Bruce Adamson, Scotland’s children’s commissioner, has written to the education secretary, urging her to act over his ongoing concern that qualifications appeals processes during the Covid pandemic breached students’ human rights, reports Emma Seith.
Mr Adamson has long been campaigning for the Scottish government to allow a small number of students from the 2020 cohort to appeal directly to the Scottish Qualifications Authority (SQA), arguing that these young people have been left “with no right of appeal, challenge or remedy”, including those who disagreed with their teacher’s estimated grade.
Now, Tes Scotland can reveal that - in his letter to education secretary Shirley-Anne Somerville - Mr Adamson is also raising concerns about the “very significant drop in appeals” following the 2021 results and the “unjustifiable narrowness of the appeal grounds” in 2021 when it came to discrimination.
Earlier this week the SQA revealed that, following the 2021 results, it received 3,483 requests for appeal. A total of 57 requests (1.6 per cent) resulted in a grade change: 44 upgrades and 13 downgrades.
The SQA also said there were 15 appeals on the grounds of discrimination still under consideration that were not included in the figures.
In his letter, Mr Adamson says: “I am...concerned to see SQA’s published statistics on appeals released on 7 December which show a very significant drop in appeals, a drop in entrants being upgraded and a rise in entrants being downgraded.”
Mr Adamson highlights that there were 11,528 appeals in 2019 (2.3 per cent of entries) compared to the 3,483 in 2021 (0.67 per cent of entries).
He also points out in 2019, 1683 entrants were marked up (14.6 per cent of appeals) compared to 44 (1.26 per cent of appeals) in 2021. And in 2019 only two entrants were marked down (0.017 per cent) compared to 13 (0.37 per cent) in 2021.
Mr Adamson - who argued that appeals should have been operated on a “no detriment” basis in 2021, in case the prospect of being downgraded put candidates off appealing - writes: “I have...made clear my view that a failure to ensure that appeals operate on a ‘no detriment’ policy would have the effect of artificially limiting the number of appeals made.”
However, he also highlights “the unjustifiable narrowness of the appeal grounds” for the 2021 results, “most significantly” when it came to discrimination.
He writes: “To my great disappointment, we are also still awaiting a response on a number of issues my staff raised with your officials on 24 August in relation to the 2021 appeals process and the unjustifiable narrowness of the appeal grounds.”
To appeal on the grounds of discrimination, the SQA said that the candidate’s school or college had to acknowledge it had breached the Equality Act 2010 or that the young person had to raise a complaint or legal action and take it to a successful conclusion before the appeal deadline.
But in his letter, Mr Adamson says that a school is unlikely to admit to a breach “given the potential consequences for the school” and that legal action was “impossible in the timescale allowed”.
He adds that “even if the delays still plaguing the legal system could be overcome, having the matter determined by a court also involves a significant financial barrier”.
He also says that the information provided by the SQA to candidates when setting out the grounds for appeal was inaccurate.
The SQA said an appeal on the grounds of discrimination could be made if a breach of the Equality Act 2010 had been “established by a court or the Scottish Public Services Ombudsman (SPSO)” but Mr Adamson says that the SPSO “has no power to establish whether or not the Equality Act 2010 has been breached”.
He adds: “I understand that when the ombudsman became aware that she was cited in the appeal ground her office informed SQA that this is not within the scope of their powers. However, SQA has declined requests to alter the information on the website or reconsider the terms of the appeal grounds.”
Ultimately, Mr Adamson calls for Ms Somerville to require “the SQA to allow the small number of young people in the 2020 cohort to appeal directly and on the basis of the limited additional grounds my office has suggested, and to amend the 2021 appeal grounds to ensure they provide a remedy for children and young people who may have experienced discrimination”.
A Scottish government spokesman said: ”
SG Spokesperson said: “As announced in June, after careful consideration, the Education Secretary concluded that there was no way to reopen 2020 appeals in a way that was fair to all learners.
“SQA has published all required Equality Impact Assessments in relation to the delivery of national qualifications in 2020 and 2021 and we welcome its action plan to further embed equality across its activities, improving its processes and practice.”
Discrimination was a ground for appeal in both 2020 and 2021. In 2020, 97 appeals were made on the grounds of discrimination and 55 of these were upgraded.
In 2021, 188 appeals were made on the grounds of discrimination. Of those, 12 were upgraded and 15 are still in progress.
