The Queen (on the application of London School of Science and Technology) v Pearson Education Ltd
| Jurisdiction | England & Wales |
| Judge | Ms Collins Rice |
| Judgment Date | 20 November 2019 |
| Neutral Citation | [2019] EWHC 3129 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/21/2019 |
| Date | 20 November 2019 |
[2019] EWHC 3129 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rowena Collins Rice
(Sitting as a Deputy High Court Judge)
Case No: CO/21/2019
Ms Zoe Gannon (instructed by Eversheds Sutherland LLP) for the Claimant
Mr Iain Steele (instructed by Fieldfisher LLP) for the Defendant
Hearing dates: 29 th October 2019
Approved Judgment
Introduction
The London School of Science and Technology (‘LSST’) is a private college offering courses leading to a range of higher and further education qualifications. It prides itself on recruiting students from less advantaged backgrounds and widening participation in education. Its Principal is Dr George Panagiotou.
Pearson Education Limited (‘Pearson’) is one of the UK's largest educational qualification awarding bodies. LSST was accredited to run courses leading to some of Pearson's academic and vocational qualifications.
In these judicial review proceedings, LSST challenges a process which led to the withdrawal of Pearson accreditation and to the imposition of additional sanctions on Dr Panagiotou, on grounds of malpractice.
Background
In 2017, Pearson received anonymous allegations about malpractice at a number of schools and colleges, including LSST. The allegations were both wide-ranging and specific. They related to matters such as improper recruitment processes, falsified attendance records, dishonest assessments and fraud.
Pearson investigated LSST. It made both announced and unannounced visits. It interviewed students, both on a sample basis and by following up some of the specific cases mentioned in the anonymous allegations. It examined records. It compiled a dossier of information. In the spring of 2018 it put this dossier to LSST on the basis that it suggested malpractice in its recruitment processes. It was said to show that enrolment tests had been answered faultily or by plagiarism, and that students were admitted without the basic proficiency in English needed to undertake the courses leading to Pearson qualifications. Dr Panagiotou responded on the specific cases highlighted, with context and explanations. Pearson was not satisfied.
After correspondence in which Pearson particularised the concerns and evidence and invited further explanation, and Dr Panagiotou responded, Pearson informed him on 6 th July 2018 that the matter was being referred to a Malpractice Committee to determine whether, on the balance of probabilities, malpractice had occurred and, if so, what sanctions were appropriate to be imposed on any individuals and/or LSST. The letter explained that written submissions could be made. Copies of the case summary and evidence pack going before the Committee were provided. At LSST's request, an expedited timetable was arranged.
Dr Panagiotou made brief written submissions on 23 rd July, addressing some of the context of the evidence relied on by Pearson, and plagiarism and English language proficiency in particular, and pointing to recent improvements. He suggested that, if there were any (isolated, historical) errors which were thought not to have been adequately explained by his representations, an action plan should be drawn up to address constructively any further improvements.
The 3-person Malpractice Committee convened on 30 th July 2018. It found that serious malpractice had occurred, on the basis of clear and substantial evidence of systemic failure in the integrity of recruitment processes. It determined that LSST accreditation should be removed. It also determined that Pearson would not consider any application for accreditation from Dr Panagiotou for ten years, and that he would, for that period, be barred from any involvement in the management and assessment of Pearson qualifications.
LSST appealed this determination by letter of 14 th August, on three grounds: that the decision was unreasonable on the evidence before the Committee; that further relevant evidence had come to light; and that the sanction was disproportionate to the seriousness of the malpractice. The appeal was heard by a 3-person Appeal Panel on 25 th September 2018. Dr Panagiotou attended with LSST's head of admissions and one of its governors. The Panel upheld the finding of serious malpractice, with particular reference to defects in the integrity of its admissions processes. It confirmed the withdrawal of accreditation from LSST. It reduced the period of the sanctions against Dr Panagiotou from ten years to five, in recognition of the ‘laudable’ intentions of LSST to broaden access and educational opportunities for under-represented sections of the community.
Legal framework and scope of these proceedings
Permission was granted for LSST to challenge these events in the High Court on the following public law grounds:
— that Pearson acted unfairly and unlawfully by failing to comply with its own policies and procedures;
— that decision-makers failed to take into account relevant considerations;
— that Pearson conducted its investigations into LSST, the Malpractice Committee and the Appeals Panel, in a procedurally unfair way.
These grounds were developed into seven specific heads of challenge, some of which turn on a distinction being made between the position of LSST and the position of Dr Panagiotou personally. Their respective positions are therefore considered separately below.
I was taken to a number of decided public law authorities on a range of issues relating to the role of courts in judicial review, and to procedural fairness, and in so far as they are relevant to the analysis set out below I have of course kept them in mind.
The relevant regulatory framework can be set out briefly. As a qualifications awarding body, Pearson operates within the statutory regulation regime of Ofqual, established by the Apprenticeships, Skills, Children and Learning Act 2009 (c.22). Ofqual publishes a handbook (‘the Ofqual Handbook’) which includes rules about how awarding bodies should manage allegations of malpractice. These require bodies such as Pearson to take all reasonable steps to prevent malpractice and maladministration in the development, delivery and award of qualifications; to establish, maintain and comply with written procedures for the investigation of alleged malpractice; and where malpractice is found, to prevent recurrence and take action against those responsible which is proportionate to the gravity and scope of the occurrence.
Pearson is a member of the Joint Council for Qualifications (JCQ), a professional association of qualifications awarding bodies. JCQ publishes, and updates annually, general regulations for approved centres such as LSST (‘the JCQ Regulations’) and a set of policies and procedures for dealing with allegations of malpractice, for the guidance of its members (‘the JCQ Guidance’). Malpractice is defined to include any act, default or practice which damages the authority, reputation or credibility of any awarding body or centre (that is, a college such as LSST) or any officer, employee or agent of such a body or centre. JCQ also publishes a guide to awarding bodies' appeals processes (‘the Appeals Guidance’). Pearson adopts the JCQ documents for the purposes of compliance with the Ofqual Handbook.
Pearson publishes a guide for accredited colleges called ‘Recruiting with Integrity’, aimed at ensuring fairness and consistency, and setting standards for recruiting to courses leading to Pearson qualifications. It points out that failure to comply may result in the withdrawal of accreditation. The standards expressly address English language competence.
Pearson also has a published policy on withdrawal of accreditation (‘Policy on the removal of centre and programme approval’). It deals with malpractice investigations and quality assurance (including significant failings in centre management). It also makes reference to the possibility of centre approval being withdrawn if Pearson loses confidence in senior management, where evidence brings into doubt the personal or professional integrity of a senior management team member, for example if they are convicted of a criminal offence. It says that decisions of this sort are taken by Pearson's centre management team, in consultation with their legal team and ‘responsible officer’, and that they are unappealable. Where appropriate, there will be discussions in such cases with the head of centre or other governing body about possible options other than loss of accreditation, including replacement of members of the senior management team.
Pearson monitors and reviews courses leading to its qualifications through an academic management review (‘AMR’) process. Its most recent AMR of LSST was in February 2018. It raised no concerns.
As well as accreditation by awarding bodies, LSST is supervised by the Quality Assurance Agency (‘QAA’), a non-statutory independent monitoring body which sets and reviews standards in the provision of higher education. The QAA sets standards about the recruitment of students, and conducts reviews of colleges. It reviewed LSST in December 2017 and confirmed that it met expectations in relation to recruitment.
The position of LSST
Of the seven heads of challenge made to Pearson, two are specific to the position of Dr Panagiotou and are considered below. The remaining five are of general application. They are:
i) that the case summary and evidence pack which went to the Malpractice Committee and the Appeal Panel contained irrelevant material;
ii) that relevant considerations were not properly taken into account;
iii) that the correct standard of proof was not applied;
iv) that...
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