February 2013 saw judgment delivered in the GCSE judicial review in which three of the four parties were represented by a total of seven members of 11KBW. But away from the headlines, February was a busy month for the education law team at 11KBW and the following is an indication of the type and range of work done.

In the higher education sector, members have been involved in a number of cases involving complaints by students which have taken different forms: internal complaints, complaints to the OIA, contract claims and a challenge by way of judicial review. The greater legal scrutiny being given to the contractual relationship between students and universities is evident with particular questions being asked about the impact of fee caps on such contracts and whether the scope of the duties imposed by one such contract extended to addressing a student’s dyslexia. The cross-over with members’ expertise in employment cases continues to be valuable with advice being sought from a higher education institution on collective redundancy arrangements. The new freedoms given to FE/HE colleges by the Education Act 2011 are also to the fore.

Academies continue to generate legal disputes with a number of members being asked to advise in this area, including questions about the powers of the Secretary of State in relation to “free schools” and the problematic issues that often arise over the sale/transfer of playing fields when a school converts to an Academy. Advice was also sought more generally on central government’s powers to intervene in the education functions of a local authority.

In the field of special educational needs advice has been sought on two forthcoming changes: the new funding arrangements for children with SEN and the draft Inter-authority Recoupment (England) Regulations 2013. In relation to the former advice has also been sought on the pilot scheme for direct payments. Members also continue to be involved in appeals against statements of SEN, often in the most complex and high-value cases where there is a dispute about whether a residential school is needed, as well on appeals to the Upper Tribunal. There are also cases in the disability discrimination field, including a substantive challenge and a case about costs.

Issues which have arisen in the field of admissions include advice sought from selective schools in this regard as well as the question of whether the School Admissions Code enables schools to give priority to children who attend linked nursery provision.

To end where this round-up began, qualifications continue to feature in work done with advice having been sought on the meaning and effect of certain parts of Ofqual’s Qualifications and Credit Framework.

The Department for Education has published new statutory guidance on home to school travel and transport. This 10 page document helpfully summarises the various statutory duties and there is a flowchart of the review and appeal processes.

Rachel Kamm

On Monday 4th March 2013, 11KBW hosted an evening seminar to discuss the provisions in the new Children and Families Bill relating to special educational needs.

The Bill was introduced into Parliament on 4 February and had its second reading on 25 February. Part 3 of the Bill, entitled “Children and Young People in England with Special Educational Needs” will, if enacted, be the first major legislative intervention in the field of special educational needs in England since Part 4 of the Education Act 1996 came into force.

The seminar was chaired by Clive Sheldon QC and the speakers were Jonathan Moffett and Joanne Clement. Jonathan presented a paper on the provisions in the Bill imposing general duties on local authorities, health sector bodies, and other public bodies. Joanne presented a paper on the provisions that will govern how cases of individual children with special educational needs are to be dealt with. The papers are available on the 11KBW website click here.

While the OIA is amenable to judicial review, the courts will generally be very slow to interfere with its decisions, and where an inferior tribunal has made an error of fact, relief by way of judicial review will only be granted if the error is material. Mostyn J identified and applied these principles when dismissing a challenge to the OIA’s decision that the LSE had not been required to publish either the marking scheme or the assessment criteria for an examination which the Claimant had failed.

The LSE’s rules stated that it was required to publish assessment criteria for the course. The Claimant complained, internally, of the failure to publish a “marking scheme”. That complaint was dismissed on internal appeal. He complained to the OIA that the LSE had failed to publish “assessment criteria”. The OIA held that the LSE had not been required to publish “assessment criteria or marking schemes”.

Mostyn J held that there was a clear distinction between the LSE’s marking scheme, which  essentially set out model answers to the examination questions, and its assessment criteria, which were indicators of the standard needed for a student to achieve particular grades in that examination and which did not describe the syllabus or the scope or subject matter of the course.

The OIA had erred in conflating the marking scheme and assessment criteria, and had therefore erred in holding that the LSE was not required by its rules to publish assessment criteria. However, that error was not material, as publication of the assessment criteria could not have made any difference to the Claimant’s performance in his examination.

Further, the OIA was likely to have held, had she appreciated the distinction between the marking scheme and the assessment criteria, that the Claimant had failed to exhaust his internal remedies in relation to publication of assessment criteria, as his internal complaint had concerned the marking scheme.

Accordingly if the OIA was directed to reconsider the complaint, Mostyn J was in no doubt that it would be dismissed.

Accordingly the application for judicial review was dismissed.

R (Burger) v Office of the Independent Adjudicator for Higher Education [2013] EWHC 172 (Admin)

The Divisional Court has dismissed the claims for judicial review of the award of GCSE English qualifications in summer 2012.

Giving judgment after the rolled-up hearing held shortly before Christmas, the Court granted permission to bring judicial review proceedings, stating that the issue had been one of widespread and genuine concern, but rejected the substantive claims.

Members of 11KBW represented the Claimants (Clive Sheldon QC, Joanne Clement and Joseph Barrett) and both of the awarding organisations who were joined as defendants (Clive Lewis QC and Jane Oldham for AQA; Nigel Giffin QC and Christopher Knight for Edexcel).  The other defendant was Ofqual.  Peter Oldham QC of 11KBW advised OCR, another awarding organisation who were named as an interested party.

The Court analysed the decision-making process in detail.  It concluded that the defendants had not given improper weight to statistical material predicting the proportion of candidates who should achieve C grades, and had not fettered their discretion.  With hindsight, the grading of students who took the assessments in January 2012 had been too generous, but that did not require the June 2012 cohort to be treated in the same way.  Ofqual was entitled to take the view that priority should be given to ensuring that standards were consistent year on year, and the awarding organisations could not ignore that.  There were no assurances about grade boundaries remaining constant between assessment dates, nor any consistent past practice, such as to give rise to a legitimate expectation.  Although the difference in treatment between the January and June cohorts required justification, such justification was held to have been clearly established, in circumstances where any unfairness between the January and June cohorts could not be remedied without creating further unfairness elsewhere.  The approach taken by the defendants was one which was properly open to them.

However, the Court rejected the suggestion that the decisions of the awarding organisations were not amenable to judicial review at all.  Nor, on the facts of the case, did the possibility of intervention by Ofqual represent an alternative remedy that should have been pursued in preference to judicial review.

The Court’s judgment contains a discussion of “conspicuous unfairness” as a ground of challenge in judicial review.  It holds that, whilst it is ultimately for the court to decide whether the decision-maker has abused its power by acting in a way which is conspicuously unfair, that does not give the court a wide discretion to substitute its own view of the substantive merits.  Rather, conspicuous unfairness should be seen as a particular form of irrationality.  It may be the best description for a complaint based on a sudden change of policy or inconsistent treatment, but judicial review will lie only if a reasonable body could not fairly have acted as the defendant did.

Finally, an argument based upon the public sector equality duty was also rejected by the Court, on the footing that equality implications could have no bearing upon the assessment of performance and the setting of grade boundaries (as opposed to e.g. fixing curricula and setting examination papers).

Consequential issues, including any application for permission to appeal, have been postponed to a later date.