Potential Legal Challenge to Common Entrance Assessment Testing
KRW LAW LLP (KRW) is instructed by seven clients who have children who are due to sit the Common Entrance Assessment (CEA) for transfer of pupils from primary to a number of post primary schools in Northern Ireland managed and administered by AQE Limited (AQE). The first assessment date is 9 January 2021.
As a matter of urgency, our clients request a risk assessment that has been created for the sitting of the CEA at those centres. This is to determine whether sufficient measures have been taken to ensure the safety of those taking the test given the ongoing Covid-19 pandemic.
KRW have requested these risk assessments previously but they have not been provided. We do not see any basis upon which those risk assessments should not be provided in advance of the first assessment on 9 January 2021.
This is even more so given the recent discovery of the more virulent strain of Covid-19 as parents, particularly those with any increased risk factors, are entitled to see whether additional steps have been taken in response to the increased risk of transmission that the new variant poses.
As a result KRW has requested these risk assessment by 4 pm 4 January 2020. Should AQE fail to comply with this request we shall seek a private law challenge to AQE, a private company that operates and organises the AQE transfer test, for how those assessment centres comply with the current Covid-19 Regulations and also how AQE will manage the Health & Safety issues that arise in the holding of the test.
We attach the pre-action letter sent by KRW to AQE:
To: AQE Limited
4 January 2021
Dear Sir or Madam
URGENT: Request for risk assessments for transfer test centres
We write on behalf of seven clients who have children who are due to sit the Common Entrance Assessment (CEA) for transfer of pupils from primary to a number of post primary schools in Northern Ireland managed and administered by AQE. As you know the first assessment date is 9 January 2021. The two further assessment dates are 16 and 23 January 2021.
The children of our clients are sitting the CEA at the following assessment centres: Belfast Royal Academy; Coleraine Grammar School; Strathearn Grammar; Sullivan Upper; Weavers Court and Victoria College. As a matter of urgency, our clients request the risk assessment that has been created for the sitting of the CEA at those centres. This is to determine whether sufficient measures have been taken to ensure the safety of those taking the test given the ongoing Covid-19 pandemic.
We have previously corresponded with you on this point. In your email of 22 December 2020 you stated: “AQE Member Schools are responsible for organising the Common Entrance Assessment in their own centres. Please contact the school directly with your request”. That indicates that AQE consider that they have no role in the organisation or operation of how the assessments are held in the individual assessment centres. However, we would refer you to paragraph nine of your document titled “AQE Update 1st January 2021”. That paragraph states:
“The health and wellbeing of the candidates and staff are AQE Limited’s first priorities during the pandemic and we want to reassure parents and candidates that AQE Limited, in conjunction with our Member Schools, will follow all relevant and current health and safety guidance from the PHA/DE and all of our centres will be required to risk assess the hosting of the CEA.”
Plainly, that paragraph written by AQE indicates that AQE have some responsibility for the health and safety of those taking the assessments.
We would remind you that Regulation 5 of The Health Protection (Coronavirus, Restrictions) (No. 2) Regulations (Northern Ireland) 2020, as amended by The Health Protection (Coronavirus, Restrictions) (No. 2) (Amendment No. 24) Regulations (Northern Ireland) 2020 on 24 December 2020 mandates that an indoor gathering or more than fifteen persons is permitted for educational activity provided that:
“the person responsible for organising or operating the gathering—
(a) has carried out a risk assessment which meets the requirements of the Management of Health and Safety at Work Regulations (Northern Ireland) 2006, whether or not that person is subject to those Regulations;
(b) takes all reasonable measures to limit the risk of transmission of the coronavirus, including implementing the preventive and protective measures identified in the risk assessment undertaken in accordance with sub-paragraph (a) and complying with any relevant guidance issued by a Northern Ireland Department
…”
It is therefore a legal obligation on AQE to ensure that relevant measures have been taken and that a risk assessment is in place. If those requirements have not been met for any given centre then the CEA cannot lawfully be held in that centre.
The parents of the children who will attend for the CEA are entitled to see the risk assessment and the steps that have been put in place to mitigate against the risk of Covid. We have requested these risk assessments previously but they have not been provided. We do not see any basis upon which those risk assessments should not be provided in advance of the first assessment on 9 January 2021. This is even more so given the recent discovery of the more virulent strain of Covid-19 as parents, particularly those with any increased risk factors, are entitled to see whether additional steps have been taken in response to the increased risk of transmission that the new variant poses.
As a result, we look forward to receiving the risk assessments for those six assessments centres from you as a matter of urgency. If you do not provide those risk assessments before 4pm on Monday 4 January (given the short period of time between now and the date of the first assessment) then we will have no alternative but to bring an application to the Court to require the release of the risk assessments.
We have sent a copy of this letter to the assessment centres and also the Health and Safety Executive.
Yours faithfully
KRW LAW LLP