UK Curriculum and Accreditation Body t/a Scholars School System, R (on the application of) v Pearson Education Ltd

Matthew Butt KC: I. INTRODUCTION 1 The Claimant, UK Curriculum and Accreditation Body is an educational charity trading as Scholars School System (SSS). The Defendant, Pearson Education Limited (Pearson), is a private company that is one of several educational qualification awarding organisations that operates in the UK. This case concerns a public function exercised by Pearson and it is therefore amenable to judicial review in relation to this claim. 2 Following information it received, Pearson investigated SSS and then convened a malpractice committee (MPC) into the Claimant and others. This resulted in sanctions against SSS and its Chief Executive Officer Mr Zahid Bhatti. 3 SSS and Mr Bhatti appealed these decisions and an appeal panel was convened under Pearson’s procedures. The appeal relating to SSS was dismissed but Mr Bhatti’s appeal was allowed. SSS challenges the decision to dismiss its appeal by way of judicial review. There is also an issue between the parties as to whether a sanction remains against Mr Bhatti. 4 Permission was granted on a limited basis by Mr Justice Morris. In short, permission was granted only insofar as the challenge relates to the appeal panel’s decision and not the prior MPC or underlying investigations. There is an issue between the parties as to whether an application by the Claimant to amend the grounds of claim and to admit new evidence cuts across the permission decision and/or whether it should be allowed at all. 5 The grounds of claim maintained at the hearing before me are (1) procedural fairness (2) failure to give adequate reasons (3) irrationality and (4) appearance of bias. 6 SSS is represented by Ms Zoe Gannon, Pearson is represented by Mr Iain Steele and Mr Tom Lowenthal. I am extremely grateful to all counsel and their instructing solicitors for the care and skill they have shown in preparing and presenting this case. II. THE FACTS a. Background 7 In order to understand the claim it is necessary to set the factual background out in a little detail. 8 Pearson is regulated by the Office of Qualifications and Examination Regulation (Ofqual) which was established under Part 7 of the Apprenticeships, Skills, Children and Learning Act 2009 . Pearson is also a member of the Joint Council for Qualifications (JCQ). Pearson is currently the only qualification provider that offers Higher National Qualifications (HNQs). Its qualifications are delivered by a number of educational providers. 9 Pearson must approve providers before they can deliver its qualifications. Providers will then work under a variety of arrangements one of which is known as an “exceptional collaborative agreement” which was the arrangement that applied in this case. Under this arrangement SSS delivered Pearson qualifications to students in an arrangement with Central Bedfordshire College (CBC) as the “lead centre” and SSS as the “non-lead centre” also known as the “subsite”. Under this agreement CBC was in a direct contractual arrangement with Pearson whereas SSS was not. 10 Before June 2022 when Pearson suspended its approval, SSS was delivering BTEC Level 4 and 5 Business and Health HNQs as a subsite of CBC. CBC terminated its contractual relationship with SSS in January 2023. 11 As part of its quality assurance process, Pearson sent external examiners to audit centres and subsites such as CBC and SSS. 12 In 2021 Pearson became aware of allegations of malpractice against SSS in relation to the delivery of HNQs. The allegations included not recruiting with integrity and fabricating work for students. Pearson commenced an investigation into SSS. 13 Before Pearson learned of these allegations, similar concerns had been raised with CBC. In a short internal report from July 2021, however, CBC concluded that SSS had followed CBC recruitment procedures and took the matter no further. These concerns were not reported to Pearson by CBC as they should have been. It seems that SSS was also not informed of these allegations by CBC. b. Relevant policy and guidance 14 Pearson publishes a guide for centres and subsites. This states that recruiting with integrity means “you must make sure that learners are recruited onto qualifications that will benefit them, that will meet their aims and aspirations and that they have the capability and opportunity to achieve”. The guidance also sets out the importance of effective policies and procedures to prevent plagiarism and cheating. The guide makes clear that failure to recruit with integrity and/or to counter plagiarism are serious matters that can amount to malpractice and lead to withdrawal of approval by Pearson. 15 Ofqual publishes a handbook which sets out some of the responsibilities Pearson is subject to including the rules about how malpractice should be investigated. This provides at A8.1 that awarding organisations must take all reasonable steps to prevent the occurrence of malpractice in the development, delivery and award of qualifications which it makes available and at A8.6 that if an awarding organisation establishes that any malpractice has occurred it must promptly take all reasonable steps to prevent it from recurring and take action against those responsible that is proportionate to the gravity and scope of the occurrence. 16 The JCQ publishes a document entitled Suspected Malpractice Policy and Procedures (the JCQ policy) which has been adopted by Pearson. Pearson is required to comply with this in its investigations. The JCQ policy sets out the procedure to be followed by a MPC. The following are of importance in this case: “The Malpractice Committee may be assisted by an awarding body member of staff who has not been directly involved in the investigation: §6.7 The Malpractice Committee will determine: • whether correct procedures were followed; • whether malpractice as defined in this document (see section 1) has occurred; • the regulation or specification requirement which it is alleged has been broken; • the facts of the case based on the evidence presented to them; • whether the facts as so established actually breach the regulations or specification requirements; and • where the culpability lies for the malpractice”: §6.16 17 The sanctions available to the MPC are set out at §9.2 of the JCQ policy. These range from a written warning to withdrawal of centre recognition / approval. 18 The JCQ policy also sets out the procedure to be followed when there is an appeal from the MPC. The grounds for appeal are as follows: “Appeals must be based on reasonable grounds which relate to the incident in question. The following are accepted as reasonable grounds: • the incident was not dealt with in accordance with the published procedures as detailed in the JCQ document Suspected Malpractice – Policies and Procedures; • the decision was unreasonable in light of the evidence presented to the Malpractice Committee; • further evidence (including medical evidence) has come to light which may change the awarding body’s decision; • the sanction imposed is disproportionate to the seriousness of the malpractice”: §37 19 The appeal procedure specifies a two stage process. An initial consideration upon the papers is followed by an oral hearing if the appellant remains unsatisfied. At the oral hearing the policy provides that: “The appeal hearing will take the form of a re-examination of the evidence, comments and reports provided to and by the awarding body, and observations presented by the appellant”: §68 20 The appeal panel has the power to remake the decision or remit the case back to the MPC. c. The Defendant’s investigations 21 The Pearson investigation began with an unannounced visit to SSS’s premises on 20 October 2021. The investigation was led by Elliott Gibbons, Head of Investigations at Pearson. 22 After the unannounced visit, interviews were conducted by Pearson with a sample of 50 students recruited by SSS. This comprised around 10% of the uncertified (active) HNQ business students at SSS. These interviews were conducted by investigators who were neither external examiners nor qualified in business studies. The student interviews and the action taken against those students played a central role in the case against SSS. 23 49 students were invited to interview of whom 29 attended. When asked about their course and studies, some students appeared to be unfamiliar with their own work. Some struggled to explain basic concepts and/or displayed insufficient English language skills. Mr Gibbons said that the interviews were “particularly damning”. The Claimant’s then counsel before the appeal panel referred to interview excerpts played before the panel as “toe curlingly embarrassing.” 24 The students from the sample group had their cases referred to MPCs in tranches. These MPCs had access to the videos of the student interviews and read the relevant documents. The MPCs found malpractice by 42 of the 50 in the sample group. 40 were disqualified because their work had been plagiarised and so did not receive their qualifications. 2 received written warnings. None of these findings were appealed by CBC on behalf of the students. 25 As a result of these findings, additional checks were carried out on 321 students at SSS. These were performed by external examiners. The examiners reviewed written responses from the students about their studies and in the case of concern an interview was held. Only 87 students were eligible to certify with the remainder disqualified. 26 On 28 February 2023 Pearson informed SSS of its findings to date. The letter set out details of two allegations against SSS namely (1) authenticity of student work and (2) a failure to recruit with integrity. Pearson invited SSS to provide statements from the relevant staff responsible for recruitment and admission. 27 Mr Bhatti as CEO provided a statement to the investigation dated 10 July 2023. This set out his response to the allegations on behalf of SSS. Mr Bhatti relied upon the fact that SSS was following CBC procedures and that inspections by external examiners over the same period had not revealed problems of the nature that the Defendant’s investigation had found. Mr Bhatti accepted that: “That is not to say that the subsequent findings of malpractice were wrong. It merely goes to show that malpractice may not be immediately obvious” 28 Mr Bhatti also accepted that: “[r]egrettably, we cannot exclude the possibility that some former members of staff may have knowingly accepted work which was inauthentic” and “as CEO I recognise the need to take ownership of past failings on the part of UKCAB. In this statement I have endeavoured to acknowledge those and also to put them into context.” 29 In conclusion, SSS relied upon (i) a lack of support from CBC (ii) the impact of COVID 19 and (iii) the restriction of student malpractice to a limited number within one particular programme. d. The malpractice committee meeting 30 On 01 December 2023, Pearson notified SSS that the matter was being referred to a MPC for a decision as to whether malpractice had occurred and if so what sanctions should be imposed on any individuals and/or CBC and/or SSS. A case summary and evidence pack were provided to SSS via Mr Bhatti. A response was requested by 13 December. None was sent. SSS point to the tight timeframe imposed in this regard. 31 The case summary was authored by Samuel Shimada and approved by Elliott Gibbons. It stated that investigators had received allegations that SSS was not recruiting with integrity and fabricating work for students including the use of rewording tools. The relevant provisions of the JCQ policy were set out. The document summarised the interview process and the results of the malpractice investigation into the students. It detailed the additional student checks which at the time of the case summary were a work in progress. The case summary also included a summary of Mr Bhatti’s response and that of CBC. It concluded that there was evidence to suggest that the regulations may have been breached by SSS and/or CBC and recommended that the case be referred to a MPC. 32 The MPC convened on 15 December 2023. It examined the alleged malpractice of SSS, Mr Bhatti, CBC and the CBC head of centre Mr Hadawi. 33 The MPC was formed of three members drawn from a larger panel. These panel members are experienced in the education industry but have never been employed by Pearson. SSS did not appear before the MPC. Contrary to the policy requirements set out at §16 above, Mr Gibbons was appointed to act as what he called an “amanuensis” to the panel. Mr Gibbons states in his witness statement that: “I did not participate in any decision making regarding the MPC determination. My role was to draft a determination in real time on the basis of the committee’s consideration; on which the Committee would provide live feedback and comment.” 34 Following the hearing, Mr Gibbons emailed a draft decision to the MPC on 15 December 2023. It is clear from email correspondence that limited changes were made to the draft by the committee. A member of the MPC emailed Mr Gibbons at 16:49 that day and said: “Hi, Thank you for the draft. You have made us all sound coherent! I have no comment to add. I have seen Olivia’s response. Regards, Mike PS Merry Christmas and a Happy New Year. Ho! Ho! Ho!” 35 “Olivia” was the chair of the MPC. The MPC’s decision was sent out to the Claimant on 28 December 2023. It made no reference to Mr Gibbons’ involvement. Indeed the Claimant was not aware of any role played by Mr Gibbons at the MPC until his statement was served after permission had been granted in this claim. The Defendant explained that this was due to an oversight by Pearson. 36 The MPC stated that it was satisfied that the investigation had been conducted appropriately. It concluded that there had been serious malpractice by SSS, Mr Bhatti, CBC and Mr Hadawi. 37 The MPC’s findings relevant to SSS/Mr Bhatti included the following: i. Mr Bhatti failed to report allegations of malpractice to Pearson in a timely manner. ii. There had been extensive and significant plagiarism across learners’ work. The centre had either failed to identify plagiarism or ignored the results of Turnitin [plagiarism detection software] reports. iii. There was a distinct lack of a centre wide approach to plagiarism and to preventing the issues identified. iv. The MPC did not accept that the findings were not representative as suggested by SSS. v. SSS should have identified and taken appropriate action in relation to the plagiarised work. vi. SSS were responsible for the recruitment of learners. The evidence from the recordings was that a significant number of learners were unable to communicate effectively in English and not suitable to be enrolled onto these programmes. 38 In terms of sanction the MPC’s decision in relation to SSS was as follows: i. The MPC considered the range of centre and staff sanctions available considering the least severe first. ii. In light of the significant malpractice identified and the lack of confidence it had in the management of the centre the MPC determined that SSS must not be permitted to deliver Pearson qualifications. iii. The MPC also determined that Pearson should not consider any applications for approval from SSS, or any organisation in which Mr Bhatti has a senior role, for a period of 10 years. 39 Finally in relation to Mr Bhatti the sanction was: “Due to a lack of confidence in his management competence and his failure to have effective oversight of the delivery of qualifications, the committee determines that Mr Bhatti be debarred from all involvement in the administration and assessment of Pearson qualifications for 10 years.” 40 There were also sanctions against CBC including removal of collaborative arrangements. Mr Hadawi was subject to a similar sanction to Mr Bhatti. 41 It is clear from the above that the SSS sanction included a prohibition upon Pearson approval for any organisation in which Mr Bhatti played a senior role for 10 years. This does not appear to be a sanction that attaches to SSS and is in any event otiose as the MPC had debarred Mr Bhatti from all involvement in delivery and assessment of Pearson qualifications for the same period. e. The appeal process 42 The MPC decision was appealed by SSS on 11 January 2024. The stage one appeal (on paper) was dismissed by Pearson’s head of regulation on 22 February 2024. 43 On 04 March 2024, SSS submitted an application for its appeal to be heard at an oral hearing. A three person appeal panel was appointed to hear the appeal. The members were drawn from the same pool from which the MPC had been sourced but did not comprise any of the MPC members. 44 The hearing was listed for 17 May 2024 and was conducted remotely. Both SSS and Mr Bhatti were represented by their own counsel at the hearing. Mr Gibbons presented the case for SSS. 45 I have read the transcript for the appeal panel hearing. I do not consider that those representing SSS and Mr Bhatti provided the panel with the assistance that they were entitled to expect. Even making allowance for the importance of the matters in issue to SSS and Mr Bhatti and the strained relationship between the Claimant and Defendant by this stage, I consider the adversarial approach adopted by both counsel to have been unhelpful to the panel. 46 The hearing began with counsel for SSS requesting a ruling that there be a concise statement from the Defendant as to what Pearson’s case was on institutional malpractice. The chair of the panel responded that from what he could see there was sufficient evidence to proceed. He went on to say that he was trying to be as fair as he could be and the appeal was the appellant’s opportunity to put its case as to why there was insufficient evidence to show the level of malpractice found by the MPC. This resulted in an application for the chair to recuse himself which was refused. 47 Opening submissions were then made by counsel for SSS and Mr Bhatti. Heavy reliance was placed upon a jurisdictional argument (based upon the lack of a contractual relationship between Pearson and SSS) and the small size of the sample of students interviewed. It was argued that there was no evidence of systemic malpractice and that the investigation had been unfair. 48 Mr Bhatti was asked questions by Mr Gibbons and the panel. When asked whether he accepted in hindsight that there was malpractice relating to a failure to recruit with integrity and authenticating work before it was submitted, counsel for SSS objected to the question as: “wholly unfair and that the fact that the question is even asked goes to show the complete misapprehension (sic) on the part of the senior investigator…it is quite extraordinary.” The question was therefore never answered. 49 When the Defendant presented its case, a number of student interviews were played to the panel. A student who completed an assignment which concerned the “marketing mix” was unfamiliar with the term and did not seem to know what it meant. A second student who had written about the distinction between management and leadership showed no awareness of the difference or what these words mean in a business context. A third student was taken to a paragraph within their work which was obviously meaningless but did not appear to show any insight into this. SSS had awarded pass grades for all of the work in question. 50 It was not disputed at the hearing that students had been placed upon courses that were not at an appropriate level for them and that they had submitted work that was not their own. Counsel for SSS accepted at the panel “[w]e’ve just listened to four, five extracts from five interviews. I'm not going to pretend they are anything other than toe-curlingly embarrassing” . It was (and remains) SSS’s case that these problems were isolated and did not show institutional malpractice. 51 The hearing lasted for seven hours. Detailed closing submissions were made by counsel for SSS and Mr Bhatti. Brief submissions were made by Mr Gibbons on behalf of the Defendant. After the hearing, further written submissions were requested and submitted from the Claimant dealing with the jurisdiction point (not pursued before this court after permission was refused on this ground, see below). 52 The appeal panel decision was communicated by way of letter dated 28 May 2024 addressed to Mr Bhatti. The letter informed him that regarding the sanction applied to SSS the decision was that the appeal should not be upheld but that his own appeal had been upheld. 53 The decision addressed the arguments on both sides. It summarised the evidence relied upon by the Defendant and in particular the interviews and the additional checks undertaken by the external examiners. 54 The notice set out that “the Appeal panel considered all of the evidence” and then went on to provide its findings. The relevant findings and decision as to sanction were as follows: “The malpractice committee determination outcome (1.5) under 'Findings' the reference to the personal malpractice of Mr Bhatti and Mr Hadawi should not be there. Regarding plagiarism, the BTEC Centre Guide to Quality Assurance and Assessments has clear guidance on how Centres can minimize and identify it (P56). The Appeal Panel determined that the learners did not display an adequate understanding of their own work. Although a considerable amount of time had passed, learners had access to their work before the interview and it was displayed on the screen as a prompt. Learners could not give a basic summary of the subject of their submitted work. One student…did not recognize that paragraphs in their work were nonsense. The Panel considers, on the balance of probability, there is ample evidence in the recorded student interviews to corroborate that SSS failed to recruit with integrity. An audit by CBC had identified that existing requirements were not fit for purpose and SSS had failed to effectively establish the learners' skills and experience prior to commencing the level 4/5 course. The low attendance rates identified by CBC supports the concerns regarding recruitment and runs contrary to Pearson expectations as detailed in the BTEC Higher Nationals Centre Guide to Quality Assurance. The panel determined there was insufficient evidence regarding ineffective record management to make a judgement and should be set aside. The Appeal Panel determines, on the balance of probability, malpractice had been committed by SSS with respect to plagiarism and recruitment with integrity and considered the range of sanctions available (Appendix 5, JCQ Malpractice Policies and Procedures), the least severe first. Having considered the range of sanctions, the Appeal Panel agrees with the Malpractice Committee's determination that as the result of the malpractice committed by the Centre, along with the loss of confidence in the Head of Centre and senior management, Pearson should not consider any application for approval from SSS for a period of 10 years. The severity of the malpractice justifies a suspension for a significant period of time for which 10 years is considered to be appropriate. This appeal is not upheld. The malpractice letter to Mr Bhatti, CEO, (1.4), the Panel determined that the malpractice committee and the Pearson investigation had failed to identify any specific malpractice with regards to Mr Bhatti. The malpractice letter to Mr Bhatti, CEO, (1.4) noted that as chief executive he bears responsibility for the oversight of all activities at the centre but failed to identify any specific malpractice that he committed. The malpractice committee also did not justify why a 10 year personal debarment from all involvement in administration and assessment of Pearson qualification was appropriate, as well as not considering application for approval for any organisation in which Mr Bhatti has a senior role, for a period of 10 years. The appeal on behalf of Mr Bhatti is upheld. ” III. THE CLAIM IN JUDICIAL REVIEW 55 The Claimant wrote to the Defendant asking that the decision be set aside. The Defendant refused. Following pre-action correspondence this claim was issued on 03 September 2024. 56 The claim as originally drafted (not by Ms Gannon who was instructed after permission was granted) sought to challenge the Defendant’s investigation, the decision of the MPC and the outcome of the appeal panel decision. Summary grounds of defence were filed on 11 October 2024. 57 Permission was granted by Mr Justice Morris on 24 March 2025 on a limited basis. The permission decision states that the only relevant decision which can properly be the subject of challenge is the appeal outcome dated 28 May 2024. Permission was refused in respect of the earlier investigations and the MPC determination. Permission was also refused in relation to a jurisdictional challenge. 58 No renewal application was made by the Claimant. 59 Following the grant of permission and on 02 May 2025, the Defendant filed detailed grounds of defence and a 36 page statement from Mr Gibbons. Mr Gibbons exhibited 1018 pages of evidence and a further 1000 or so pages were disclosed on 07 and 09 May 2025. It was only through the witness statement of Mr Gibbons and the documents that he exhibits that the Claimant learned of his presence at and correspondence with the MPC summarised above. Also included within the disclosure was correspondence between Pearson and the 50 students who were investigated. 60 In consequence of this evidence, the Claimant sought to rely upon further evidence of its own. This comprised (1) a witness statement from its solicitor which primarily dealt with procedural matters, the duty of candour and concerns in relation to (i) the Defendant’s correspondence with students and (ii) Mr Gibbons’ role within the investigation and (2) a statement from Mr Amir of SSS which comprised a response to the evidence of Mr Gibbons. The statement from the Claimant’s solicitor in particular is heavy upon argument and comment. 61 The Claimant also sought to amend its grounds of claim on the basis that it was unaware of certain relevant matters until the statement of Mr Gibbons and exhibits upon which he relies were served or disclosed. The application to amend broadly relates to three areas (1) pleadings which relate to the role of Mr Gibbons in the investigation and MPC (2) a new ground relating to Mr Gibbons playing a role in relation to both the investigation and the MPC which is a breach of the policy set out above and (3) amendment to the remedies sought. 62 The Defendant strongly opposes the application to admit evidence and the application to amend the grounds. It seeks to confine the Claimant to the pleaded grounds of claim which remain following the limited grant of permission. The Defendant submits that the application cuts directly across the permission decision and causes unfairness as it has not had an opportunity to respond in particular to the submissions relating to the investigations into the students. 63 The manner in which the various applications and evidence have been served has resulted in applications for relief from sanctions on both sides. Insofar as these relate to matters other than the Claimant’s application to amend its grounds, I granted all of these applications at the beginning of the hearing. 64 The application to amend in relation to the student investigations seeks to include a complaint that the Defendant failed properly to communicate with students, failed to conduct timely interviews and failed to provide students with a transcript of their interview as required by policy. 65 I refused the Claimant’s application to amend its grounds to include factual pleadings in relation to the student investigations. I do not consider it arguable that the new material materially undermines the relevant findings in relation to the students who were investigated. 66 The complaints relating to the student investigations are set out in the witness statement of Mr Amir who is the interim Chief Operating Officer of SSS. Mr Amir contends that inadequate information was provided to the students before their interviews. He seeks to establish that correspondence is missing and was not provided to the MPC and appeal panel. He highlights complaints and frustrations expressed by students in relation to the Pearson investigation. Mr Amir also says that there was a failure to provide the students investigated with transcripts of their interviews as required by policy. The Claimant submits that it only became aware of this material after the permission decision hence the lateness of this application. 67 Even taking these matters at their highest they do not impact upon the evidential value of the interviews or the findings made against the students. Those interviewed were not failing to explain difficult concepts in a manner that might be remedied with better information and/or a timelier investigation, they were failing by some margin to explain basic concepts in work they had submitted. Issues with correspondence also do not explain language problems. Importantly there have been findings against these students by MPCs which have not been appealed on behalf of any of the students who were disqualified. 68 It is correct that the Pearson investigations handbook says that transcripts of interviews should be produced and sent to interviewees for reference, however, here the students were sent links to the video which was an adequate substitute. I accept the Defendant’s explanation that in an investigation of this kind it would be disproportionate to produce transcripts of all of the student interviews. 69 Ultimately I did not understand that the Claimant was seriously disputing that problems had been uncovered in relation to those investigated. What was disputed was what inferences could properly be drawn about SSS from these investigations. 70 There is therefore no proper basis to go behind the decision of Mr Justice Morris to refuse permission to challenge the investigations into the students. Further I agree with the Defendant that there would be prejudice were the hearing to extend in this direction as it is not a point which it has had a proper opportunity to address in evidence. 71 I have tried not to take an overly technical approach to the grounds of claim but to read the pleadings in a way that will ensure fairness to both parties. I recognise that the manner in which this case has evolved has caused difficulties for the lawyers on both sides. I have allowed the other applications to amend the grounds of claim and have allowed permission for all of the evidence provided to be considered. The evidence contained within the statements of Mr Amir and the Claimant’s solicitor is, however, not all relevant to the claim as pleaded. IV. GROUND ONE (PROCEDURAL FAIRNESS) a. Arguments of the parties 72 Ground one as it is now formulated by the Claimant relates to procedural fairness. The Claimant submits that contrary to the terms of §6.7 of the JCQ policy (above) Mr Gibbons was directly involved in the investigation . It is argued that he should have played no role in the MPC far less should he have (as the Claimant puts it) drafted its decision or (in his words) acted as amanuensis to the MPC. 73 The Claimant further submits that as part of the MPC’s role was to determine whether the investigation was fair, it could not properly perform this role due to Mr Gibbons’ involvement in the same. 74 The Claimant submits that the investigation was not fair. This is said to be sufficient to vitiate the MPC decision. This is not cured on appeal because the appeal panel did not itself consider the fairness of the investigation(s). 75 In response, the Defendant accepts that Mr Gibbons should not have played the role he did at the MPC but submits that this does not impact upon the appeal panel decision which was a curative appeal. The Defendant does not accept that the MPC or appeal panel were obliged to make a finding as to the fairness of the investigation but in any event submits that the investigation was fair. The Defendant submits that the reference to “determining if correct procedures” had been followed at §6.16 of the policy is a reference to the procedures of the subject of the investigation and not the investigator. b. Conclusions 76 It is accepted that Mr Gibbons should not have played the role he did at the MPC. It is clear from the email sent by the panel member that Mr Gibbons used his own words and phrases to make the MPC (as one of the members put it) sound coherent. I do not however find that there is any basis to conclude that he made the decision himself or sought to place pressure on the MPC. 77 One of the matters which must be determined by the MPC is whether correct procedures were followed. I agree with the Claimant that this likely relates to the investigation into the student or centre in question. This interpretation is consistent with the associated policy and training documents that I have read. This underlines the importance of Mr Gibbons not having played any role at the MPC at which the Claimant was not present. 78 Does this, however, vitiate the decision of the MPC in a manner that cannot be cured by the appeal panel? 79 It is well established that when an appellate body considers the case afresh, hears all of the relevant evidence and redetermines the merits this will have the effect of remedying any unfairness in the earlier process: see R (Gossip) v NHS Surrey Downs CCG [2020] PTSR 1239 at §37-41 applying Calvin v Carr [1980] AC 574 . 80 The first question therefore is whether the appeal in this case was a curative appeal. As set out above the JCQ policy states that the grounds of appeal include (i) procedural error (ii) unreasonable decision (iii) new evidence or (iv) disproportionate sanction. These are more in keeping with a tribunal exercising a review function. The same policy, however, also states that the appeal hearing will take the form of “a re-examination of the evidence, comments and reports provided to and by the awarding body, and observations presented by the appellant”. This is more in keeping with a re-hearing. 81 What matters is what approach the panel took in this case. Having read the appeal hearing transcript and the decision, I am satisfied that the panel conducted a re-hearing. It considered all of the evidence submitted by both parties and considered the issues in the case afresh. There is no indication that a test of unreasonableness or similar was applied. This was therefore a curative appeal. Whatever went wrong at the MPC (and there is no suggestion that there was bad faith on the part of the MPC or Mr Gibbons and I have seen no evidence of the same) was capable of being remedied by the curative appeal that came thereafter. I agree with the Defendant (and the permission decision) that the appeal panel decision is therefore the only valid target of challenge. I have considered all of the evidence which has been served since the permission decision and considered the Claimant’s submissions in this regard but nothing in that material changes the position. 82 The Claimant submits that what went before is not cured by the appeal because the appeal panel gave no consideration to whether the Pearson investigation was fair and conducted in accordance with JCQ malpractice policy. The Claimant is correct that there is no statement to this effect within the appeal panel’s decision. The unfairness relied upon by the Claimant relates to the following features of the case: (i) unfairness in relation to the student investigations; (ii) delay in the SSS investigation; (iii) the use of non-subject matter experts in the investigation; (iv) SSS being given only eight working days to respond to the investigation; (v) a failure to clearly articulate the case against SSS and Mr Bhatti. 83 I have dealt with complaints relating to the student investigations above. 84 I do not think that there is anything in the delay point. I accept that the investigation could have progressed more swiftly but this is a common complaint in investigations of this kind. No forensic prejudice has been identified. It was never argued that there was delay such as to render the proceedings an abuse of process or similar. 85 The reference to non-subject matter experts is to the Pearson investigators who conducted the interviews. The point is taken that none of these individuals were qualified in business studies and so were not well placed to investigate the students. The Claimant contrasts this with the external examiners appointed by Pearson who did not identify the problems which were revealed by the investigation (see below). I do not consider that the problems which were discovered required any subject matter expertise. The students failed to explain basic concepts within their own work and about the subject they were studying. This would be evident to a trained investigator. 86 It is correct that short periods of time were imposed by Pearson for SSS to respond to the various stages of the investigation. It would however have been open to SSS to have requested an extension. There is no reason to think that this would have been refused by Pearson. Nothing in the correspondence leading up to the MPC or appeal panel suggests that SSS was shut out from serving further evidence or submissions. 87 It has been a long standing complaint raised by those representing SSS and Mr Bhatti that the case against them was not clearly articulated. In my judgement the Defendant’s case was made sufficiently clear by virtue of the 28 February 2023 letter and the case summary. These documents stated that the central concern was that SSS had recruited students who were not suitable for their course and that those students had submitted work that was not their own. The case SSS had to meet therefore was whether there had been serious malpractice by SSS by virtue of a failure to recruit with integrity and a failure to detect and prevent plagiarism. Pearsons’s case was that SSS was at fault by having recruited significant numbers of such students and having failed to detect the plagiarism that these students had resorted to in order to remain on and complete their courses. This was sufficient for the Claimant to respond to. Having read the grounds of appeal and hearing transcript I do not consider that counsel for SSS was restricted in how he responded to the allegations by any lack of specificity. 88 I do not therefore consider that either the investigation or the appeal panel procedure was unfair. To the extent that there was a technical failure by the appeal panel to record that correct procedures had been followed, I do not consider that this could possibly have altered the outcome. V. GROUND TWO (REASONS) 89 Ground two is a challenge to the reasons provided by the appeal panel. a. Relevant legal principles 90 It is well established that a public body is required to give reasons for a decision of this kind which must be adequate and intelligible and enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues disclosing how any issue of law or fact was resolved: see R. (Hawes) v Tower Hamlets LBC [2024] EWHC 3262 (Admin) at §8. It is not for the court to fill in the gaps see R. (on the application of Possible (The 10:10 Foundation)) v Secretary of State for Transport [2025] EWHC 1101 (Admin) . 91 The duty does not extend to every material consideration and reasons will not be inadequate just because a claimant can identify some forensic as opposed to genuine doubt about the basis for the decision: see South Buckinghamshire DC v Porter [2004] UKHL 33 , [2004] 1 WLR 1953 at §33 and 36. 92 There is no duty on a decision maker in giving reasons to deal with every argument presented by counsel in support of their case, Eagil Trust Co v Pigott-Brown [1985] 3 All ER 119 at p.112: “a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted.” 93 The legal standard applicable in public law, to assess whether legally adequate reasons have been given by a decision-maker, is a practical one. It recognises that decisions are being given to an informed audience: R (Exolum Pipeline System Ltd) v Crown Court at Great Grimsby [2024] EWHC 2811 (Admin) . 94 Non legally qualified panels are entitled to a degree of benevolence when considering their reasons: Corkish v Wright [2014] EWHC 237 (Admin) at §12. b. The reasons challenge as advanced 95 The Claimant advances five challenges to the appeal panel’s reasons. These are: i. a failure to address whether the investigation was fair and in accordance with the JCQ policy. This required an investigation into SSS and each of the 50 students in the sample investigated; ii. a failure to give adequate reasons for its conclusion on plagiarism; iii. a failure to give adequate reasons for its conclusion on recruiting with integrity; iv. a failure to give reasons for sanction and why this was proportionate; v. a failure to give reasons as to why Mr Bhatti’s appeal was upheld but the sanction imposed on SSS included a 10 year prohibition upon his playing any further role within Pearson. 96 There is substantial overlap between this ground and ground 3 (rationality). c. Conclusions 97 As set out above, it is correct that the reasons provided by the appeal panel do not deal in terms with whether correct procedures were followed during the investigation. I do not however consider that the failure to provide reasons in this regard has left SSS in any genuine doubt as to the basis for the decision nor do I consider that it renders the reasons inadequate in a public law sense. 98 I have dealt with the Claimant’s submissions in relation to fairness with regard to the investigation above. In my judgement the matters complained of do not come close to the kind of unfairness that might vitiate the decision or cause a panel to conclude that malpractice might not in fact have occurred. I can understand why an appeal panel would not consider these matters to be of central importance to the case. 99 I agree with the Defendant that the manner in which the case was presented by counsel then instructed for the Claimant did not assist the appeal panel. The grounds of appeal took points without discrimination. Oral submissions were lengthy and unfocused. A significant amount of time was taken with a jurisdictional argument that was rightly abandoned before this court after the permission decision. The reasons must be read with this in mind. 100 The reasons given on plagiarism are comparatively short. They do, however, reference the guidance that was in place and the fact that the student interviews provide evidence of plagiarism. The Claimant complains that (i) the reasons did not deal with the fact that the plagiarism concerned only a small proportion of its students and (ii) that this was not detected by the external examiners. 101 The panel considered these points as they are summarised within the reasons at an earlier point: “Regarding the alleged plagiarism, the sample investigated was 50 from a potential 1300 learners. Although 40 were disqualified, how can the board be certain this represents widespread undetected plagiarism. Further the external examiner had not reported any issues regarding plagiarism.” 102 The Defendant was obviously not in a position to investigate all 1300 students. It had to pick a sample and 50 students from one course was a reasonable approach. A submission that this sample size is too small to be of statistical significance is defeated by the additional checks conducted by the Defendant. As the panel recorded: “A process of additional verification was undertaken by Pearson in relation to the students outside of the sample who were pending certification…of these 81 were certified…105 did not…evidence an acceptable level of English and or subject knowledge” 103 The small size of the sample was therefore something relied upon by the Claimant and referenced by the panel but it did not in the event prevent the panel from finding serious malpractice proven. I do not consider that a failure to address this argument within the reasons renders them inadequate. 104 I have come to a similar conclusion in relation to the reasons concerning failure to recruit with integrity. The Claimant submits that it is not clear what from the student interviews could “corroborate” that SSS failed to recruit with integrity. I disagree. I consider the connection between the interviews and a failure to recruit with integrity would be clear to anyone who read the panel’s reasons. The interviews showed that students on HNQs had been recruited by the Claimant to courses clearly not suitable for their ability. That was why the Claimant’s counsel accepted that the footage had been “toe curlingly embarrassing”. The panel found that this could only have resulted from a lack of integrity in that recruitment process. 105 The Claimant’s second complaint is that the panel did not explain why it placed any reliance upon the CBC investigation conducted in April 2023 when the grounds placed the impartiality and accuracy of that investigation in question. The Claimant also relies upon the fact that an earlier CBC report dated July 2021 found that SSS was compliant with its procedures. I do not consider that a failure to address that specific argument is capable of rendering the reasons inadequate. This was not a principal controversial issue in the case. 106 Finally upon this point, the Claimant submits that reasons should have been provided as to why it was not considered sufficient that SSS had complied with CBC’s procedures and improved its own procedures since the students in question were recruited. For the reasons set out below in relation to the rationality challenge it is very hard to see how SSS could sensibly claim that CBC’s procedures caused it to recruit students who were far below the required standard or to ignore submission of work that was not the student’s own. It was accepted that SSS was subject to its own duties in relation to recruitment and prevention of plagiarism. Blaming CBC was not therefore a defence to the allegations. I consider that the panel dealt with this adequately by recording that it did not accept that SSS could rely on CBC monitoring to discharge its own obligations to the Defendant and under the Guide to BTEC Quality Assurance. 107 The fourth reasons challenge relates to a failure to give reasons for sanction including why it was proportionate given the consequences for SSS. In relation to SSS, the reasons record that having found malpractice proved in relation to a failure to recruit with integrity and plagiarism, the panel considered available sanctions with the least severe first. This was the correct approach. The panel went on to say that due to the malpractice committed by the centre as well as the lack of confidence in the Head of Centre and Senior Management…the severity of the malpractice justifies a suspension for a significant period of time for which 10 years is considered appropriate. This was sufficient to enable SSS to understand why the panel had applied this sanction. 108 Finally SSS submits that no reason is provided for upholding Mr Bhatti’s appeal but maintaining as part of the sanction that Pearson should not consider any application for approval in which he had a senior role (if indeed this were the decision). The Defendant submits that as the SSS sanction included a reference to “the lack of confidence in the Head of Centre and Senior Management” this explains why the ‘senior role sanction’ remains against Mr Bhatti. 109 The reasons the panel provided for upholding the appeal in relation to Mr Bhatti give the reader the impression that no malpractice had been found in his case. The Defendant accepted at the hearing that the panel’s conclusions in relation to Mr Bhatti are unclear. Whether or not Mr Bhatti is subject to any personal sanction is obviously a principal controversial issue in the case. I return to this in relation to the rationality challenge and the appropriate remedy. 110 It follows that with the exception of the sanction applied to Mr Bhatti the reasons are legally adequate. I have considered all of the complaints as a whole but I remain of the view that the reasons deal adequately with all of the principal controversial issues bar one. 111 I also do not consider that there is reason to believe that had the panel given fuller reasons then it might have come to a different conclusion. This is due to the nature of the matters complained of which I do not consider to be central for the reasons set out above. Even if I am wrong about the adequacy of the reasons therefore in my judgment it is highly likely that the outcome would not have been substantially different for SSS had fuller reasons been given and I would have applied Section 31 (2A) Senior Courts Act 1981 and refused to grant a remedy on that basis. VI. GROUND THREE (RATIONALITY) 112 The rationality ground closely tracks the reasons ground. There are six elements to this ground: (i) the decision failed to take into account unfairness relevant to the investigation into the students; (ii) the decision failed to have regard to the fact that external examiners had not identified the now alleged plagiarism; (iii) the 2023 CBC report was an irrelevant consideration taken into account; (iv) the decision failed to have regard to the fact that CBC had devised the relevant recruitment procedures and that SSS had since adopted revised procedures; (v) the sanction was disproportionate for “relatively minor procedural issues” ; (vi) the sanction against Mr Bhatti was irrational given the panel’s other findings relating to him. 113 In relation to the alleged unfairness towards the students, this was a matter upon which permission was refused and I have not allowed an amendment to the grounds to allow this claim to extend into the wider investigations into the students. I do not in any event accept that this on its own or in combination with other grounds comes close to showing that the decision under challenge was irrational. I do not consider that the findings against the students in this case could be materially affected by delay, failure to provide transcripts (as opposed to video recordings) or shortcomings within the correspondence provided to the students in advance of their interviews. 114 I do not consider the fact that the external examiners did not identify the same level of plagiarism as the Defendant’s investigation could render the decision irrational. I note that the panel had regard to the fact that “the external examiner had not reported any issues regarding plagiarism” . It was therefore alive to this point. An external examiner plays a fundamentally different role to those who are investigating malpractice. The role of the external examiner is primarily to ensure compliance with national standards and not to investigate malpractice. External examiners do not conduct interviews of the kind which were conducted by the Defendant’s investigators. Having recruited the students in question, the Defendant was in a better position than an external examiner to detect the problems which had been revealed by the investigation. It must also be recognised that the additional checks undertaken by the Defendant did involve the use of external examiners. 115 I do not consider that the panel fell into legal error by considering the 2023 CBC report. The fact that CBC was in dispute with SSS at the time the report was produced was something that the panel was referred to but it does not follow that the panel was bound to ignore the report for this reason. I do not consider that the decision by the panel to place reliance upon the report was irrational. SSS has identified no legal reason why no reasonable panel could give any weight to this material. 116 I also do not consider that it was irrational to find serious malpractice when CBC had stated in its July 2021 audit that SSS had complied with the agreed recruitment process. This report predates the Defendant’s investigation. It has not been explained by the Claimant how agreed recruitment procedures could have caused SSS to recruit students who were clearly below the required standard or fail to detect plagiarism. 117 The Claimant’s position is that the investigation discovered “relatively minor procedural issues” at SSS and the sanction imposed was therefore disproportionate. The Defendant strongly disagrees and points to the scale of misconduct uncovered and the extent to which that malpractice undermined the integrity of Pearson qualifications and the work and achievement of students who achieved qualifications honestly. I accept that a reasonable panel could reject the Claimant’s characterisation of triviality and regard this as a case of serious malpractice. I do not consider that the Defendant was irrational in this regard. 118 Finally under the rationality ground the Claimant returns to the tension between the panel’s findings in relation to Mr Bhatti and the apparent upholding of the decision that he be barred from holding a senior role in an organisation that delivers Pearson qualifications for a 10 year period. 119 The panel found that the MPC and investigation had “failed to identify any specific malpractice with regards to Mr Bhatti.” The panel concluded: “The malpractice committee also did not justify why a 10 year personal debarment from all involvement in administration and assessment of Pearson qualification was appropriate, as well as not considering application for any organisation in which Mr Bhatti has a senior role, for a period of 10 years. The appeal on behalf of Mr Bhatti is upheld.” 120 My interpretation of the above is that the panel made no findings against Mr Bhatti personally and did not consider that he should be the subject of any sanction. 121 In the section which precedes this (dealing with SSS) the panel made reference to “a loss of confidence in the Head of Centre and Senior Management ” but specified only the sanction that “Pearson should not consider any application for approval from SSS for a period of 10 years…This appeal is not upheld” . There was no reference here to a prohibition against Mr Bhatti playing a senior role within any organisation delivering Pearson qualifications. This was significant because the MPC purported to impose the ‘senior role sanction’ within its decision relating to SSS and not Mr Bhatti. 122 The Claimant submits that this is an irrational finding. If no malpractice was found against Mr Bhatti why should he be subject to a 10 year prohibition from playing a senior role delivering Pearson qualifications? 123 The Defendant submits that the appeal panel did make a finding against Mr Bhatti and this can be seen by the reference to a “loss of confidence in the head of centre and senior management”. The Defendant submits that when the panel said that the 10 year personal prohibition was not justified “as well as” the senior role sanction the panel meant that it did not think that the personal prohibition was justified given that Mr Bhatti was already the subject of the senior role sanction. In other words the panel meant that “just the one sanction will suffice for Mr Bhatti”. If that was what the panel was trying to say I would have expected this to be much clearer within their reasons. This is an unnatural reading of the panel’s reasons. 124 I am fortified in the above by a “lessons learned” document dated June 2024 from the appeal panel. This document explains that “ [t]he Chair of the panel has had discussions and email exchanges with the panel members and the following points have been provided to the Head of Regulation for further consideration and action …Two malpractice cases were heard – one where sanctions were applied against the centre and the other where sanctions were applied against an individual”. One of the lessons learned by the panel was: “The panel felt that the malpractice case did not provide sufficient evidence that the individual was linked to the malpractice. The evidence supported that there was malpractice within the centre but not that the individual had known about it or been involved. The panel could not, therefore, reach a decision that even on the ‘balance of probability’ the individual should be sanctioned. In future cases, the panel members would find it helpful if the Pearson malpractice team could be more explicit in stating the evidence it has found/relied upon for applying sanctions, particularly in any future cases like this where the individual is not a Head of Centre in the usual way (because of the collaborative arrangement that was in place in this case).” 125 It seems from the above that the panel was of the view that Mr Bhatti had neither been involved in nor known about the malpractice found. The panel was also of the view that he should not be sanctioned. That would seem to be inconsistent with a decision that Mr Bhatti should not play a senior role in an approved organisation for 10 years. 126 In my judgement the reasons demonstrate that the panel intended that Mr Bhatti be free from sanction going forward. They did not realise that by not upholding the SSS appeal (in part) the “senior sanction” would remain in his case. 127 I address the appropriate remedy at §135-137, below. VII. GROUND FOUR (BIAS / APPEARANCE OF BIAS) 128 The final ground of claim alleges that there was an appearance of bias and/or “predetermination”. 129 The first basis for this relates to Mr Gibbons’ relationship with the panel members as demonstrated by the email referenced at §34 above. I have already said that Mr Gibbons should not have played the role he did with the MPC given the terms of the JCQ policy but this was cured by the appeal. 130 The Defendant also points to authority in other regulatory cases to the effect that the presence of an investigator during deliberations does not give rise to an appearance of bias provided they do not influence the deliberations or decision: see R (DM Digital Television Ltd v Office of Communications [2014] EWHC 961 at §45-47. This extends to the investigator preparing a draft decision providing it is the authorised panel that makes the decision and it is not merely rubber stamping the draft: see DM Digital at §44. 131 There is no evidence that Mr Gibbons played an improper role in relation to the appeal panel. As this claim must relate to the decision of the appeal panel, the complaint about the MPC does not take the Claimant anywhere. 132 The second element of the appearance of bias ground relates to the appeal panel’s refusal to require Pearson to give a “concise formulation” as to how it put its case. I do not consider that it is sustainable to argue that this is evidence of an appearance of bias. For the reasons set out above, the Defendant was sufficiently clear in how it put its case. 133 Finally, the Claimant submits that the chair indicating that there was sufficient evidence to proceed showed that the case had been pre-determined. For the reasons set out above I do not consider that to be a fair characterisation of the chair’s position. A tribunal is entitled to express a preliminary view upon a case. This will only be objectionable if that view indicates that the tribunal is approaching the case with a closed mind. 134 Even if the chair was indicating a preliminary view upon the merits of the case (which I doubt) it was clear from what he said that he was most certainly not approaching the case with a closed mind. This ground does not succeed. VIII. REMEDY 135 It follows therefore that the Claimant has succeeded only in relation to the reasons and rationality challenge concerning the senior role sanction that applies to Mr Bhatti. At the hearing I asked the parties what the appropriate remedy would be were this to be my decision. Ms Gannon asked that I give a declaration (I assumed that the effect of the appeal panel decision is that both sanctions are removed from Mr Bhatti’s record). Whilst conceding that the decision in relation to Mr Bhatti was unclear, Mr Steele did not make any submissions as to what the appropriate remedy would be if I found for the Claimant on this basis. I was told that his client interpreted the panel’s decision to mean that Mr Bhatti could not play a senior role within an approved organisation for 10 years. For the reasons set out above I consider that the Defendant is wrong in this regard. 136 I do not consider that any purpose would be served in remitting the matter for the panel to redetermine it as there is only one reasonable conclusion open to the panel given the terms of its decision, see also the lessons learned document in this regard. I also consider that it is in both parties’ interests that this case receive such finality as I can provide. I trust that this judgment will be sufficient to ensure that Pearson treats Mr Bhatti as being free from sanction including the ‘senior role sanction’ going forward and marks his record accordingly. 137 I have asked that the parties contact the court before judgment is handed down and the order is sealed should there be any disagreement in relation to what I have said in the paragraph above. In the event of disagreement, I will consider alternative remedies should this be necessary.