands of the assessment. Access arrangements include Equality Act adjustments, but also extend to some learners who do not have a 'disability' within the Equality Act.

This page focuses on the legal duties of exam boards. However, very often what will be most important is:

the practice of the exam boards (hopefully reflecting the legal rules),
how exams are normally conducted in any event, and
the flexibility allowed to schools by exam boards even without having to apply for 'access arrangements'.

At GCSE, oral work is relevant particularly for GCSE English or English Language, and for GCSE Modern Languages - or equivalent exams in Scotland. On stammering specifically, do look at the British Stammering Association (BSA) links below under Main links - stammering, which consider those exams:

For example, it can be helpful if, even under normal practice, an oral exam is done with the teacher with whom the pupil has built a relationship. Indeed, in many cases it is assessed by that teacher. It seems that for GCSE English and Modern languages access arrangements approved by the examining board will often not be needed. However, they may sometimes be needed in the case of certain GCSE Modern Language syllabuses: the particular syllabus used by the school needs to be checked.
More generally, long-term preparation for a student can be very helpful. The BSA resources linked below deal with these points and much more.

As well as exam boards, schools will therefore often have a very important role to play. They have a role in supporting students, consistently with the criteria set by exam boards. If access arrangements are required in the particular case, schools of course also have the role of approaching the exam board on these. Schools themselves have obligations under the Equality Act, which are likely to apply here.

For the practice of exam boards on access arrangements generally, see JCQ's Access Arrangements, Reasonable Adjustments and Special Consideration: General and Vocational Qualifications linked below under at Main links - general.

Stammering: Competence standards are also subject to the Equality Act

What adjustments can be made is constrained by the skills (competence standards) being tested. For example, ability to speak a language cannot be tested in writing. Understandably, focus tends to be on adjusting the way in which a given standard is assessed. Bear in mind though that the competence standards themselves, ie. what is being assessed, are also subject to the Equality Act.

For the Equality Act duties, see below Duties on exam boards.

Example: Assessing 'fluency'

If 'fluency' is a skill being assessed, that would be unlawful if it amounts to direct discrimination. Otherwise it would be subject to the objective justification test and reasonable adjustment duty as discussed below.

Example: Assessing oral persuasiveness

If oral persuasiveness is being assessed, there would be questions of 1. whether assessing it is proportionate (under the 'objective justification' test) and 2. whether what is being assessed should reasonably be adjusted. (These questions are technically separate, but a court may view them as very similar.)

Assuming it is justified/reasonable to assess 'persuasiveness', there would be the question whether it is justified/reasonable to insist that the assessment must be of 'oral' skills - ie. that speech (or speech only) be used.

Importantly, the same issues would also arise on any more detailed criteria being used to assess oral persuasiveness. Of course, the way in which competence standards are assessed would also be subject to the Equality Act.

Stammering: Exemptions from exam components

Seeking exemption from a speaking component because of a stammer is not normally likely to be advisable: see BSA Expert Parent website: Access arrangements.

The focus should generally be on appropriate arrangements to enable the student to take the component. BSA suggests it should be contacted for advice if the school of a child who stammers suggests they be exempted (BSA education helpline).

(By way of a technical note, at least in England and Wales the extent to which reasonable adjustments can be made to exemptions is subject to limitations, contained in 'Specifications' by Ofqual and the Welsh Government.)

What qualifications do these rules apply to?

The rules considered on this page apply to examination/awarding bodies which provide general qualifications such as GCSEs, A and AS levels, and various other non-vocational exams - including Scottish and Welsh equivalents. The legislation calls these bodies 'general qualifications bodies' (I will call them 'exam boards'). Examples are AQA, Edexel and OCR.

Regulations set out details of the qualifications covered:

for England SI 2010 No 2245,
for Scotland SI 2010 No 315,
for Wales SI 2010 No. 2217 (W. 193).

These rules do not apply to National Curriculum Assessments. See on those National curriculum assessments: Access arrangements (link to qcda.gov.uk).

Duties on exam boards

The full range of discrimination claims applies to exam boards, including the reasonable adjustment duty.

There are some exceptions from the reasonable adjustment duty, known as 'specifications'. However, these exceptions should not normally be relevant for stammering. See below Wider reasonable adjustment duty.

Protection under the Equality Act, including the reasonable adjustment duty, includes both the application of competence standards and the way they are assessed. On stammering, see above Stammering specifically: Competence standards are also subject to the Equality Act.

Types of discrimination claim therefore include:

Indirect discrimination: broadly where a provision, criterion or practice is applied generally, but puts people with a disability at a particular disadvantage. The exam board has an objective justification defence it shows the provision etc is a proportionate means of achieving a legitimate aim. The details are significantly more complicated than is apparent from this brief summary.
Discrimination arising from disability: being treated unfavourably because of something arising in consequence of a disability. Again the objective justification defence can apply. The knowledge requirement means that the exam board would probably need to have been told of the disability.
Failure to make reasonable adjustments: see below Wider reasonable adjustment duty.
Other types of claim are 'direct discrimination' for which there is no objective justification defence; harassment; and victimisation. More on types of claim.

Wider reasonable adjustment duty

Duty applies to competence standards, as well as method of assessing them

Firstly, remember that other types of Equality Act claim can apply, as well as the reasonable adjustment duty (see above Duties on exam boards).

Turning though to the reasonable adjustment duty on exam boards, the duty is unusually wide. It seems that the reasonable adjustment duty can apply to the question of what competence standards are being assessed, as well as to the process of assessing them. 'Specifications' (below) made by regulators can limit what reasonable adjustments need to be made. However, the specifications made (or proposed, in the case of Scotland) do not alter this principle. The specifications do not exclude competence standards generally from the reasonable adjustment duty.

So for example, if fluency or clarity of speech were a competence standard being assessed by an exam board, it seems that this could be subject to the reasonable adjustment duty. Actually, the point will often not be important in practice. Even if the competence standard were excluded from the reasonable adjustment duty, there could well be a claim for 'discrimination arising from disability' or indirect discrimination unless the exam board shows that the objective justification defence is met.

You can read more about the difference between what is being assessed (competence standards) and the process of assessing it at What are the Equality Act rules on oral assessments? Bear in mind though that the link discusses it in the context of other exams, where the distinction is important. The distinction does not apply for the exam boards discussed on this page. Before Equality 2010, the distinction did apply to exam boards.

On exam boards and stammering, including examples, see also above Stammering specifically: Competence standards are also subject to the Equality Act.

'Specifications': Exceptions to the reasonable adjustment duty

Ofqual in England, SQA in Scotland, and the Welsh Government have power to specify exceptions to the reasonable adjustment duty on exam boards (s.96(7)-(9) EqA 2010). The regulator must publish any specifications on its website (SI 2010/2245, reg 2).

England and Wales have issued specifications, and Scotland has issued a consultation draft. See the individual country headings below.

Specifications are not an exhaustive list of where adjustments should not be made. Where there is no specification, awarding organisations would be allowed to consider individuals' requests for reasonable adjustments in line with their legal duties.

Specifications are only a defence to the exam board's duty to make reasonable adjustments. They do not affect other types of Equality Act claim such as indirect discrimination and discrimination arising from disability. However, inclusion of something in a specification may possibly be some argument (though not binding) that the objective justification defence applies for these other types of claim, provided the competence standard is itself lawful.

Designing for accessibility

Ofqual's April 2011 consultation (left) describes a move to build accessibility into the design of qualifications where possible, rather than necessarily making adjustments. It says that where subject criteria have been recently reviewed, the approach to reasonable adjustments has been considered as part of the review process, and the approach set out within the subject criteria (see from para 2.6). This is also mentioned in the context of the possibility of a candidate being exempted from an exam component:

"4.8. Exemptions and the use of certificate indicators represent a complex area of reasonable adjustment and are closely linked to subject criteria. In some areas exemptions are used because current subject criteria may not allow for a more inclusive approach to reasonable adjustments. For example, if alternative forms of communication were considered appropriate for use within GCSE English subject criteria, exemptions from specific components, such as speaking, reading and listening, may no longer be required for hearing impaired or visually impaired candidates. As outlined in Part 2, we are committed to reviewing subject criteria for accessibility and inclusion, in conjunction with future planned reviews."

Link to Ofqual consultation: Specifications in Relation to the Reasonable Adjustment of General Qualifications (link to ofqual.gov.uk).

Ofqual specifications for England

Most of Ofqual's specifications for England came into effect on 1st January 2012: www.ofqual.gov.uk/for-awarding-organisations/96-articles/824-specifications-in-relation-to-the-reasonable-adjustment-of-general-qualifications

The Ofqual specifications do not have specific relevance to stammering. Some general specifications may be relevant, in particular:

limitations on when a candidate should be exempted from an exam component; and
grade boundaries and pass marks not being altered.

An example of a specification on exemptions is "An exemption must not be used as a reasonable adjustment, except where no other reasonable adjustment is available to the candidate." In any event, though, seeking exemption from a speaking component because of a stammer is not normally likely to be advisable: see above Stammering: Exemptions from exam components.

There was previously a consultation by Ofqual on draft specifications, issued in April 2011: Specifications in Relation to the Reasonable Adjustment of General Qualifications (link to ofqual.gov.uk). Also Report on consultation responses (link to ofqual.gov.uk), December 2011.

Welsh Government specifications for Wales

These mostly came into effect on 1st April 2012. They largely duplicate the specifications for England, though with a few differences. For example, exemption is not permitted from certain listed elements of the Welsh Baccalaureate Qualification. The full specifications are at wales.gov.uk.

Consultation: draft SQA specifications for Scotland

On 21st March 2012, the SQA issued draft specifications for Scotland: www.sqa.org.uk/sqa/48642.html. The consultation closes on 8th June.

Probably the proposals most relevant for stammering are that exemption from demonstrating any of the four assessed skills of Reading, Writing, Listening or Talking should not be considered as a reasonable adjustment, in relation to -

the new National Literacy Units at all levels,
new National Courses in Modern Languages and Gaelic (Learners) at all levels,
new National Courses in English and Gàidhlig at all levels, and
existing National Core Skills Communication Units and to Communication (NC) Units (here it is exemption from "demonstrating abilities in reading, writing, listening and speaking" that should not be considered a reasonable adjustment).

However, note that seeking exemption from a speaking component because of a stammer is not normally likely to be advisable: see above Stammering: Exemptions from exam components.

Code of Practice

There is no Code of Practice covering exam boards for the Equality Act 2010. However, the relevant pre-Equality Act Code of Practice remains in force even for discrimination after October 2010 (see 'Are the Codes of Practice issued by the DRC, CRE and EOC now obsolete?' (link to EHRC website)). The relevant Code of Practice - albeit based on rules which have now changed - is the Revised Code of Practice: Trade Organisations, Qualifications Bodies and General Qualifications Bodies (link to pdf on EHRC website).

Disputes

Nearly always, any issues will be sorted out with or through the school. See above Stammering specifically, and the BSA resources below under Main links - stammering.

If it is argued that the exam board (rather than the school) has breached the Equality Act, and this cannot be resolved, any court case would go to the county court (sheriffs court in Scotland). This is unlike trade/professional qualification bodies where disputes go to the more user-friendly Employment Tribunal.

A possible alternative is to approach the EHRC helpline and ask to be referred to the Equalities Mediation Service: www.equalities-mediation.org.uk. For this service to be used, there must be a referral from the EHRC and the exam board must agree.

See also Understanding access arrangements and special consideration (link to Ofqual website), including the heading 'If my application is refused, what can I do?'

Links

Main links - general

Understanding access arrangements and special consideration (link to Ofqual website)
Guidance of the Joint Council for Qualifications (JCQ): Access Arrangements, Reasonable Adjustments and Special Consideration: General and Vocational Qualifications (pdf, link to jcq.org.uk), Sept 2010 - August 2011, also known as the Pink Book. This guidance provides a major source of information about the current practices of awarding organisations as to when reasonable adjustments are appropriate and inappropriate. JCQ is an umbrella body for awarding organisations such as AQA, Edexel and OCR. See also www.jcq.org.uk/faqs/access_arrangements/
National curriculum assessments: Access arrangements (link to qcda.gov.uk) - though these assessments are not covered by the rules discussed on this page.

Main links - stammering

BSA's education page - including contact details for British Stammering Association's education officer and links to the next two resources:
BSA Parents' resource:
BSA's Expert Parent website provides information to guide parents as their child progresses through the education system, from pre-school to the end of statutory schooling at age 16. Particularly relevant regarding exam boards is its page on Access Arrangements; that section also includes 'How to help your child with GCSE oral work' and 'Helping your child to help himself'.
BSA Teachers' resource:
BSA's stammeringineducation.net website includes guides for teachers on GCSE oral work in England and equivalent in Scotland, plus tips and techniques for students who stammer for English oral work aimed at England and Scotland.
GCSE oral work - some changes (link to BSA website), 2010. (Also GCSE oral components, 2009)