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A burning question about PAIA
5th Aug 2014 at 9:26 am #3424
Can anyone please advise me?
If a student writes a summative assessment (in the form of an exam) and is unhappy, appeals etc and then asks for access to the script in terms of PAIA, what can he do with that script?
Can he take it and have it assessed by someone outside of the “assessment process”?
This is a real question I am dealing with at the moment
5th Aug 2014 at 2:07 pm #3451
Hi Jacqueline, as far as I know the learner may have access to the exam paper, but the assessor or moderator should be present – not give it to him to be taken elsewhere for assessment. If the learner does not accept the outcome of the appeal, then the last resort is for the appeal to be referred to the relevant ETQA for investigation. Best would be, to refer to the Appeals Procedure.
5th Aug 2014 at 2:23 pm #3450
Celeste Maxime LackayParticipant
5th Aug 2014 at 3:52 pm #3449
5th Aug 2014 at 6:32 pm #3448
I have just gone through all of the process by writing my clients qms outline and yes the student has the right to appeal but at no time does it state that the material may be removed, however you should have an independant person who can then re-asses and provide an independant assesment. if they are still unhappy they can continue up the chain for three levels of appeal which the lasy of course would probably be the SETA
5th Aug 2014 at 9:06 pm #3447
Ok everyone, I don’t think I’ve explained myself properly. We’ve been through the appeal stage, etc, but student says he has a right to have his “script” given to him and to be assessed by someone else that he chooses. He’s claiming his rights under the PAIA Act to get access to his script.
6th Aug 2014 at 6:08 am #3446
6th Aug 2014 at 7:20 am #3445
Everyone’s rights are enshrined in the constitution of the country. PAIA is deeply linked to the constitution, that learner must not abuse the system because Facilitators too have rights.The right to uphold a standard cannot be taken away from Facilitators. The question is: ” Have you deviated from the standard?”, “were all the right procedures followed?”, “Is it stated anywhere in your appeals procedures that independent/external assessors of the learner’s choice will be entertained?”
We cannot go around and throw Acts, Policies and Rights into people’s faces simply because we did not get our way.
Have you seen these self-proclaimed singers who go and audition for IDOLS at a particular venue only to be told that they can’t sing or don’t meet the standard? What do they do? They move to the next venue or just cause a scene there and then because they insist on getting a Golden ticket. You need to meet the STANDARD in order to receive that ticket. Facilitators need to uphold that STANDARD in order to make sure competent learners go to the next level, period.
Let’s look a UNISA”s own PAIA related procedure and then decide if the learner has a case or not.
6th Aug 2014 at 8:14 am #3444
Hi Jacqueline – to the best of my understanding if a learner is unhappy following an appeal against assessment the next step would be directly to the SETA and/or QCTO. I honestly feel the PAIA has nothing to do with this other than the right of the learner to have access to the script. Should the provider refuse to grant access to the script then the regulations related to PAIA come into play.
The purpose of the Act is “To give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith”
If however the appeal process has been exhausted then the learner has a right to have his script returned to him as is the right of any learner. The PAIA does not come into platy here at all it is just the right of the learner.
6th Aug 2014 at 12:51 pm #3443
A portfolio is evidence, therefore you need to keep the evidence as proof of your decisions both for the assessment and for the appeals. Your policy should specify the period a portfolio and other evidence should be kept safe.
Should the learner require the portfolio to submit it to another organisation who runs the same programme, he may only get a copy.
6th Aug 2014 at 3:01 pm #3442
Hi to all – thanks so much for your contributions to an interesting question. In response to Jacqui’s last comment I tend to agree with Magda.
However, first another stone to throw into the mix – I think that both PAJA and PAIA are relevant. PAJA is the promotion of administrative justice and my understanding is that this constitutes administrative action and that includes decisions of the ETQAs, Setas and QCTO.
Secondly, my understanding is that he would have a right to the information under PAIA, as it is information held about him – but not necessarily the original – a copy would be sufficient. (I recall correctly – it is possible to charge for copies.)
6th Aug 2014 at 4:00 pm #3441
H Sylvia – yes in terms of PAIA the student has a right to view any records including an examination script. My main question is with what purpose. This student is challenging her result which we understand and we have given her written feedback and put an appeal in place – neither of which she wants to accept. She wants “her lecturers” to mark her script because she thinks they’ll do a better job than us because it’s “completely impossible” that she failed 3 exams. Just a wee bit of a thorn in my flesh right now. We are talking “old-fashioned written exams” here. Our papers are set by expert practitioners and moderated three times before they go to the students. Marking is carried out by the same examiner and moderated (if the case is a borderline case) which hers were not – they were below the borderline barrier.
6th Aug 2014 at 4:31 pm #3440
Hi Jacqui, understood.
My opinion would be that they are free to seek any advice – including legal advice – of what to do and that you cannot dictate that. They may take it further through the skills development structures of Setas and the QCTO. I suppose that there’s no reason why they couldn’t approach SAQA, and also the DHET to intervene if they feel they are so injured.
However, I would suggest to you from my HR/IR experience – given the situation that you describe, I would suggest that what is needed is an experience mediator. How about convening a meeting chaired by a mediator, including the person concerned, and whoever can explain the substantive content issues and the procedures that lead to the decision – with explanation of what was needed and should have been given.
An experienced mediator would be able to manage the meeting in such a way that it gives support to the individual’s ego – and promotes listening, so that all the parties are able to shake hands and walk away with a sense that they were heard and that they understand the outcome.
My opinion – long held from experience is that sticking to the technicalities of procedures and legal points never provides the most effective resolution – the parties who lose are unconvinced. But by effective mediation the individual egos are supported and people are able to move forward constructively.
On a broader front I have found it interesting that there is so little legal action over the various aspects of skills development and I’ve formed the opinion it’s because so few legal advisers even understand what’s going on in skills development – and skills development people don’t understand PAJA. But there appears to me to be many situations/incidents where action under administration action legislation (PAJA) would be appropriate.
7th Aug 2014 at 4:34 am #3439
Hi Jacqueline Would you mind clearing the fog in my own head before I can think to attempt to respond to your rather difficult question? Given that you seem to have done all that is within the law interns of adhering to applicable procedure, what are your fears if you give the learner, at least, a copy of his script? Are you afraid that whoever marks it may arrive at a different conclusion from yours? if so,whatever different conclusion, what right would that marker have to get into any debate with you about the learner’s work given that the learner was under your tutelage and not under any other person? I however agree wholeheartedly that PAIA has absolutely nothing to do with the issue in hand. But the learner should have access to the script, not for any other purpose other than to check for him or herself that the marking was just and fair.
7th Aug 2014 at 8:01 am #3438
I posed the question with ETDP SETA and the response was that the learner is permitted to request the return of the script. They may use all of the appeals processes open to them (provider, SETA, QCTO and SAQA) and may take any other action (legal or even constitutional court if they wish) to fight this to the end. Should the learner – according to ETDP SETA – request another assessor to re-assess and should that assessor deem the learner competent then it becomes the problem of the new assessor who could be called to task related to the decision.
7th Aug 2014 at 9:17 am #3437
7th Aug 2014 at 9:28 am #3436
The big issue is who is the judge – the qualified expert assessor and moderator or the student? Our processes are robust and verified etc. Even internationally! Are we to be held to ransom by a dissatisfied student who, by her own judgement and in her own opinion, is so experienced and so good at what she does that it is impossible that she could have failed?
8th Aug 2014 at 8:19 am #3435
Unfortunately it appears there is no cut off in terms of appealing which seems to make a mockery of the entire assessment, moderation and verification process. There should be some way of recording on the NLRD data base the fact that the learner was assessed NYC and failed in her appeals.
8th Aug 2014 at 10:05 am #3434
Des, that’s a good point – please guide me here.
Where is the “apex” document regarding assessment and appeals and legal action?
Am correct it understanding that it sits with the SAQA? If so then the relevant legislation for SAQA would be the NQFAct 67 of 2008 and it says SAQA is responsible to the Minister = DHET Minister Nzimande. It’s also the act that’s given preference if there is a conflict, for example with the SDA.
But I cannot see where any mention of who has jurisdiction over disputes – I would assume the Labour Court because that is the court that has jurisdiction over SDA. (I’ve been right back to the original SAQA act – none there either.)
I do also have the SAQA document Notice 1036 of 2013 GG 36943 called: “National Policy ad Criteria for designing and implementing assessment for NQF qualifications and part qualifications and professional designations in SA”, which was released last October for comment and I recall being informed by SAQA that it would probably be about a year before it was confirmed – so sometime soon.
But that document also doesn’t contain any dispute procedure. It surely doesn’t make sense for every SETA ETQA to have their own procedure.
So if ETDP gave you that reply, please can you ask them to refer you to the document that supports their reply.
8th Aug 2014 at 10:47 am #3433
Administrative justice must be available to the provider as well, surely. I know of a case that went as far as the constitutional court (for a reassessment) and it was thrown out because the provider had done everything it was required to do in terms of policies and procedures. It seems like case of the tail wagging the dog.
I think providers need to indicate a cut off in their policies and procedures where some finality is reached and the learner signs to agree that X is the final point e.g. an independent assessor appointed by the SETA.
8th Aug 2014 at 11:14 am #3432
I can only comment from a practical point of view and write this with the assumption that the exam was fair and adheres to all the principles for a good assessment. I agree with most of the comment and Sylvia’s las one is basically a process that should be outlined in your QMS. What interests me most is the comment concerning the cost for copies. As a developer, I know that good assessments do not fall from trees. The reality is therefore that if the learner receives a copy, that assessment is compromised and should not be used again. I would therefore factor in the cost of having a similar exam developed and of course the other related admin costs. Methinks the learner might then be less enthusiastic to exercise her ‘rights’.
8th Aug 2014 at 11:31 am #3431
Jacqui, We looked into the scenario and feel that legislation, policies and procedures can provide guidelines, but no clear cut “always valid” manner in which to deal with the problem. For example, if the assignment does not test any learning objectives in the standard (probably a curriculum), then the learner has grounds for appeal. If the learning institution meets all the requirements for assessment (registered assessors and moderator, tests learning objective or outcomes in a standard, etc.) I would take the student on in court. If, however, the provider erred, then I would give the student the benefit of the doubt. If everything is in order the learner might just create serious problems and embarrasment for him or herself and the external assessor by not showing trust and respect for the original provider. If I were the external assessor, I would not get involved. The bottom line is, every situation should be dealt with on its own merit. Enjoy the weekend, Hannes Nel
8th Aug 2014 at 1:05 pm #3430
Well, thanks everyone, for your input. Our QMS is in order and verified by FASSET. Our results are verified annually. We have qualified assessors, moderators, assessment manager (me), chief examiner, international scrutiny. But according to legal opinion, every student has right of access to exam scripts and can thereafter do whatever they want with it – have it remarked by their preferred person e.g. lecturer, etc, and take court action if they desire. We are not obligated to abide by the “preferred person’s” mark etc – as Steve says, that is then “compromised”. I am confident that the student does not have a leg to stand on as far as her results are concerned but I just want to close the loopholes that the law seems to create.
8th Aug 2014 at 1:15 pm #3429
There will always be grey areas when it comes to learners resorting to legal action. I do not have experience with the type of situation that you have, but have had instances where learners were disqualified for dishonesty and then took up a legal challenge… that is entirely a different matter and all I can say is that when that happens, it is absolutely critical to ensure that the finding and communication processes are spot on. You seem to have your bases covered, but hopefully you will not need to go to court. Just a closing comment – I was very surprised to see the term ‘Exam’ again.
8th Aug 2014 at 4:01 pm #3428
8th Aug 2014 at 7:13 pm #3427
If the learner feels that he/she has performed according to the standard requirements, Yes they have got the right to lodge an appeal and state the facts why they think they have performed well. The outcome of the assessment will have to indicate the areas where the learner did not perform well. What we always need to bear in mind is that assessment process focus on the learning outcomes not the person ( i.e. the learner’s response or display of knowledge and understanding against the unit standard) and should they have not done obviously they will be deemed incompetent unless if during the appeal they state the valid reasons with proof of course of their inability to perform against the unit standards
E.g. If the learner feel that they were not in good health when they took the exam or feeling that they were not fairly treated by the assessor. Though the internal policy on appeals still will not give the script back but an assessment report that indicates the areas of incompetence. The solution to the matter is that a service of the external assessor can be utilised, even the moderation process which significantly focuses on the consistency and fairness of the assessment process against the unit standards and the verification process as an overarching process can still assist in ascertaining any unfairness.
9th Aug 2014 at 1:14 pm #3426
I agree with Jacqui’s advice concerning a mediator but, on the legal side, did the learner not sign an agreement at the beginning of the course and/ or on commencing the assessment that s/he understood the assessment and appeals process of that particular provider and agreed to be bound by them?
In which case I believe that, whilst the learner has a right to a copy of the marked script and records of the moderation and appeals proceedings, the provider in question is (providing that the learner agreed as set out in the above paragraph) under no obligation to accept an external assessor’s decision – it should be pointed out to the learner when handing over this documentation.
9th Aug 2014 at 1:42 pm #3425
Thanks, Charles, the learner did sign the terms and conditions which actually state no script review BUT not in the signed document – only in the student handbook so we had a “legal loophole”. Your second paragraph is the decision we eventually arrived at! Having spent a bundle on legal opinion – eish, I could have got it for free!
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