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

THE FACTS

In order to understand the claim it is necessary to set the factual background out in a little detail.

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.

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.

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.

As part of its quality assurance process, Pearson sent external examiners to audit centres and subsites such as CBC and SSS.

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.

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.

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.

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.

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

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.

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

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

The appeal panel has the power to remake the decision or remit the case back to the MPC.

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.

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.

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.”

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.

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.

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.

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”

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.”

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.

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.

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.

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.

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.”

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!”

“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.

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.

The MPC’s findings relevant to SSS/Mr Bhatti included the following:

In terms of sanction the MPC’s decision in relation to SSS was as follows:

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.”

There were also sanctions against CBC including removal of collaborative arrangements. Mr Hadawi was subject to a similar sanction to Mr Bhatti.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.”