The King on the application of UK Curriculum and Accreditation Body T/a Scholars School System v Pearson Education Ltd

Hearing dates: 26 June 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on Monday 18 th Augst 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Matthew Butt KC:

I. INTRODUCTION

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.

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.

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.

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.

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.

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

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.

b. Relevant policy and guidance

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.

c. The Defendant's investigations

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...