Rapp, R (on the aApplication of) v The Parliamentary and Health Service Ombudsman & Anor [2015] EWHC 1344 (Admin)

Case No CO/1806/2014

[2015] EWHC 1344 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/05/2015

Before

MRS JUSTICE ANDREWS DBE

Between

THE QUEEN (on the application of DAVID RAPP)Claimant

THE PARLIAMENTARY AND HEALTH SERVICE OMBUDSMANDefendant

OFFICE OF QUALIFICATIONS AND EXAMINATIONS REGULATION (OFQUAL)Interested Party

Adam Straw (instructed by Matthew Gold and Company) for Claimant

Zoe Leventhal (instructed by Browne Jacobson LLP) for Defendant

Ivan Hare (instructed by Wragge Lawrence Graham & Co LLP) for Interested Party

Hearing Hearing dates: 7 May 2015

Judgment

[1]This is a claim for judicial review of a decision by the Defendant (“the Ombudsman”) dated 22 January 2014 to uphold the conclusions in her report of 23 August 2013 (“the Final Report”).

[2]The Final Report upheld certain aspects of the Claimant’s complaint about the Interested Party (“Ofqual”) and found maladministration which had given rise to injustice to the Claimant (“Mr Rapp”). It made recommendations to Ofqual and required it to pay Mr Rapp compensation. Ofqual accepted and implemented all those recommendations. Mr Rapp, however, is dissatisfied with the outcome and seeks to challenge the decision not to uphold one of his complaints, on the basis of an alleged material error of law. The Ombudsman and Ofqual resist the claim on the basis that it is fundamentally misconceived.

The background to the claim

[3]The background is set out in detail in paragraphs 45 to 87 of the Final Report. For the purposes of this judgment I need only refer to sufficient of it to explain how and why the Ombudsman reached the decision under challenge.

[4]In August 2008 Mr Rapp commenced employment with an organisation known as Flexible Training (“Flexible”) which provides training for the healthcare sector. In December 2008 Mr Rapp obtained an A1 Assessor Award which qualified him to assess NVQ candidates (“the qualification”). The awarding body was Edexcel, a private corporation regulated by Ofqual. Mr Rapp then began assessing NVQ candidates on a full-time basis.

[5]Despite obtaining the qualification, Mr Rapp became concerned about whether he possessed the relevant healthcare experience to assess certain of the units that he was being asked by Flexible to assess. He felt that he was not receiving sufficient support from Flexible, and because he had no background in healthcare he felt he was not competent to assess candidates against the criteria. Mr Rapp raised those concerns with Flexible, but they did not address them in a manner which satisfied him. In July 2009 he handed in his notice.

[6]Mr Rapp subsequently complained to Edexcel about Flexible’s practices. In his complaint he stated that he did not consider himself competent to assess candidates in the care sector, despite holding the qualification.

[7]On completion of its investigation into Mr Rapp’s complaint, Edexcel wrote to Mr Rapp on 17 March 2010 to inform him of their finding that the allegations he had made against Flexible had not been substantiated. They also stated:

“We have reviewed all the evidence available regarding your statement that you do not have the occupational experience to hold an A1 Assessor award for Care. The evidence leads us to the conclusion that while [Flexible]’s records show you achieved this qualification your own testimony against yourself gives us no option but to cancel your Level 3 Award in Assessing Candidates using a Range of Methods (A1 Award) certificate and qualification with immediate effect.”

The cancellation of his qualification by Edexcel meant that Mr Rapp was no longer able to work as an assessor.

[8]Mr Rapp responded by email on 19 March 2010 complaining that the investigation was flawed, and rejecting Edexcel’s findings, but he did not complain about the cancellation of his qualification at that time. On the contrary, he said:

“while I accept that I should not be an assessor, the true answer is far more critical. I should never have been placed in that position.”

[9]On 22 March 2010 Mr Rapp complained to Ofqual about Edexcel’s handling of his complaint, and its failure to take action against Flexible. The complaint made no reference to Edexcel’s decision to cancel the qualification. Ofqual commenced its own investigation into that complaint, naturally focusing on whether Edexcel was justified in concluding that there was no evidence of malpractice on the part of Flexible.

[10]In the course of that investigation, there was a meeting between Ofqual and Edexcel on 13 April 2010. The note of that meeting indicates that Edexcel explained to the Ofqual investigating officer how they had handled Mr Rapp’s complaint, and that the portfolios of the candidates he had assessed had all been reassessed to check that they were of a satisfactory standard. The assessments he had carried out whilst working towards his qualification had all been approved by an internal verifier. The Ofqual investigating officer asked for clarification over Mr Rapp’s claim that he was not competent to assess the NVQs in care, and Edexcel provided evidence to show that his training was sufficient to allow him to assess the units that Flexible said he had been assessing.

[11]The two parties then discussed what is recorded in the note as “the reasoning behind Edexcel withdrawing [Mr Rapp’s] qualification”. The note says that :

“it was argued that although there were strong doubts that Mr Rapp was competent to assess an entire NVQ in care, there was no evidence to suggest that he was not competent to (a) assess candidates and (b) assess them in the areas that he was responsible for. In fact there was evidence to the contrary in that he had achieved [the qualification] with no issues and had qualifications proving that he had undergone relevant training.”

[12]The Ofqual investigating officer’s evidence to the Ombudsman was that she did not appreciate at the time that the qualification had already been withdrawn, but she anticipated that Edexcel was going to withdraw it. She felt unable to make a judgment on whether it would or would not have been right for Edexcel to invalidate Mr Rapp’s qualification in these circumstances, in the absence of evidence of malpractice on the part of the training provider. She therefore decided to ask a more experienced colleague at Ofqual, Mr Skipworth, to discuss the matter with Edexcel.

[13]Unfortunately, as the Ombudsman later found, Mr Skipworth kept no note of any of his subsequent telephone conversations with Edexcel or of any advice that he gave them. Edexcel also failed to make a note. In consequence of this, there was no contemporaneous record against which to check the divergent accounts given about it by those concerned to the Ombudsman some years later.

[14]Mr Skipworth’s evidence to the Ombudsman was that, like his colleague, he had no knowledge that the qualification had already been withdrawn. He was under the clear impression that Mr Rapp wanted to surrender his qualification. Edexcel’s use of the term “cancel” (as opposed to “invalidate”) had implied that this was done at Mr Rapp’s request; and as this was not a regulatory matter, he would have provided no advice to Edexcel other than to say it was their decision to make. He said to the Ombudsman that he would not have objected to Edexcel’s actions, because there was nothing in the relevant regulations to prevent them from taking such action.

[15]By contrast, Edexcel told the Ombudsman that they had explained why they had made the decision to invalidate Mr Rapp’s qualification, and talked it through with Mr Skipworth, and that he had agreed with that decision. On Edexcel’s evidence, therefore, Mr Skipworth knew that it had been Edexcel’s initiative to take away the qualification.

[16]On 30 April 2010, Ofqual informed Mr Rapp that his complaint against Edexcel’s handling of his complaint against Flexible had not been upheld. In their letter they told him that Edexcel had confirmed with Flexible that he was only assessing units for which he had the necessary experience and qualifications, and that Edexcel’s investigation file contained copies of qualifications confirming his competency in those areas. He was also told that the portfolios he had originally assessed were subsequently reassessed and found to be at the level expected by Edexcel.

[17]On the same date, Mr Rapp sent a number of emails to Ofqual expressing his dissatisfaction with the outcome of its investigation, and requiring them to look into the matter again. He disputed that he was assessing only those units for which he was qualified, and claimed that he had been assessing whole NVQs. He asked why his certificate had been invalidated if he was qualified to assess, and said:

“if you are claiming that I am competent to assess then I require by return of post my A1 award.”

Once Mr Rapp had requested the return of the qualification, and Edexcel failed to return it, his further complaint to Ofqual was amended to include that issue.

[18]There were significant delays by Ofqual in dealing with Mr Rapp’s second complaint to it, which the Ombudsman later found amounted to maladministration, although she did not accept that Ofqual should have dealt with the matter immediately because they had to investigate the complaint before reaching conclusions on it. The reasons for those delays are irrelevant to anything I have to decide. On 4 February 2011 Ofqual responded to the further complaint, concluding that there was no substance in it. This response failed to satisfy Mr Rapp. At his behest, a senior manager of Ofqual then commenced an internal review into its handling of his complaints against Edexcel, which included consideration of the grounds for the withdrawal of his qualification and of the advice given by Mr Skipworth. Unfortunately that review was not as thorough or as careful as it should have been.

[19]Eventually, on 25 March 2011, Ofqual wrote to Mr Rapp to inform him of the outcome of its internal review. The senior manager dismissed most of his complaints, but concluded that Edexcel’s decision to invalidate his A1 Assessor Award “is not a decision that has any regulatory basis”. He explained that “this is because a qualification can only be invalidated where evidence of malpractice is substantiated.” Ofqual apologised to Mr Rapp, and said it had informed Edexcel that it should reverse its decision and return his certificate to him.

[20]On 28 March 2011, Edexcel returned the qualification certificate to Mr Rapp. The following day he emailed them to say that he did not accept the return of his certificate as sufficient to settle the matter.

[21]As the Ombudsman subsequently found, the outcome of Ofqual’s internal review in March 2011 proceeded on the fundamentally incorrect premise that the decision by Edexcel to invalidate Mr Rapp’s qualification had been taken after receiving guidance from Ofqual on the matter. In fact, Edexcel had already taken that decision and conveyed it to Mr Rapp long before Mr Skipworth became involved. In consequence of their failure to get the chronology right, Ofqual ended up wrongly accepting partial responsibility for Edexcel’s decision. The Ombudsman found that the failure by Ofqual to give an accurate explanation of their role in Mr Rapp’s certificate being cancelled amounted to maladministration (Final Report, paragraph 118).

[22]Mr Rapp could have sought judicial review of Ofqual’s final determination of his complaints, but instead he chose to make a complaint to the Ombudsman. Although this further complaint raised a number of matters, its main focus was on the complaint that through Ofqual’s actions in advising Edexcel to revoke the qualification, Mr Rapp was without it for over a year, and unable to work then or subsequently. Since the outcome of Ofqual’s internal review was based on a false premise, which had been communicated to him, Mr Rapp was unaware at the time when he complained to the Ombudsman that Edexcel’s original decision to revoke the qualification had nothing to do with Ofqual. He only found out the truth in consequence of the Ombudsman becoming involved.

The Ombudsman’s Final Report

[23]The Ombudsman carried out a thorough investigation into Mr Rapp’s complaint, to the extent that it concerned the behaviour of Ofqual. Her Final Report runs to 144 paragraphs. As it states in paragraph 4:

“Ofqual are the only organisation involved that we can look at. When considering remedy for injustice to Mr Rapp, we can take into account only the impact of Ofqual’s maladministration. We cannot reasonably ask Ofqual to provide a remedy for the impact on Mr Rapp of actions taken by [Flexible] or [Edexcel]. Nor can we reasonably ask Ofqual to compensate him for the impact of actions that they took without maladministration.”

[24]That is a very important statement of the parameters of the Ombudsman’s jurisdiction, because the root cause of Mr Rapp’s grievance is that Edexcel chose to take away his qualification in March 2010 and then failed to return it to him when he asked them to, at the end of April 2010. The Ombudsman had no powers to investigate the rights or wrongs of Edexcel’s actions. That was made crystal clear at the outset of the Final Report.

[25]After summarising her findings, the Ombudsman went into the history of the matter in some detail and set out the evidence that she had received. The Ombudsman then considered what had happened after the 13 April 2010 meeting and what, if any, advice was given by Mr Skipworth. In paragraph 105 she was highly critical of the failure of Ofqual to keep a record of Mr Skipworth’s discussions with Edexcel. She said it was :

“very poor practice and it means that we cannot now know exactly what advice was sought or given. While it might have been a relatively routine enquiry for Ofqual, the issue raised was clearly one with the potential to impact the individual about whom the enquiry was made because it had the potential to affect his ability to continue working as an assessor. Ofqual should have made a note of such a significant conversation. Failure to record that conversation was a failure to be “open and accountable” and that is sufficiently serious to amount to maladministration.”

[26]In paragraph 106 the Ombudsman then went on to describe the different accounts given to her by Mr Skipworth and the Edexcel representatives of their discussions in April 2010. In the passage that is at the heart of this claim for judicial review she stated as follows:

“The distinction between the words “cancel” and “invalidate” in this case is important, although I can understand why [Edexcel] might not have recognised that at the time. If Ofqual understood that Mr Rapp had asked to have his certificate cancelled, then they were correct to say that the regulations were silent on this matter and that the decision was the awarding organisation’s to make. If, however, Ofqual were told that [Edexcel] had invalidated Mr Rapp’s certificate, they should have discussed whether [Edexcel] had identified any malpractice on the part of [Flexible]. In these circumstances, Ofqual would have been informed that [Edexcel] had not found any evidence of malpractice and so their advice should have been that there was no reason to invalidate Mr Rapp’s certificate.” [Emphasis added]

[27]The actual determination of this aspect of Mr Rapp’s complaint appears in the following paragraph, 107, which is worth quoting in full: “Although there is a discrepancy between [Edexcel’s] and Ofqual’s accounts of the discussion about Mr Rapp’s certificate, we do not believe either party is being dishonest. It seems that [Edexcel] used the terms “cancel” and “invalidate” interchangeably, not appreciating that for [Mr Skipworth] who gave the advice, the two terms had very different meanings and would have affected the advice he gave. Partly due to Ofqual’s poor record keeping but also because of the time that has now passed and because [Edexcel] does not appear to have appreciated that there was a difference between these terms, we do not have sufficient evidence to find that Ofqual acted maladministratively when they gave advice to the awarding organisation. We do not, therefore, uphold this part of Mr Rapp’s complaint”. [Emphasis added].

[28]Thus what the Ombudsman found was that she had insufficient evidence to be able to reach a conclusion that whatever advice Mr Skipworth may have given to Edexcel after it had already withdrawn the qualification from Mr Rapp amounted to maladministration. That finding was plainly open to her, and whether or not this Court would have taken the same view, it is unimpeachable.

The claim for judicial review

[29]On behalf of Mr Rapp, Mr Straw submitted that the Ombudsman is subject to ordinary judicial review principles, and therefore she must not make a material error of law. His primary case was that the words in paragraph 106 of the Final Report that I have emphasised amounted to a determination by the Ombudsman that Edexcel had the power to cancel Mr Rapp’s award if he had voluntarily sought its cancellation. That was an error of law because Edexcel was not entitled to take away a certificate, once awarded, unless there was malpractice.

[30]The NVQ Code of Practice (“the Code”) provides that the regulatory authorities [Ofqual in this case] “can accredit qualifications which are permanent – once achieved, they are retained by the candidate.” Mr Straw submitted that “can” in this context means “can only”. The Code sets out a comprehensive system for dealing with instances of malpractice in the award of NVQs in paragraphs 73-81. In particular paragraph 79 requires the awarding body to inform the regulator whenever there is evidence that certificates may be invalid, and sets out the circumstances in which NVQ certificates are in principle deemed invalid. The awarding body must then agree the appropriate action with the regulator. The action to be taken is not prescribed by the Code, but if a decision is taken to invalidate certificates, paragraph 81 sets out the steps that the awarding body has to take.

[31]Mr Straw submitted that these are the only circumstances in which an awarding body is entitled to treat an NVQ certificate as invalid. Otherwise, the award is permanent. Where the decision to invalidate is made by the awarding body of its own initiative, that proposition appeared uncontroversial (and indeed the Ombudsman also appears to have proceeded on that assumption). However, Mr Straw contended that it follows from the permanent nature of the qualification and the absence of any express power in the Code to take it away in any other circumstances, that the recipient cannot relinquish it voluntarily, and the awarding body has no power to cancel it at his request. He contended that a “silent power” of cancellation would lead to inconsistency and lack of transparency, because there would be no means of ascertaining in advance, the circumstances in which an awarding body would agree to the qualification being cancelled.

[32]Mr Straw also submitted that a tacit power to cancel would infringe

Article 8 of the European Convention on Human Rights

by interfering in an individual’s private life by adversely affecting that person’s ability to work. The Ombudsman was required to act in a way which was compatible with Article 8. Whilst I can see that Article 8 might arguably be engaged if a claim were made against the awarding body for the unlawful “compulsory” withdrawal of a qualification which there was no reason to suppose was obtained by nefarious means, I have some difficulty in seeing how anyone could sensibly argue that Article 8 had been infringed if the awarding body concerned agreed to his own request to give up that qualification. In any event, the Ombudsman is not responsible for the withdrawal of the qualification or the failure to give it back. There is no arguable basis for the contention that the Ombudsman dealt with Mr Rapp’s complaint in a manner that was incompatible with Article 8.

[33]Mr Straw’s argument on the question whether Edexcel would have had the power to accede to a request by the person to whom a qualification had been awarded to relinquish that qualification voluntarily is an interesting one, but I do not need to determine it for the purposes of this claim for judicial review (let alone determine the ancillary, and perhaps more pertinent question whether Ofqual would have had any obligation to intervene in such circumstances). Indeed it would be wrong in principle for me to embark on that course, particularly in the absence of Edexcel, who I anticipate might be interested in making submissions about it. Suffice it to say that Mr Straw’s analysis is not self-evidently the only legitimate way of analysing the matter, and there is a perfectly reasonable argument to the contrary. However, I have proceeded to examine the merits of the claim for judicial review on the assumption in Mr Rapp’s favour that Mr Straw’s legal analysis is correct.

[34]Mr Straw submitted that the mistake under which Mr Skipworth said he was labouring should have made no difference to the advice that he gave. The Ombudsman should have held that, irrespective of any misapprehension on the part of Mr Skipworth as to which party initiated the cancellation, he should have told Edexcel that it could not withdraw Mr Rapp’s qualification. It was to be inferred from what happened in March 2011 that if Ofqual had said this to Edexcel, Edexcel would have returned Mr Rapp’s certificate to him as soon as he asked for it back. He submitted that the error of law was material because a finding that Mr Skipworth failed to give the correct advice might have led to a finding of maladministration. In support of that submission, he pointed to the impact that the continued withholding of the certificate had had on Mr Rapp and on his ability to work, and the fact that the Ombudsman had characterised the failure to take a note of the telephone conversations as maladministration, albeit that that was a far less serious matter than giving the wrong advice.

[35]Mr Rapp’s alternative position rests on a new ground for which permission was sought at the hearing. This was that if, as Ms Leventhal (for the Ombudsman) and Mr Hare (for Ofqual) contended, the Ombudsman did not make a finding on the issue of law, she should have done so, as it was impossible for her to reach a view on Mr Rapp’s complaint without taking that step. Moreover, her own policy at paragraph 2.3.5 states that:

“Our approach to determining complaints is to set out what should have happened, both in terms of general and specific standards (general standards are the Ombudsman’s Principles and any relevant public law provisions which place general statutory duties on all public bodies. Specific standards are the law, policy and guidance and established good practice relevant to our determination of the specific complaint… Use of the general and specific standards will inform our judgment about what should have happened.”

Mr Straw submitted that Mr Rapp’s complaint could not be determined without an understanding of the relevant regulations and policy, including in this case the NVQ Code of Practice. Although the Ombudsman does not determine legal rights and obligations in the same way as a court does, nothing in the case law undermines her normal public law duties not to misdirect herself on the law, or to fail to follow her own published policy.

The legal framework

[36]Before considering those submissions, it is necessary to say something about the legal framework governing investigations by the Ombudsman. The Parliamentary Commissioner Act 1967 (“the 1967 Act”) provides a broad discretion to the Ombudsman as to whether to investigate a complaint (s.5), the procedures for such an investigation (s.7) and as to her conclusions regarding maladministration and injustice. The public bodies subject to the Ombudsman’s jurisdiction, including Ofqual, are all listed in Schedule 2 to the 1967 Act.

[37]“Maladministration” is not defined in the 1967 Act. It will cover “bias, neglect, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on”. The list is open-ended, but the type of behaviour that qualifies concerns the manner in which a decision is reached or a discretion is exercised, rather than the merits of that decision or of the discretion itself: R v Local Commissioner ex p. Liverpool CC

[2001] 1 All ER 262

per Henry LJ at [3], adopting a passage in the judgment of Lord Denning MR in R v Local Commissioner for Administration for the North and East Area of England ex p. Bradford Metropolitan CC

[1979] QB 287

at 311-312.

[38]I was referred to a number of cases as to the nature and ambit of the role of the Ombudsman, including R v Local Commissioner ex p. Liverpool CC (above); R v Parliamentary Commissioner for Administration ex p. Balchin (No 1)

[1996] EWHC 192 (Admin)

[1998] 1 PLR 1

; R (Doy) v Commissioner for Local Administration

[2001] EWHC 361 (Admin)

, [2002] Env LR 11; Attwood v The Health Service Commissioner

[2008] EWHC 2315 (Admin)

; R (Maxwell) v Office of the Independent Adjudicator

[2011] EWCA Civ 1236

; and R(Mencap) v Parliamentary and Health Service Ombudsman

[2011] EWHC 3351 (Admin)

. The following general propositions can be extracted from that body of case law: i) The Ombudsman has no duty to determine questions of law. He/she is not acting as a surrogate of the court in determining whether there has been unlawful conduct, but rather, investigating a complaint of maladministration under the powers conferred on him/her by statute. ii) Maladministration is a different concept from unlawfulness; consequently in determining whether the conduct complained of amounted to maladministration, the Ombudsman is not constrained by the legal principles which would apply if they were determining whether that conduct was unlawful; iii) Unlawfulness is neither a precondition of, nor concomitant to a finding of maladministration; there may be maladministration without unlawfulness, and vice versa. iv) Even if, with the benefit of hindsight, it may seem obvious that the public body got something wrong, the Ombudsman must look at the question of maladministration on the basis of the information that the public body had at the relevant time, and not with the benefit of hindsight; v) It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration, whether there was a failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a court unless it reflects an unreasonable approach. vi) However the court will interfere if the Ombudsman fails to apply the standard that they say they are applying; vii) The question whether any given set of facts amounts to maladministration or causes injustice to a complainant is a matter for the Ombudsman alone. Whatever it may think about the conclusion reached, and even if it fundamentally disagrees with that conclusion, the Court may not usurp the statutory function of the Ombudsman. It can only interfere if the decision reached was irrational. viii) An Ombudsman’s report should be read fairly, as a whole, and should not be subject to a hypercritical analysis nor construed as if it were a statute or a contract.

[39]Therefore, even if what the relevant public body (in this case Ofqual) did or said turns out in hindsight to have been based on a misunderstanding of the law, it will not necessarily lead to a finding of maladministration by the Ombudsman, especially if the legal issue is not entirely straightforward and the mistake was an understandable one for a layman to have made.

The merits of the claim

[40]With those guiding principles in mind, I turn to consider the primary ground of challenge. This does not get off the ground unless Mr Straw is right that the Ombudsman took it upon herself to determine, and then did determine that Edexcel was legally entitled to cancel the qualification if Mr Rapp asked to surrender it voluntarily. Mr Straw’s argument therefore depends on the Ombudsman deciding(a) that Mr Skipworth had taken a view as to the legality of Edexcel’s actions in the (mistaken) belief that Mr Rapp had asked that the certificate be taken away from him; and

(b) that the view he took on the law was right, when in fact it was wrong. However, on a proper analysis, she decided neither of those things.

[41]The first matter that I have to consider is whether Mr Skipworth expressed a view about Edexcel’s powers. The next matter is whether the Ombudsman understood him to have done so, and decided that the view he took was legally correct (as opposed to being a view he was entitled to adopt in the circumstances, thus not amounting to maladministration).

[42]Mr Straw’s argument involves interpreting the phrase “it is your decision” as advice that “you are legally entitled to take the certificate away” – but it does not mean that at all. At most it means “you have to make your own mind up what to do.” Saying to Edexcel, in a scenario which appears to the Ofqual officer to fall outside Ofqual’s remit, “it is your decision” conveys no value judgment as to the rights or wrongs of what Edexcel is planning to do (or has already done). In my judgment, it cannot be interpreted as an approbation of Edexcel’s behaviour, let alone as advising Edexcel that it had the legal power to act in any particular way; quite the reverse. It is a refusal to become involved.

[43]As Mr Hare pointed out, Edexcel is a private body and Ofqual does not regulate every aspect of its business. Ofqual can only interfere with what Edexcel does or plans to do in accordance with its statutory powers of regulation. I agree with Mr Straw that Ofqual’s hypothetical conclusion and advice about the absence of reasons for taking the qualification away compulsorily would be informed by the specific provisions in the Code as to the circumstances in which a certificate can be invalidated by an awarding body. However, as Mr Skipworth pointed out to the Ombudsman, the Code says nothing about the voluntary relinquishment of a qualification after it has been conferred. Therefore, Ofqual as the regulator could not look at the Code and find something in it which would enable it to offer an opinion to Edexcel, as its regulator, as to what it should do in those circumstances.

[44]In the light of this, it would hardly be surprising if Ofqual were to take the view that it should not be concerned with what should happen if an individual wished to relinquish his qualification. On the face of it, that is an aspect of Edexcel’s behaviour which does not appear to fall within the ambit of Ofqual’s statutory and regulatory responsibilities. Indeed, one would not expect the decision whether or not to accede to the individual’s request to be a matter that is the subject of regulation, but rather, a matter of discretion to be exercised on a case by case basis. It is not a scenario that one would expect to arise very often, particularly if the individual is not the subject of direct regulation.

[45]It seems to me that what Mr Rapp is really complaining about is not what was actually said (or might have been said) to Edexcel, but what was not said. On Mr Rapp’s case, Mr Skipworth failed to appreciate that the only circumstance in which Edexcel could ever take away a certificate once it had been awarded was malpractice by the provider. Therefore he failed to give legal advice to Edexcel that it had no power to do what he believed it had been asked to do by Mr Rapp. However, Mr Skipworth was a layman, and I can see no reason for his embarking voluntarily on giving legal advice, especially on a matter which was not expressly covered by the relevant regulations.

[46]In any event, the evaluation of Mr Skipworth’s behaviour is not a matter for this Court; it was a matter for the Ombudsman, and her task was to determine whether his refusal to become involved amounted to maladministration, not whether his refusal was grounded in a mistaken view of Ofqual’s remit or Edexcel’s legal powers. The challenge in this claim for judicial review is not to Ofqual’s decision but to the Ombudsman’s, and there is nothing in the Final Report to suggest she ever turned her mind to the question whether Mr Skipworth gave (or should have given) legal advice to Edexcel, let alone what that advice was or should have been. Paragraph 106 of the Final Report does not even address the parts of the Code that Mr Straw took me to in order to try to make good his argument about the constraints on Edexcel’s powers. If the Ombudsman had reached a conclusion on a point of law, or considered the ambit of Edexcel’s powers, then I would have expected to have seen at least some cursory reasoning, but there is none.

[47]The relevant sentence in paragraph 106 of the Final Report cannot be construed like a statute or a contract. It must be viewed in context, and read in the light of the background that the Ombudsman had already explained in paragraph 4 that her jurisdiction did not extend to making any decisions about Edexcel’s behaviour and that she was solely concerned with Ofqual’s behaviour. It would have been contrary to the Ombudsman’s role, as well as directly contrary to what she said in paragraph 4, for her then to have embarked upon an investigation of (let alone a determination of) the lawfulness or otherwise of Edexcel’s behaviour, whether directly, or indirectly by reference to Mr Skipworth’s supposed evaluation of its lawfulness.

[48]In paragraph 5 of the Final Report, the Ombudsman made the findings that Edexcel made the decision to cancel the qualification in March 2010, that Ofqual were not involved in that decision and therefore “we cannot say that Ofqual were responsible for any injustice resulting from the withdrawal of the certificate.” It therefore follows that the focus of her investigation of the communications between Mr Skipworth and Edexcel, which took place thereafter, was on whether Ofqual should have advised Edexcel to give the certificate back, or given advice which would have prompted it to do so – in circumstances in which(a) Mr Rapp had not yet asked for it back,

(b) Ofqual were unaware that it had already been cancelled, and

(c) the underlying investigation by Ofqual in the course of which the advice was sought was solely concerned with whether Edexcel had been right to find that there was no evidence of malpractice on the part of Flexible.

[49]Paragraph 6 of the Final Report contains an executive summary of the findings which were later set out at greater length with supporting reasons in paragraphs 105-107. In that paragraph the Ombudsman made these specific findings, which I have listed and numbered: i) We cannot say what advice [Mr Skipworth] gave [Edexcel] because Ofqual failed to keep a record of that advice; ii) We found that [Edexcel] used the terms “cancel” and “invalidate” interchangeably, but those two terms had different meanings for [Mr Skipworth] and would have affected the advice he gave; iii) Partly because of Ofqual’s poor record keeping but also because of the time that has since passed and because [Edexcel] did not appear to have appreciated that there was a difference between those terms, we do not have sufficient evidence to find that Ofqual’s advice to [Edexcel] was maladministrative; iv) We do not find that [Ofqual] should have, at that point, advised [Edexcel] to reinstate Mr Rapp’s certificate. v) Therefore we cannot say that Ofqual were responsible for any injustice resulting from Mr Rapp’s certificate not being returned then. Significantly, there is no mention in paragraph 6 of the question whether Edexcel did or did not have the power to take away the qualification. That matter had no bearing upon the conclusion that the Ombudsman was unable to say what advice was given by Mr Skipworth, and for that, among other reasons, there was insufficient evidence to enable her to find maladministration.

[50]Paragraph 106 of the Final Report, in which the crucial sentence appears, must be read in the context of paragraphs 4 and 6 and of paragraph 105, in which Ofqual has already been criticised for failure to keep a note which meant that “we cannot now know exactly what advice was sought or given”. That is why, in a much later passage, at paragraph 135, the Ombudsman goes on to refute Mr Rapp’s argument that “had Ofqual not given incorrect advice, Mr Rapp’s certificate would have been returned in April 2010”. She says “We do not agree. We did not find that Ofqual gave incorrect advice in that telephone conversation.” That does not mean that there was a positive finding that Ofqual gave correct advice – the relevant finding was that it was impossible to say what, if any, advice was given.

[51]Paragraph 106 begins by recording the divergent accounts given by the protagonists. Understandably, there is no finding as to which of these is to be preferred – the Ombudsman has already said that she cannot do that, and explained why. The next passage then makes the point that the confusion as to who initiated the taking away of the certificate would have had a bearing on whether Mr Skipworth took the view that this was a matter for Ofqual to become involved in – mirroring the finding in paragraph 6 that the terminology used by Edexcel would have affected the advice that he gave.

[52]It is in the light of those fact-findings and in that specific context that the Ombudsman then says:

“If Ofqual understood that Mr Rapp had asked to have his certificate cancelled, then they were correct to say that the regulations were silent on this matter and that the decision was the awarding organisation’s to make.”

That position is then contrasted with the alternative hypothesis that Ofqual understood that Edexcel proposed to invalidate the certificate, in which event, “its advice should have been that there was no reason to invalidate the certificate” [because there had been no finding of malpractice].

[53]A statement that there is no reason for taking a proposed course of action is quite different from a statement that there is no power to take that course of action, or that it would be unlawful to take it. So the Ombudsman is not saying that even on the second of her alternate hypotheses, Mr Skipworth should have given legal advice to Edexcel. She is merely saying that he should have advised them that there appeared to be no justification for what they proposed to do - because the factual basis upon which the regulations specify that an awarding body may invalidate a qualification would not have been established. That helps to inform the understanding of what she meant in the earlier sentence upon which Mr Straw’s legal argument is based. It suggests that the Ombudsman’s focus was (quite properly) on whether Ofqual should have got involved in advising Edexcel what to do, or given them assistance in making their minds up, bearing in mind that Ofqual mistakenly believed that Edexcel had not yet taken the certificate away – and whether the failure to get involved in those circumstances would have amounted to maladministration.

[54]In my judgment, the Ombudsman’s comment that on the hypothesis that Ofqual thought that Mr Rapp wanted to return the certificate “they were correct to say... that the decision was the awarding organisation’s to make” is a finding that Ofqual’s behaviour in refusing to become involved would have been justified in those circumstances, not a finding that it came to a correct conclusion on any matter of law. She is saying no more than that if Mr Skipworth was labouring under that misapprehension as to how the question of cancellation arose, he would have been entitled to take the view that it was not a regulatory matter for Ofqual, and thus his failure to tell Edexcel that “there was no reason for it to cancel the certificate” (which he should have said if he knew the true situation) would not have amounted to maladministration.

[55]Even if, by using the word “correct”, the Ombudsman is indicating agreement with Mr Skipworth’s view that the decision was purely a matter for Edexcel, she is not making a value judgment on any legal issue. That was not her remit here. All that the Ombudsman needed to determine was that it would not have been maladministration for Mr Skipworth to have behaved as he said he did in those circumstances – although she was unable to decide on the evidence whether that was what actually happened. It was well within the Ombudsman’s remit to decide that Mr Skipworth would have been entitled to take that view of the scope of the regulator’s role – irrespective of whether it transpired in the light of hindsight, and after hearing full legal argument, that he was wrong. For the purposes of her decision it really did not matter whether the Ombudsman shared the view that Mr Skipworth took.

[56]In fact, the question whether Ofqual would have had the power as a regulator to interfere if Edexcel acceded to a voluntary request to give up a qualification is a difficult, and entirely separate, question from whether Edexcel would have been legally empowered to accede to such a request. Both these points are academic because no such request was ever made by Mr Rapp, and the actual situation confronting Ofqual was a decision by Edexcel to withdraw the certificate in the absence of any malpractice. The only reason for considering how Ofqual should have reacted when approached to advise Edexcel on the alternative scenario, which never arose in fact, was to enable the Ombudsman to determine whether Mr Skipworth’s behaviour could be castigated as maladministration if he was labouring under the factual misapprehension that he claimed he was. Her decision that it could not be regarded as maladministration was a matter for her, and that decision was not unlawful.

[57]In summary, it was unnecessary for Mr Skipworth to resolve a complex legal argument about Edexcel’s powers in a situation that he mistakenly believed to have arisen, in order to decide that the situation which he believed he was being asked to advise on was not a matter for Ofqual, and he did not do so. Still less was it necessary for the Ombudsman to resolve that legal argument herself in order to take a view on whether she had sufficient evidence before her to conclude that Mr Skipworth was guilty of maladministration, and she did not do so. There is nothing in her reasoning to suggest she even applied her mind to the point. Thus the primary way in which Mr Straw put Mr Rapp’s case falls at the first hurdle. There was no error of law in the determination, let alone a material one.

[58]The alternative way in which Mr Straw sought to put Mr Rapp’s case by way of late amendment to the Grounds of Claim cannot rescue the claim. I shall avoid any procedural complications by granting permission, but the argument lacks merit. The short answer to the point is the one that I have just made – namely, that it was unnecessary for the Ombudsman to determine whether Edexcel had the power to cancel the certificate if Mr Rapp sought to relinquish it voluntarily, in order for her to decide whether there was or was not sufficient evidence to find maladministration on the part of Ofqual. There is nothing in the Final Report to suggest that the Ombudsman had an inadequate understanding of the relevant legal standards governing Ofqual, with whose actions she was concerned. There was no duty upon her, whether as a matter of law or pursuant to her own policy, to make any findings as to Edexcel’s legal powers, let alone to make a positive finding that Ofqual should have determined that Edexcel had no power to cancel the qualification even if Mr Rapp requested it to, and so advised Edexcel.

[59]In the Final Report at paragraphs 27-43 the Ombudsman set out the relevant standards and regulatory framework including (at paragraph 32) the basis on which an award of an NVQ can be invalidated. She specifically considered whether Ofqual had fallen below the relevant standards, and in paragraph 107 she concluded that there was insufficient evidence that it had. She applied her own policy and the standards she said she intended to apply. The alternative ground of challenge is not established.

[60]For the reasons stated above, and not without a degree of sympathy for Mr Rapp, this claim for judicial review is dismissed.