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

GROUND TWO (REASONS)

Ground two is a challenge to the reasons provided by the appeal panel.

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).

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.

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.”

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).

Non legally qualified panels are entitled to a degree of benevolence when considering their reasons: Corkish v Wright [2014] EWHC 237 (Admin) at §12.

The Claimant advances five challenges to the appeal panel’s reasons. These are:

There is substantial overlap between this ground and ground 3 (rationality).

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.

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.

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.

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.

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.”

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”

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.

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.

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.

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.

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.

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.

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.

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.

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.