The Data Protection Act 1998 (DPA) gives individuals control over the collection and use of their personal data. Collecting information about an individual’s competences and performance is very likely to be personal information.
Colleges and universities are therefore under an obligation to ensure that the processing of assessment data is done in compliance with the DPA. This means making sure learners are aware of the collection of information about them, the processing of that information and ensuring that the information is kept securely and is only released in accordance with the DPA.
There are likely to be very few circumstances where the release of a student’s grade to other students (or indeed, to the world at large) is justifiable under the DPA. For this to happen, the student would need to give his or her consent, or there would need to be a strong argument that the release was necessary for the purposes of learning and assessment.
When a student asks if he can get his friend’s grade, the lecturer should decline to provide this information unless certain that the friend has given permission in some way.
Common questions relate to the release of a student’s grades to parents and to an employer or other sponsor. Where a parent asks for details of a student’s performance, this should not be released unless the student has given prior permission.
There is no legal right for a parent to access information about a student’s performance, except where the institution is a school under local authority control. Likewise, even where an employer or other sponsor is paying a student’s fees, grades can only be released when the student has consented to this.
An alternative is to give the student the grades in a form that he or she can pass on to the employer or sponsor, which avoids the institution having to seek and record the student’s consent.
Under the Freedom of Information Act 2000 (FOIA) at s.1(1) any person making a request for information held by a public authority is entitled to have it provided to him. Most colleges and universities are public authorities under the FOIA and student coursework held by a university or college would be ‘information held’ which must be disclosed when requested unless an exemption to disclosure applies.
It is likely that where coursework is requested, the institution needs to consider whether the FOIA s.40 exemption for personal data applies.
In order to ensure legal compliance, quality and confidence in the assessment process, other people’s materials should be used with due respect for intellectual property rights. Some assistance comes from s.32 of the Copyright, Designs and Patents Act 1988 (CDPA), as amended, which states that copyright is not infringed by fair dealing with a work for the sole purpose of illustration for instruction including setting examination questions, communicating the questions to students and answering the questions. The term ‘examination’ is not defined in the CDPA, nor have the limits been defined in court. However, it is commonly interpreted, within FE and HE, to mean all formal (summative) assessment.
Care should be taken where a lecturer wishes to make exam papers or other assessment instruments available online afterwards as a learning resource. The s.32 exception does not apply to this which means that the copyright materials will need to be removed or licensed.
The fair dealing exception only allows small, illustrative uses, such as copying and displaying a few bars of musical notation to a class studying musical composition. It does not cover the reprographic copying of a musical score for performance by a student as part of an assessment. A licence or permission from the rightsholder is required for this activity.
Overall, the fair dealing exception in s.32 is a powerful tool for the inclusion of portions of other people’s text, images, videos, recordings and other works as part of summative assessment.
Further detailed information on using other people's materials is available in our guide to copyright law.
As well as damage to reputation and confidence in the institution, there may be liability in negligence (part of the law of tort in England, Wales and Northern Ireland, and delict in Scotland) where technology fails or goes wrong. The law imposes on colleges and universities a duty of care where a lapse would be likely to cause damage or loss.
Where an assessment is poorly planned, managed or delivered, the institution may be subject to a claim from students affected. It should be noted that the standard of care required is that of a reasonable person in the same circumstances.
Where an assessment goes wrong, as long as reasonable precautions have been taken to prevent disruption, the institutions will not be liable in negligence.
Typical precautions which should be considered in the case of technology-mediated assessment might include checking to make sure there are no infrastructure problems (a planned power or network outage, for example), that the technology to be used has been tested appropriately and that sufficient technical assistance is on-hand. It may be appropriate to have a back-up plan in the event a problem arises.
Cheating in technology-based assessments
Where a student attempts to hack into a technology-based assessment they are almost certain to be in breach of the institution’s acceptable use of IT policy, and its student disciplinary code. In addition to this, the student may have committed an offence under the Computer Misuse Act 1990, which prohibits unauthorised access to a computer system.
By virtue of the Equality Act 2010, colleges and universities are under a duty to consider the needs of users with disabilities in their educational provision. This includes the delivery of assessments. There are two parts to this duty:
- The duty not to discriminate in the provision of educational services (s.91)
- The duty to make reasonable adjustments for disabled people (s.20)
Accessibility should be taken into account during the design of an assessment. It is necessary to consider whether any parts of the assessment are likely to cause issues and whether the technology to be used allows for reasonable adjustments.
With regard to the level of attainment used to determine whether a student has reached a particular level of ability or competency, there is no duty to make reasonable adjustments to the competence standard itself, as it is excepted from the s20(3) duty by virtue of Schedule 13 (4)(2) of the Equality Act 2010.
There is however a duty to make reasonable adjustments to the process of how the competence standard is assessed. Institutions should first consider carefully what is actually being assessed, and then make any reasonable adjustments that do not compromise the relevant competence standard being sought.
Any assessment process should take place in a way which does not put students with disabilities at substantial disadvantage. For example, providing different assessment methods allows a disabled student to choose the method best suited to their disability. The institution must provide assessments where students have the opportunity to demonstrate their competence in that particular subject.
This might include offering flexibility with the time provided to complete assessments, permitting an exam to be completed at another more appropriate location or changing the format of submissions.
Further guidance on assessments and competence standards is available in the Equality and Human Rights Commision's Technical Guidance on Further and Higher Education at paras 7.33 – 7.38.
Further information is available in our equality, disability and the law guide.
In legal terms, there is no right to object to any particular form or medium of assessment. A student might argue that an institution is bound contractually to deliver the course as described at the time of enrolment, including specification of the forms of assessment to be used.
However, institutions are likely to include a notice that the right to alter details of the course is reserved, and in any case, a statement of the forms of assessment to be used is unlikely to be held to be a contractual undertaking.
Students do have a right, by virtue of s.12 of the DPA, to give notice in writing to prevent automated decision-taking, based on their personal data. Although this would not prevent automated assessment delivery, it would prevent any automated calculation of grade, and progression decisions – these would have t be processed manually.
ICT may be a beneficial tool for assessment, and procedures and practices should be in place in your institution to ensure that the legal issues do not become a barrier to the adoption and use of appropriate technologies.
This guidance provides a broad outline of some of the issues involved in the use of ICT in assessment, and the steps you can take to minimise risk and uncertainty.
- The Equality Challenge Unit has guidance, projects and resources aimed specifically at staff and students in UK higher education, and in further education in Scotland
- Read the Equality and Human Rights Commision's Technical Guidance on Further and Higher Education.