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GCSE, A-levels and stammering/stuttering

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Last updated 4th January 2020.

This page outlines the Equality Act 2010 rules covering GCSEs, A-levels and the like.

Summary

Access arrangements in practice

Before dealing with the legal position under the Equality Act, I should say something about exam board practice on access arrangements, since this is very important. Also schools sometimes have leeway to make adjustments outside of formal access arrangements. What I say here should be approached with even more caution than usual, as practicalities of access arrangments and exams are not something I know that much about.

‘Access arrangements’

‘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 affecting the integrity of the assessment. The JCQ (an umbrella organisation of exam boards, see below) says access arrangements are the principal way in which exam bodies comply with the duty under the Equality Act 2010 to make ‘reasonable adjustments’ (page 2 Access Arrangements and Reasonable Adjustments 2019-20 (jcq.org.uk)).

Exam board practice

In the context of stammering, the following list of general points is probably most relevant for Modern Foreign Languages. See below for particular points on GCSE English ‘Spoken Language’ and drama/theatrical studies.

  • It is advisable to make enquiries into access arrangments at the beginning of year 10, or Year 12 for Sixth Formers (if not before).
  • The SENCO or examination officer will often need to apply for access arrangements well in advance of the exam.
  • A common adjustment for stammering is likely to be 25% extra time for oral exams (see eg para 5.2.3 in Access Arrangements and Reasonable Adjustments 2019-20 (jcq.org.uk), or perhaps longer if there is appropriate evidence of need in the individual case.
  • The exam board will expect the exam adjustments (eg extra time for orals) to have been the “normal way of working” for that child on oral tasks in school for some time. See eg from para 4.2.5 in Access Arrangements and Reasonable Adjustments 2019-20 (jcq.org.uk). Accordingly access arrangements being considered should actually be used on the course in school, which is a reason to consider them early.
  • It may help that the child is being supported within the SEN framework, with any access arrangments being included in the pupil’s ‘plan’ to build up skills.
  • The Joint Council for Qualifications (JCQ), linked above, is not ‘the government’ but a membership organisation formed by the largest Ofqual-approved exam bodies (below). There are likely to be some differences between how different exam boards apply access arrangements.

Example: A pupil who stammers is granted 25% extra time in a French GCSE oral exam. There is appropriate evidence of need, confirmation of the stammer from a speech and language therapist, and this has been the pupil’s “normal way of working” in the school.

I would say that requirements such as these from exam boards do not necessarily comply with the Equality Act. However I am not aware of any court cases on this so far. Exam boards are obliged, essentially, to make reasonable adjustments (below). For example, one might argue it is reasonable to make an adjustment even if it is not the pupil’s normal way of working. Also a particular time limit or evidence requirement might be argued to be inconsistent with the Equality Act duty. In practice people will aim to comply with exam boards’ published guidelines. However it is worth bearing in mind that if that really doesn’t work, there may be legal scope to challenge them.

See also old page on ‘Access Arrangements’ on BSA’s Expert Parent website, from 2009 so it will be out of date in some respects. An important point made there is that it is not generally advisable for a child who stammers to be exempted from the oral component of GCSE English (below) or Modern Foreign Languages. The focus should generally be on arrangements to enable the student to take the component.

Less formal arrangements within the school

Schools will have some flexibility allowed by exam boards even without having to apply for ‘access arrangements’. For example, if the oral exam for Modern Foreign Languages is to be conducted by a subject tutor from the school, who may not necessarily know the pupil, this could be changed to a subject tutor known to the pupil to ensure a more relaxed atmosphere.

That and other informal arrangements may also be helpful for GCSE English ‘Spoken Language’ (below).

More generally, long-term preparation for a student can be very helpful.

Schools themselves have obligations under the Equality Act, not just exam boards.

GCSE English ‘Spoken Language’

The GCSE English ‘Spoken Language’ endorsement is, as I understand it, assessed by the school, and given a separate mark which does not contribute to the GCSE grade. Normal procedures for access arrangements may not apply – check with the school on that. However the assessment should still be subject to Equality Act requirements, including the making of reasonable adjustments.

On the possibility of exemption from this component, 2016 guidance from BSA (no longer online) said:

“We know that occasionally schools have been encouraging pupils who stammer to be exempted from the speaking and listening component. This is a decision for the pupil, ideally after taking advice from a therapist, but in most circumstances we know that pupils who stammer can communicate effectively and perform well in the oral assessment.”

See also this old page on ‘Access Arrangements’ on BSA’s Expert Parent website (from 2009 so it will be out of date in some respects) saying that exemption is not normally advisable.

Drama/theatrical studies at GCSE or A-level

An exam board may well say it is not possible to get access arrangements for the performance module as regards stammering. This will be a concern if the stammer is sufficiently severe to affect the overall mark for a performance. The exam board may insist that adjustments would compromise the competence standards being assessed (see third paragraph below on legal arguments). However students with a sufficiently severe stammer have sometimes been exempted from the performance section of the course.

If a stammer is likely to significantly affect the mark for performance, the syllabus may offer an alternative component or roles, such as stagecraft. It is best to consider these issues before starting the course.

If the person who stammers does the performance module, it might be argued for example that it is reasonable for any assessors viewing a video to be told that the particular performer has a stammer (as spectators in a public performance might be) – or the fact that a character has a stammer might be an aspect of the play.

As regards an exam board’s refusal to adapt the performance module, legally there could be unlawful discrimination if the exam board cannot objectively justify as proportionate the competence standards being assessed which disadvantage the student who stammers. Also, as discussed below, since the Equality Act 2010 even competence standards are not exempted from the reasonable adjustment duty for GCSEs and A-levels. It should be relevant that it is not a professional exam.

Note: Some of this section draws on BSA guidance published in 2016, which is no longer online.

What qualifications do these rules apply to?

The Equality Act 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:

These rules do not apply to National Curriculum Assessments, but there is guidance on access arrangements for them. Eg try an online search for key stage 2 access arrangements.

Equality Act duties on exam boards

Under ss.96-97 EqA the full range of discrimination claims applies to exam boards as regards GCSEs, A-levels and such like. Though the reasonable duty is the best known type of claim here, claims are not limited to that. Also competence standards themselves (below) are subject to the Equality Act, not just how they are assessed.

Types of discrimination claim can therefore include:

  • Reasonable adjustment duty (below), subject to limited exceptions called ‘specifications’ (below). Unlike other Equality Act rules on exams, competence standards (below) are not excluded from the reasonable adjustment duty for GCSEs, A-levels and the like.
  • Indirect discrimination: broadly where a provision, criterion or practice is applied generally, but puts people with a disability at a particular disadvantage. An example would be a particular competence standard or assessment objective in an exam, or the way exams are conducted. For this to be lawful, the exam board must be able to show objective justification, ie that the provision etc is a proportionate means of achieving a legitimate aim. The details are 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. An example might be receiving a lower mark because of something related to the stammer. Again it is not unlawful if the exam board shows objective justification. The knowledge requirement means that the exam board would probably need to have been told of the disability.
  • Other types of claim are ‘direct discrimination’ for which there is no objective justification defence; harassment; and victimisation. More on types of claim.

Reasonable adjustment duty

The normal three limbs of the reasonable adjustment duty in s.20(3)-(5) EqA apply to exam bodies, with minor modifications. The most important limb for stammering will generally be the first – ie where a criterion or practice such as a time limit for an oral exam puts the pupil at a disadvantage compared with pupils who do not stammer.

In more detail, the reasonable adjustment duties are:

  • where a provision, criterion or practice applied by or on behalf of the exam body puts an interested disabled person at a substantial (ie more than minor or trivial) disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage;
  • where an interested disabled person would, but for the provision of an auxiliary aid or service, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid;
  • a duty to make reasonable adjustments to physical features of a premises occupied by the body. I don’t give details of this as it will not normally be relevant for stammering.

The reasonable adjustment duty for GCSEs, A-levels and the like is in EqA s.96(6) and EqA Schedule 13 para 9, which apply Sch 13 para 3 and 4(1), and s.20. As regards “relevant matter” and “interested disabled person”:

  • for the relevant matter of “deciding on whom a qualification is conferred” (Sch 13 para (d)) the interested disabled person is “A [disabled] person who is, or has notified [the exam board] that the person may be, an applicant for the conferment of the qualification” (Sch 13 para 4(1)); and
  • for the relevant matter of “a qualification that [the exam board] confers” (Sch 13 para (e)) the interested disabled person is “An applicant for the conferment by [the exam board] of the qualification” if disabled, or “A [disabled] person on whom [the exam board] confers the qualification” (Sch 13 para 4(1)).

Subject to the ‘specifications’ below, competence standards themselves (see below) are also subject to the reasonable adjustment duty, not just how they are assessed.

‘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, Scotland and (probably) Wales have each issued specifications:

Some general specifications may be relevant to stammering, including on being exempted from an exam component, and grade boundaries and pass marks not being altered. However seeking exemption from a speaking component because of a stammer is not usually likely to be advisable, as discussed above: for example GCSE English Spoken Language. A possible exception is drama/theatrical studies if the stammer is severe and a performance component cannot be substituted for something else.

Of course the fact than a particular adjustment is not exempted in the specification does not mean it must be made. For adjustments not in the specification, the normal test of whether it is a reasonable adjustment will apply.

Specifications provide exemptions from the exam board’s duty to make reasonable adjustments, but not from 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.

Competence standards are also subject to the Equality Act

What adjustments can be reasonably made is potentially constrained by the knowledge and skills (competence standards) being tested. For example, ability to speak a language cannot be tested in writing. However this assumes the competence standards themselves are lawful. These competence standards, ie. what is being assessed, are also subject to the Equality Act:

Example: Assessing ‘fluency’

If ‘fluency’ is a skill being assessed, that will be unlawful if it amounts to direct discrimination. Otherwise it will 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.

What competence standards are being assessed (as opposed to just how they are assessed) could be challenged as being unlawful ‘indirect discrimination’ or ‘discrimination arising from disability’ (above Duties on exam boards). The exam board would have a defence if it can show objective justification, ie that the provision etc is a proportionate means of achieving a legitimate aim. It would be important whether the aim can be achieved in a less discriminatory way. Also exclusionary effects on disabled pupils would be part of a balancing exercise.

What competence standards are being assessed (as opposed to just how they are assessed) can also be challenged through the reasonable adjustment duty on exam boards, subject to the ‘specifications’ above. That is unlike the rules for university exams and professional bodies. It is also unlike the rules for exam bodies themselves which exisited before the Equality Act 2010. According to the Explanatory Notes to EqA 2010 s.96, before 2010 there was some confusion as to what was a competence standard, so the exemption of comptence standards was replaced by the power to make ‘specifications’, which could be clearer.

How important it is that competence standards are not excluded from the reasonable adjustment duty is unclear, given that in any event there are other types of claim against competence standards (above). However it does mean that on a claim for reasonable adjustments the focus should be on reasonableness rather than whether something is technically a competence standard. The legal reasoning for competence standards not being excluded from the reasonable adjustment duty is that EqA Schedule 13 para 9 does not apply Sch 13 para 4(2) to general qualifications bodies.

JCQ guidance acknowledges that this is the legal position (apart from vocational qualifications within s.53 EqA), though JCQ takes the view that adjustments to assessment objectives will not usually be reasonable:

“In most cases it will not be reasonable for adjustments to be made to assessment objectives within a qualification. To do so would likely undermine the effectiveness of the qualification in providing a reliable indication of the knowledge, skills and understanding of the candidate. There is no duty to make adjustments which the qualifications regulators have specified should not be made. As set out in Chapter 2, page 9, there is no duty to make adjustments to competence standards within vocational qualifications…”
Page 3 Access Arrangements and Reasonable Adjustments 2019-20 (jcq.org.uk).

This guidance can be seen as the view of the exam boards, which JCQ represents. It is not legally authoritative on the interpretation of the Equality Act. In view of the legislative history outlined in the Explanatory Notes above I suggest one should not get too hung up on what is a ‘competence standard’ or ‘assessment objective’. The second sentence of the quote draws on EqA s.96(8)(b) under which “the need to secure that the qualification gives a reliable indication of the knowledge, skills and understanding of a person upon whom it is conferred” is one of the factors to which regulators should have regard when making ‘specifications’. However the legislation does not set this as a legal boundary to what the courts can decide is reasonable or objectively justified; that boundary (applicable only to reasonable adjustments) is set by ‘specifications’. I suggest the court may see s.96(8)(b) as an important factor which the court in reaching its decision should weigh with other factors, including minimising disadvantage to disabled persons. One factor may be outweighed by others (on objective justification see stage 4 of the structured test). The exemption of competence standards from the reasonable adjustment duty has been repealed (Explanatory Notes above) and, I suggest, should not be re-introduced by the back door. I would say this is not contradicted by it saying “the need to secure …”: that wording is directed at regulators rather than the courts, and in any event the public sector equality duty requires public bodies to have due regard to “the need to” advance equality of opportunity etc but it is well established that this is not a duty to advance equality of opportunity, only a duty to take it into account. The full list of factors for regulators in EqA s.96(8), which a court also may see as relevant to its decision without being limited to them, is:

  • the need to minimise the extent to which disabled persons are disadvantaged in attaining the qualification because of their disabilities (a particular requirement of case law on objective justification);
  • the need to secure that the qualification gives a reliable indication of the knowledge, skills and understanding of a person upon whom it is conferred (discussed above); and
  • the need to maintain public confidence in the qualification.

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.

Code of Practice 2008

There is no Equality Act Code of Practice or EHRC technical guidance covering GCSEs, A-levels and the like. However, so far as I know, the 2008 Code linked below has not been revoked and so continues in force under para 3(2) of SI 2010/1736, even for discrimination after October 2010. Whether or not it remains in force as a statutory Code, it seems likely that courts would still be willing to look at it, in the absence of newer guidance. Of course the Code is not updated for changes in Equality Act 2010.

An example from the Code on responsibility for actions of employees specifically mentions a speech impediment:

“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.

There are further examples from the 2008 Code relating to speech on my page about professional exams.

Disputes

Nearly always, any issues will be sorted out with or through the school. If it is argued that the exam board (rather than the school) has breached the Equality Act as regards GCSEs, A-levels and the like, 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.

Links

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