Unhappy with your grades during the COVID-19 pandemic? A guide to your rights

Solicitor Tanya Thomas, an expert in university and higher education law and regulations, reveals what students need to know during the COVID-19 coronavirus pandemic.

(For information regarding GCSE and A-level exams, please refer to the final section of this blog.)

While Britain currently remains under lockdown, this situation will not last forever, and some college and university students may already be thinking about what impact this unprecedented global event might have upon their academic achievements and future careers.

First and foremostly, students should talk to their respective universities and colleges via the usual channels, i.e. through lecturers, course leaders, personal tutors and formal student support staff. There is likely to be a great deal of goodwill and support available to students as they get to grips with the practicalities of remote learning and assessments.

However, it is possible that despite your educational establishment’s best efforts, you feel you have been academically disadvantaged by the coronavirus. In such an instance, you do have rights and could secure a grade that better reflects your true academic ability.

What are universities and colleges legally required to do if students have concerns over grades?

Universities and colleges are required to consider mitigating, extenuating and special circumstances. Each university will have its own definition of what these are, but in most cases, they will include events that were:

  • Severe
  • Unforeseen
  • Close in time to the work (assessment or study period); and
  • Had an impact upon you and your academic performance

Mitigating circumstances appeals are available to:

  • Any student, even if they have used the procedure previously
  • Any student who has already disclosed a disability to the university and where there has been a worsening of a fluctuating condition

The Equality Act 2010 defines disability as: “a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities”.

If a mitigating circumstances application is successful, the university or college is required to provide ‘academic remedies’, such as providing further assessment attempts or changing how final grades are calculated.

Why might I need to submit a mitigating circumstances application during the COVID-19 pandemic?

  1. You have a disability, such as anxiety, but it has worsened due to the pandemic.
  2. Something unexpected has happened, such as you contracting coronavirus or suffering a bereavement, which has had an impact on your academic achievements.
  3. Due to the pandemic, you are unable to gain access to specialised equipment (e.g. a science lab or music studio), and this has had a significant impact on your studies.
  4. You have dependent children who are normally in nursery or school whilst you are at university. You are now caring for your children fulltime because nurseries and schools have closed, which is having an impact upon your ability to study.

The objective of submitting a mitigating circumstances application is to obtain the ‘academic remedy’, in other words, something which will more fairly reflect your academic ability. You should check your university’s regulations to see what remedies would be available.

Applications must be submitted before a published deadline. Late applications are rarely allowed.

My university has offered a blanket solution for my cohort, e.g. they are adjusting the pass mark required by all students, but I do not believe this is fair. What are my options?

This would also fall under a mitigating circumstances application.

What if my application for mitigating circumstances is unsuccessful?

In such instances, you should be able to appeal. In many cases, applications are not successful because of a lack of submitted evidence.

What if my application for mitigating circumstances is not permitted or I am told such applications are not being accepted during the pandemic?

This is unlikely to be legally acceptable, and you might have the right to complain.

How do I complain, and what will it achieve?

Each university will have its own complaints procedure. Broadly speaking these procedures enable you to obtain a ‘non-academic’ outcome, for example, a partial refund of your fees, financial compensation or some other practical solution.

There are strict deadlines, and you should ensure that your complaint is submitted in time. Most complaint procedures have 3 stages: informal, formal and a review stage. Most complaints can be settled at the informal stage; however, a minority will need to be escalated. Once the review stage is complete, and if you remain dissatisfied with the outcome, you can submit a complaint to the Office of the Independent Adjudicator for Higher Education (OIA). The OIA is an independent body set up to review student complaints. Most universities are members the OIA’s scheme.

The OIA has published a briefing note on potential complaints arising from the COVID-19 disruption:

https://www.oiahe.org.uk/resources-and-publications/latest-news-and-updates/oia-briefing-note-complaints-arising-from-coronavirus-covid-19-disruption/

You may find it helpful to see how the OIA might view your situation before submitting a complaint.

I had already been told I could resit exams in August, but have now been informed I need to repeat the entire year because of the COVID-19 pandemic. What action can I take?

We would advise you to submit an appeal and consider making a complaint. The impact of the pandemic is unprecedented in education and what is considered fair is still being established.

How can Setfords help?

We can provide guidance on how to navigate college and university procedures in order to achieve the best possible outcome. We can also help identify what evidence is needed to support your application, complaint or appeal, and write submissions on your behalf.

Information for GCSE and A-level students

Those taking GCSEs and A-levels are much more likely to come under their local authority’s rules and regulations, and we would advise you to refer to the following websites for further information.

https://www.gov.uk/government/publications/coronavirus-covid-19-cancellation-of-gcses-as-and-s-in-2020

https://www.qualificationswales.org/english/coronavirus—covid-19/

This note is not intended to substitute legal advice from your instructed lawyer. You should always consult with your lawyer directly regarding any specific queries you may have.

Tanya Thomas

Consultant Solicitor Education Law
DDI: 02921 921 535 / T: 0330 058 4012 / ext.1002
E: tthomas@setfords.co.uk