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.
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 proportionate means of achieving a legitimate aim. This is the objective justification test – follow that link for more detail on it. It is not enough that the aim is legitimate. For example, there is a balancing exercise as to whether the aim outweighs the discriminatory effects. 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). The main relevance of specifications in the context of stammering is in limiting one’s ability to be exempted from a component (which is generally not advisable anyway).
Generally, the normal types of discrimination, including harassment and victimisation, are unlawful. See below Duties on exam boards.
‘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.
(By way of a technical note, the extent to which reasonable adjustments can be made to exemptions is subject to limitations, contained in ‘Specifications’.)
Examples from Revised Code of Practice on General Qualifications Bodies
On the status of this pre-Equality Act Code of Practice, see below Codes of Practice.
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.”
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…”
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:
These rules do not apply to National Curriculum Assessments. See on those National curriculum assessments: Access arrangements (link to qcda.gov.uk).
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 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.
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, Wales and Scotland have each issued specifications:
- England, issued by Ofqual: www.ofqual.gov.uk/for-awarding-organisations/96-articles/824-specifications-in-relation-to-the-reasonable-adjustment-of-general-qualificationsc – took effect on 1st January 2012
- Wales, available at wales.gov.uk – these mostly came into effect on 1st April 2012.
- Scotland, issued by the SQA, available at www.sqa.org.uk/sqa/64698.html, took effect in August 2013.
Some general specifications may be relevant to stammering, including limitations on when a candidate should be exempted from an exam component; and grade boundaries and pass marks not being altered. 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.
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.
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 seems to remain 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).
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.
See also Understanding access arrangements and special consideration (link to Ofqual website), including the heading ‘If my application is refused, what can I do?’
- 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.
- BSA’s education page – including contact details for British Stammering Association’s education helpline 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)
- Fair Access by Design (pdf, link to ofqual.gov.uk) provides guidance on how both vocational and general qualifications can be designed to give all learners the fairest possible opportunities to show what they know, understand and can do. See also below on this page Designing for accessibility.
- Exemptions guidance (link to ofqual.gov.uk) issued March 2010 – guidance issued by Ofqual, CCEA and DCELLS which is taken into account by JCQ in setting its guidance on access arrangments (above) so far as they relate to exemptions. However, on stammering and exemption from speaking components, see above Stammering: Exemptions, and also the 2012 Ofqual specifications which place legal restrictions on exemptions in England.
Designing for accessibility
Ofqual’s April 2011 consultation (above) 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).