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 do the rules apply to?
Duties on exam boards
Code of Practice
Disputes
Links

In outline

Exam boards assessing GCSEs, A-levels and the like are within 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 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 very often subject to the duty to make reasonable adjustments.

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

There is a consultation by Ofqual on setting certain limits to the reasonable adjustment duty in England. More on the Ofqual consultation - this links to a separate page on the reasonable adjustment duty in relation to exam boards.

The statutory rules for general exam boards are in EqA s.96 and s.97 (with Sch 13 para 9). They do not apply to trade and qualifications bodies and further and higher education institutions, which have separate rules.

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 level, oral work is relevant in particular for GCSE English or English Language, and for GCSE Modern Languages where the student is taking them - 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 may well 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 often access arrangements approved by the examining board will not be required, though they may sometimes be needed for 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 in how they support students consistently with the criteria set by exam boards, and of course - if access arrangements are required in the particular case - 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 - e.g. 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. Do bear in mind though that the competence standards themselves, ie. what is assessed, are also subject to the Equality Act. E.g. if 'fluency' is a skill being assessed, it may simply not be lawful to assess that. And if for example oral persuasiveness were being assessed, there would be questions of whether it is proportionate (under the 'objective justification' test) and reasonable to insist that the assessment must be of 'oral' skills - that speech (or speech only) be used. For the Equality Act duties, see below Duties on exam boards.

Stammering: Exemptions

Seeking exemption from a speaking component because of a stammer is not normally likely to be advisable: see GCSE oral components (link to BSA website), 2009. 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.

What do the 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 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

Range of duties

In the absence of specifications (see below Wider reasonable adjustment duty), the full range of discrimination claims applies to exam boards, including the full reasonable adjustment duty. This extends both to the application of competence standards and to 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: for more detail, see separate page Examining boards: 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

The rules applying to exam boards are wider than those for other qualifications, in that with exam boards the reasonable adjustment duty (as well as the other Equality Act provisions) can apply to the question of what competence standards are being assessed, as well as to the process of assessing them. That is subject to any 'specifications' by regulators, which can limit the reasonable adjustment duty - but none have yet been made (so far as I know, as at early June 2011), and when made they may in any event not alter this principle. For more, see separate page Examining boards: Reasonable adjustment duty.

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? - though bear in mind that page deals with higher education where, unlike exam boads, the reasonable adjustment duty does not apply to the competence standards themselves. To put this in context, remember that even where the reasonable adjustment duty does not apply to what competence standards are assessed (as is the case with higher education for example, or if specifications to that effect are made for exam boards), the other provisions of the Equality Act still apply to this. On exam boards and stammering, see above Stammering specifically: Competence standards are also subject to the Equality Act.

Code of Practice

A Code of Practice covering exam boards for the Equality Act 2010 is not yet available. 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 the argument is 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:
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'.
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)