TC09497 - [2025] UKFTT 00460 (TC)

Mr Constable’s evidence was that the principal marketing of the GM product was through online sources which through search engine optimisation would lead potential customers to the ConquerMaths landing page. We were shown screenshots of various landing pages. We were told that some of these were landing pages which the pupils would encounter rather than those which their parents would encounter. We were also shown an example of the landing page which the parents would encounter. Mr Constable and Mr Hunter’s evidence was that the landing pages for the pupils did not mention assessments because using words such as assessment or test would be off putting to pupil. Hence GM accepted that the landing pages for pupils might be perceived as downplaying the assessment elements of the ConquerMaths offering. The two screenshots we were shown that we understood to be the pages aimed at pupils indeed did not mention assessments. The wording of these pages included phrases such as “making maths fun and understandable”, “welcome to ConquerMaths the premier online maths tutor”, “our innovative online tutoring system allows children to learn at their own speed removing the pressure often associated with traditional classrooms and tuition”, “the award-winning way to learn and revise maths at any age”. All of this was suggestive that the product was a teaching tool.

We were also taken to a screenshot of a page which we understood was intended to attract parents to purchase the product for their children. This also seemed to us to predominantly present ConquerMaths as a learning or tutoring product. Mr Constable confirmed the screenshot was a summary of what the GM offering was, designed to attract parents and teachers to understand the full benefits of the ConquerMaths programme. The page included wording such as “the online maths tutor for students of all ages”, “diagnoses gaps in maths knowledge - teaches the right lessons - tests understanding”, “ConquerMaths helps to find those gaps in knowledge then teaches the right animated and narrated maths lessons to correct any problems”, “an excellent maths teacher. ConquerMaths have teamed up with Pat Murray, a truly excellent maths teacher who presents each lesson in a friendly step-by-step manner. The lessons are concise and logical making them really easy to retain which gives students that important confidence in their ability”, “an expert maths teacher available day or night to help with homework, revision or to recap missed or misunderstood lessons”. Although the screenshot does include words and phrases such as “diagnoses” and “free diagnostic tests”, we did not find there to be a material difference between the phraseology of this page (which GM asserted was designed for parents and teachers) and the pages designed for pupils. In both cases the description of the ConquerMaths product included phraseology which indicated it was, or substantially included, teaching and tutoring elements. The page we were shown does not use the word “assessments”.

Therefore our conclusion was that the consumer perception of the ConquerMaths product was that it was a teaching tool designed to improve the understanding of maths of those using it. While we accepted that the product included a very large number of diagnostic tests, we were not persuaded that consumers, whether they were teachers, parents, or pupils, would perceive it as a product that primarily provided an assessment of maths abilities, even if it did consist mainly of diagnostic tests. We found that consumers (parents, pupils, or teachers) would perceive ConquerMaths as a teaching product designed to enhance the users’ understanding of maths.

Although it did not form part of his evidence, Mr Khokhar accepted in his closing submissions that one way in which a pupil's maths proficiency might improve was simply by doing assessments. If that proposition is correct then, even if consumers did regard the GM offering as consisting primarily of assessments (which we did not think was likely to be the consumer’s perception), the product would still be regarded by the consumer as being designed to improve the understanding of maths of those using it. It seemed to us that, if consumers had been told the product consisted of assessments and that by doing these tests the pupils understanding of maths would be enhanced, then the consumers would still regard it as essentially a teaching tool/revision aid albeit one that involved doing tests. When it was pointed out that this was unhelpful to GM's case, Mr Khokhar rather unconvincingly attempted to row back from his acceptance that doing tests might improve maths proficiency. We considered that his initial acceptance was in fact closer to the truth.

Mr Khokhar encouraged us to take the view that parents would do considerable due diligence on a product like ConquerMaths because of the importance of their child passing maths exams at various stages, the consequence of failure potentially being life changing. This was unsupported assertion. In any event we considered that if a parent looked “under the bonnet” to see what ConquerMaths consisted of, they would see that ConquerMaths included many diagnostic tests but in the context of a desire for their child to pass exams and the expectations set by the ConquerMaths web page, we considered that the well informed parent would (correctly in our view) believe that the diagnostic tests leading to the resulting analysis of the pupils strengths and weaknesses were a means of teaching not an end in themselves.