The Bar Standards Board (BSB) and electronic testing company Pearson VUE have both come under fire from the independent review of last year’s Bar professional training course (BPTC) exams.
While it found the regulator let down students who had ‘reasonable adjustments’ that needed to be made to their conditions for taking the three centralised exams – on professional ethics, criminal litigation and civil litigation – the 62-page report sharply criticised Pearson VUE for not recognising its role in the problems that caused headlines last summer.
The review was carried out by senior legal academic Professor Rebecca Huxley-Binns, assisted by Dr Sarabajaya Kumar.
The exams were postponed from April to August due to Covid-19 and then mainly run remotely, although there was an option to take them at test centres.
But, as we reported extensively last summer, booking difficulties, technology and other problems meant that only three-quarters of the exams were successfully completed amid uproar from students and barristers alike.
The review said the inaccessible way Pearson provided data meant it was “impossible for us to conclude with confidence how many of the examinations were successfully completed without incident”.
The BSB made “the correct decision” to take responsibility from course providers for the examinations and to contract with Pearson VUE to provide them online – however, rolling over an existing 2013 contract for the Bar aptitude test and not making specific provision for the “perfect storm” it faced last summer was a mistake, the review found.
But it was less the choice of the Pearson platform that caused the difficulties; rather, “it was the failure to prioritise students for whom the system was known not to be suitable”.
First, there was a failure to clarify ultimate responsibility for delivery of reasonable adjustments between the BSB, providers and Pearson.
Second, an equality impact assessment was lacking. For example, it did not consider the impact of the decision not to allow breaks on candidates with protected characteristics beyond disability, “for example for people who menstruate”.
The assessment also ignored the fact that issues relating to childcare were more likely to affect women.
The BSB’s general approach to the handling of reasonable adjustment needs “fell short, notwithstanding the unprecedented circumstances of a global pandemic”, the review concluded.
The regulator was so focused on maintaining the integrity of the examinations that accommodating disabled candidates became an ‘either/or’ situation.
“Concerns about ‘downgrading the examinations’ by giving disabled people reasonable adjustments is a false dichotomy. They merely want a level playing field and the opportunity to take their exams like everybody else,” Professor Huxley-Binns wrote.
The problem was compounded by Pearson VUE’s “lack of capacity to deal with students requiring reasonable adjustments”, which the review surmised was caused by insufficient resources. Its booking system was “chaotic”.
The report said: “Pearson VUE realised that their test centre capacity had already been reached in densely populated areas.
“The review received evidence that how places ‘were allocated was opaque to students and pretty unacceptable’. This culminated, for example, in one case where a candidate with reasonable adjustments, who lived in Belfast, had been allocated a sit in London.”
The review recommended that, in future, “the BSB starts from the needs of those candidates who require reasonable adjustments”.
Banning students at home from leaving their desks during the assessments led to graphic tales of urinating in bottles.
The review said: “It was not foreseen that providing no breaks would have the impact that it ultimately had. The BSB clearly expected candidates who could not sit in front of a computer screen for up to three hours to book their examination at a test centre.”
Pearson assured the BSB that it had sufficient test centre capacity – when ultimately it did not because of social distancing requirements – while the BSB “could not foresee the delays many candidates would experience from logging onto the system to being able to start the examination”.
BSB director-general Mark Neale admitted to the review that “the lack of a break clearly did put unnecessary pressure on some students, especially when there were also severe delays in signing in.
“Avoiding the pressure and indignity that resulted would have been worth the extra administration and cost.”
It went on to find that, while Pearson generally blamed technical difficulties on candidates, the evidence often pointed the other way.
Pearson VUE “must have had too few proctors available”, was wrong when it said no issues had arisen at test centres, and did not brief its customer service staff well enough, the review said.
“When we raised these concerns with Pearson VUE, their response was one of surprise and denial. They simply had no idea this had happened, or how. Of more concern to us was their apparent lack of interest in finding out what could have caused the problems…
“It is evident that if the BSB had understood in April 2020 there was a chance that a quarter of candidates would not be able successfully to complete their examinations, they would not have gone ahead with these arrangements.”
The review contained a series of recommendations to deal with the problems identified. The BSB has published a plan to act on them, backed by the review’s authors.
This includes improving its communication and engagement with students and training providers, making the centralised assessments more accessible and inclusive, and introducing a critical incidents policy.
BSB chair Baroness Tessa Blackstone, reiterated its apology to students.
She said: “I am pleased that the report finds that the BSB was right to seek to offer computer-based assessments and right to contract with Pearson VUE to deliver the exams…
“The BSB’s staff worked very hard to implement the new arrangements for the exams but we very much regret that many students had a difficult experience both in booking and sitting the exams…
“I am pleased that the review found no failure of governance. The board is determined to ensure that the BSB learns the lessons for the future.”
In a statement, Pearson VUE said the findings “appropriately bring attention to areas where Pearson VUE did not fully meet the expectations of the BSB or its candidate cohort. Pearson VUE is deeply sorry for any stress and frustration experienced by BSB candidates”.
The pandemic tested its operations and Pearson said “complex arrangements and quick decisions were made by both the BSB and Pearson VUE in difficult circumstances. As a result, aspects of our handling and communications fell short…
“We value the findings presented within the report and are embracing ‘the lessons learned’ to make improvements moving forward.”
Matthew Hill, chief executive of the Legal Service Board, said it was “clear” that the events and decisions covered in this report combined to undermine the statutory objective of promoting a strong and diverse legal profession.
“It is right that the BSB has apologised and published an action plan showing how it will address the report’s recommendations. The BSB and the wider sector must learn from this to ensure we dismantle barriers not create them.
“As the oversight regulator of legal services, we will continue to monitor the BSB’s progress through our regulatory performance framework.”