AC-2024-LON-003094 - [2025] EWHC 2161 (Admin)

GROUND THREE (RATIONALITY)

The rationality ground closely tracks the reasons ground. There are six elements to this ground:

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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?

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.

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”.

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.

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.

I address the appropriate remedy at §135-137, below.