Upper Tribunal (Administrative Appeals Chamber)

Dorset Healthcare NHS Foundation Trust v. MH [2009] UKUT 4 (AAC)

IN THE UPPER TRIBUNAL Appeal No M/3592/2008

ADMINISTRATIVE APPEALS CHAMBER

Before: Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal (His Honour Judge Gary Hickinbottom CP, His Honour Judge Phillip Sycamore CP and Upper Tribunal Judge Mark Rowland)

Attendances:

For the Appellant: Bridget Dolan of Counsel instructed by Beachcroft LLP

For the Respondent: Paul Bowen of Counsel instructed by Peter Edwards Law

Decision: There be no decision on the appeal.

REASONS FOR DECISION

Introduction

1. This was an appeal from the First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health) against an interlocutory decision of 7 November 2008 directing disclosure of a detained patient's medical records and a decision of 12 November 2008 at which the tribunal refused to review that decision. Permission to appeal was granted by the tribunal below.
2. The appeal raised important issues concerning the proper approach of NHS Trusts and other authorities holding patients' medical records (which collectively we shall refer to as "responsible authorities") where, in the context of an application in respect of a patient, they receive a request for disclosure of that patient's medical records but consider that the records contain material supplied by third-parties which the responsible authorities consider is the subject of an obligation of confidence owed by them to those third-parties.
3. The circumstances in which the appeal has arisen are set out below (paragraphs 9 and following).

Jurisdiction

4. The first issue that arose was whether this tribunal had jurisdiction to entertain the appeal at all. In the light of Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262, Secretary of State for Work and Pensions v Morina [2007] EWCA Civ 749; [2007] 1 WLR 3033 and the decision of a Tribunal of Social Security Commissioners in CHR/3865/2005, we invited the parties to address us as to the scope of the right of appeal conferred by section 11 of the Tribunals, Courts and Enforcement Act 2007 given that, in each of those cases, it was made plain that not every determination of a Social Security Commissioner or a tribunal with jurisdiction in social security matters was a "decision" against which an appeal lay under social security legislation (sections 14 and 15 of the Social Security Act 1998 and their forerunners) which, like sections 11 to 14 of the 2007 Act, provided for appeals on points of law from one tribunal to a superior tribunal (a Social Security Commissioner) and from there to an appellate court.
5. Section 11(1) and (2) of the 2007 Act provides:

"(1) For the purposes of subsection (2), the reference to a right of appeal is to a right of appeal to the Upper Tribunal on any point of law from a decision made by the First-tier Tribunal other than an excluded decision.

(2) Any party has a right of appeal, subject to subsection (8)."

Section 13, which provides for a right of appeal from a decision of the Upper Tribunal to the relevant appellate court, is in similar terms. Sections 11(5) and 13(8) list types of decisions that are "excluded decisions".

6. Ms Dolan, with whom Mr Bowen agreed on this issue, primarily submitted that the 2007 Act could be distinguished from the earlier social security legislation because specific provision is made for excluding decisions from the scope of a right of appeal, which implies that decisions that have not been so excluded are within its scope. Thus, for instance, a decision of the Upper Tribunal refusing permission to appeal to the Upper Tribunal is excluded from the scope of the right of appeal under section 13 by section 13(8)(c) - and so there is no need to resort to a narrow construction of the word "decision" to achieve that effect, as was done in Bland. Section 11(5)(d) and (e) exclude from the scope of section 11(2) certain parts of decisions of the First-tier Tribunal made, or set aside under, section 9 and the Lord Chancellor has the power to exclude other decisions by order under section 11(5)(f), which power has not been exercised to exclude any classes of interlocutory decisions.
7. Alternatively, Ms Dolan relied upon a narrower ground. She drew attention to the short judgment of Sir Anthony Clarke MR in Morina where he said at [50]:

"I add a few words only to emphasise the point made by Arden LJ that the question is entirely one of statutory construction of a particular statutory provision, namely section 14 of the Social Security Act 1998. In some contexts the word "decision" might well include an interlocutory decision such as a refusal of an adjournment or an order to disclose documents. All depends upon the particular circumstances. In the particular context of section 14 of the 1998 Act, I agree that neither of the decisions complained of were appealable."

She submitted that this case concerns interlocutory decisions ordering disclosure of documents, and was therefore distinguishable from Bland, Morina and CHR/3865/2005 which were all concerned with attempts to appeal against an appeal filter (whether a refusal of leave to appeal, a refusal to admit a late appeal or a decision to strike out an appeal against an unappealable decision of the Secretary of State). Whilst she accepted that it would very often be appropriate to refuse permission to appeal against other types of interlocutory decision, she submitted that such decisions are usually appealable in principle even on the basis laid down by these cases under previous legislation.

8. In the circumstances of this case, this issue could not entirely deprive us of jurisdiction in any event because, if there is no right of appeal, we could treat the appeal as an application for permission to apply for judicial review and waive the requirement to serve the First-tier Tribunal (such challenges by way of judicial review having been transferred from the Administrative Court to this tribunal: Lord Chief Justice's Practice Direction: Classes of Cases Specified under Section 18(6) of the Tribunals, Courts and Enforcement Act 2007, 31 October 2008). However, although for reasons we shall explain later we do not consider that permission to appeal should have been given in this case, we are content to accept that we do have jurisdiction to hear this appeal. It is unnecessary for us to consider Ms Dolan's primary submission because we accept that there is in any event no ground for construing section 11 in such a way that an interlocutory decision to direct disclosure is not within its scope. This is important, because an adequate remedy may not be available through an appeal against a final decision, by which time irreparable damage may already have been done through disclosure. This distinguishes the present case from Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 (reported as R(IB) 6/03), which is referred to in Morina and in which it was held there was no right of appeal against the refusal of an adjournment in a social security case. In the meantime, Ms Dolan's wider ground will have to await consideration in another case in which it is determinative, and in which it is fully argued.

The Background

9. The Respondent patient (MH) was detained pursuant to section 3 of the Mental Health Act 1983 and made application to the First-tier Tribunal (Health Education and Social Care) (Mental Health) for discharge from detention. Those proceedings were stayed by the First-tier Tribunal on 12 November 2008 pending the outcome of this appeal brought by the NHS Trust. However, during the course of submissions we were informed that MH had been discharged from the section and was, at the time of this hearing, the subject of a community treatment order made under section 17A of the 1983 Act. MH had not made any application to the tribunal in relation to the community treatment order. It was agreed by the parties - in our view, quite correctly - that the appeal had therefore necessarily lapsed, and there was no order we could make that would have any practical implication for these parties. For these reasons, formally we shall make no order on the appeal.
10. However, the parties requested that we consider in any event giving guidance to responsible authorities who receive requests for disclosure of medical records under the 2007 Act scheme. Such requests are very common in the context of applications relating to patients and, we were informed, can cause considerable difficulties for authorities and potentially delay the substantive tribunal proceedings. We therefore agreed to give such guidance as we properly could, and heard full submissions in relation to the issues raised.

The Proper Approach to Requests for Disclosure of Documents

11. The particular issue relates to the procedure which should be followed in circumstances in which confidential third-party material is contained within a patient's medical records and the responsible authority either:

a) resists disclosure of the third-party material to the patient, but is content with disclosure limited to the patient's solicitors, or

b) resists any disclosure of the third-party material, even to the patient's solicitors.

12. In the case before us, the NHS Trust agreed by letter of 3 November 2008 to disclosure of all of the patient's records with the exception of ten A4 sheets which they withheld. As a consequence of that letter, the patient's legal representative made an application to the First-tier Tribunal for full disclosure of all of the records, by a faxed letter dated 5 November.
13. Whilst we appreciate that the substantive application to discharge the patient in this matter was urgent, and speed was therefore important, we consider that the immediate issue of an application may have been premature. Rule 2 of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) ("the 2008 Rules") sets out the overriding objective of the Rules as follows:

"(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must—

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Tribunal generally."

Those provisions therefore impose an express obligation upon the parties to assist in the furtherance of the objective of dealing with cases fairly and justly, which includes the avoidance of unnecessary applications and unnecessary delay. That requires parties to cooperate and liaise with each other concerning procedural matters, with a view to agreeing a procedural course promptly where they are able to do so, before making any application to the tribunal. This is particularly to be expected where parties have legal representation. Parties should endeavour to agree disclosure issues without the need for the tribunal to make a ruling. However, even where a direction from the tribunal may be required (for example, where a responsible authority holding medical records requires an order for the disclosure of medical records to overcome issues of confidentiality or arising from the Data Protection Act, or where there are genuine issues as to how most appropriately to proceed), it will assist the tribunal to further the overriding objective if the parties can identify any directions they are able to agree, subject to the approval of the tribunal. Where they are unable to agree every aspect, this liaison will at least have the advantage of crystallising their positions, and more clearly identifying the issue(s) upon which the tribunal will have to rule. We stress that, in the context of an urgent application in the mental health jurisdiction, this liaison between the parties must not lead to any unavoidable delay.

14. In any event, in the case before us an application for full disclosure was made in the circumstances we have outlined. On 7 November, Deputy Regional Tribunal Judge Anthony Harbour made a direction for disclosure in the following terms:

"1. Further to [the patient's solicitor's] application for access to her client's medical records, and by virtue of my powers under rule 5 of [the 2008 Rules], [the solicitor] must be granted full and unfettered access to all her client's medical records, including any third-party material which is purported to fall within the meaning of s7(4) of the Data Protection Act 1998, and any material which is purported to fall within Data Protection (Subject Access Modification) (Health) Order 2000, SI 2000/413 (SAMO Health) or Reg. 5(1) Data Protection (Subject Access Modification) (Social Work) Order 2000, SI 2000/415 (SAMO Social Work).

2. Any of the above material that the trust believes should not be disclosed to [MH] by virtue of rule 14 of the [2008 Rules] (because disclosure "would be likely to cause that person or some other person serious harm") shall not be disclosed by [the solicitor] to her client until the tribunal has made a ruling on non-disclosure, but it shall be disclosed to [the solicitor] in full, by virtue of Rule 14(5), in any event."

15. The power to make such a direction is found in rule 5(2) and (3)(d) of the 2008 Rules, which provides:

"(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—

……..

(d) permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party;

…….."

16. This order was made by the judge without him seeking any representations from the NHS Trust. In most cases, under the 2008 Rules a standard direction for disclosure issued in this way without reference to the responsible authority holding the relevant records will be appropriate; because rule 6(5) provides a mechanism to enable a party to challenge such a direction. That rule provides:

"(1) The Tribunal may give a direction on the application of one or more of the parties or on its own initiative.

(2) An application for a direction may be made—

(a) by sending or delivering a written application to the Tribunal; or

(b) orally during the course of a hearing.

(3) An application for a direction must include the reason for making that application.

(4) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send written notice of any direction to every party and to any other person affected by the direction.

(5) If a party, or any other person given notice of the direction under paragraph (4), wishes to challenge a direction which the Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction."

17. No such application was made by the NHS Trust in this case. In our view, an application under those provisions was clearly the appropriate course. It would have enabled the First-tier Tribunal to consider the representations of the NHS Trust on that issue and to make any alternative direction it considered appropriate in the light of those submissions: and may have avoided the need for the further procedural steps in relation to disclosure which have in fact taken place. Instead, the NHS Trust applied, on 11 November, for a review of the decision of 7 November under section 9 of the 2007 Act, without reference to rule 49(1) of the 2008 Rules.
18. The matter appears already to have been set down for hearing, which was held before a tribunal of three on 12 November. At the hearing, the tribunal considered reviewing the earlier decision; but decided that it should not do so, saying that: "….the direction was made competently and by the Tribunal at a level of authority equivalent to (or greater than) that which we enjoy today…". The tribunal decided that the matter should be referred to the Upper Tribunal for a determination on the issue of disclosure. In the event the Tribunal stayed the proceedings and subsequently, by e-mail, purported to give permission to appeal its decision of 12 November.
19. With respect, we do not consider the tribunal ought to have been as timid as it was. At that hearing, the tribunal was properly placed to reconsider the issue of disclosure under rule 5(2), if no application had been made by any party under rule 6(5), and the tribunal ought either to have done so or to have treated the NHS Trust's application as having been made under rule 6(5). The case management powers under rule 5 are wide-ranging, and provide tribunals with a powerful armoury to further the overriding objective of dealing with cases fairly and justly under rule 2. Tribunals have the appropriate experience and expertise to use these powers with confidence, and they should do so. In this case, there was no question of seniority which made it inappropriate for the tribunal on 12 November, in the light of submissions from the NHS Trust, to consider taking a different view from that taken by Judge Harbour without such submissions. Generally, of course judges ought not lightly reverse each other's decisions; but rules 5(2) and 6(5) are plainly designed to enable directions to be set aside or varied where circumstances require, as they may well do where applications are made on paper and are not initially the subject of full argument. The tribunal ought to have taken these procedural matters in hand and not, at least at that stage before it had reached a proper conclusion and been challenged, have simply referred the matter to the Upper Tribunal by way of permission to appeal. In fact, as it transpires, had the tribunal taken that approach it would probably have discovered that there was no real dispute between the parties, because the NHS Trust was prepared to disclose the documents to the patient's solicitor (albeit not on the basis contemplated by Judge Harbour's direction) and the appropriate undertaking would have been forthcoming. Only if the patient's solicitor had then thought it necessary to disclose a document to the patient would the tribunal have had to consider a contested matter, and a further ruling in those circumstances was something that the direction had anticipated.

Guidance

20. The starting point is that full disclosure of all relevant material should generally be given (see, for example, R (Roberts) v Home Secretary [2005] 2 AC 738). In most cases that does not present any difficulty, and disclosure is given (as it should be) by agreement between the parties and without recourse to the tribunal.
21. However, the Rules recognise that in certain circumstances it is undesirable or inappropriate for disclosure to be given to a patient.
22. In addition to the wide general case management powers in rule 5, rule 14 of the 2008 Rules enables a tribunal to make an order prohibiting the disclosure of documents, e.g. where disclosure would be likely to cause serious harm to the patient or some other person. This is specifically provided for in Rule 14(2)-(6) of the 2008 Rules, which sets out a detailed procedure for such cases:

"(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—

(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

(3) If a party ("the first party") considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party ("the second party"), the first party must—

(a) exclude the relevant document or information from any documents that will be provided to the second party; and

(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

(4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2).

(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that—

(a) disclosure to the representative would be in the interests of the party; and

(b) the representative will act in accordance with paragraph (6).

(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal's consent…"

There was a similar procedure under the predecessor provisions (in the Mental Health Review Tribunal Rules 1983), although a different test was provided for, namely:

"….the tribunal shall consider whether the disclosure of such documents would adversely affect the health or welfare of the patient or others……"

23. However, rule 14 does not provide the only procedure by which disclosure of documents can be withheld. The medical records of many patients contain documents from third parties which, irrespective of any harm to the patient that may ensure from their disclosure, may be sensitive. For example, a relative of a patient may provide details of his/her own medical condition which may be relevant to that person's ability to look after the patient if the patient were returned home: or simply set out reasons why, if the patient were returned home, relatives or potential carers would be unable to cope. Sometimes such documents are submitted to the responsible authority holding the medical records with an express requirement that they be kept confidential from the patient (and sometimes also from even the patient's solicitors). In any event, that authority often considers, rightly, that it owes a duty of confidence to the relevant third-parties and is unwilling to disclose documents to the patient (and occasionally even to the patient's solicitors) without an order. If the documents are relevant to the issues in an application made by the patient (as they usually will be), leaving aside the various common law and statutory obligations that fall on the responsible authority holding the medical records, there is an obvious potential tension between the Article 6 rights of the patient and the Article 8 rights of the third parties, and it is important that all of these rights are properly considered and maintained (see R (B) v Crown Court at Stafford [2007] 1 WLR 1524, especially at [23]). What is the correct approach in these circumstances?
24. As we have already observed, in dealing with such a situation the parties should first do all they can to agree the approach to be adopted and avoid applying to the tribunal unless it is essential. Disclosure does not and should not present a problem in the vast majority of cases.
25. Given the general rule in favour of full disclosure the burden will be on the responsible authority to demonstrate that it is appropriate to withhold disclosure of any particular documents.
26. Where there are third-party documents which the responsible authority considers may be confidential to the third-party, then, where this is practical, the authority may seek the relevant third parties' consent to disclosure. However, this may not be practical because of the delay that would be involved in identifying and locating the third parties.
27. In most cases where there are confidential third-party documents, it should be possible for the responsible authority to disclose all such documents to the patient's solicitors subject to an undertaking from the solicitors not to disclose to the patient third-party documents specifically identified by the authority. The solicitors can then take a view as to whether the third-party rights override the rights of the patient, or vice versa. Where they consider the documents ought to be disclosed to the patient, then they must make an application to the tribunal for disclosure.
28. In other circumstances, the responsible authority may take the view that the documents are so sensitive that they should not be disclosed even to the solicitors or they are unable to rely on an undertaking that the representative will not disclose to the patient documents received. However, an undertaking from a solicitor (who owes a duty to the tribunal) will only not be acceptable in quite exceptional circumstances.
29. Where a responsible authority seeks to avoid disclosure of documents even to the patient's representative, then it should submit a skeleton argument setting out the reasons for resisting disclosure and should identify the documents in question. The skeleton argument, but not the documents, should be served on the patient's solicitors who will be given an opportunity to respond in writing.
30. In circumstances in which the responsible authority has served all of the documents on the solicitors subject to an undertaking, and the solicitor then wishes to disclose the documents (or some of them) to the patient, the procedure will be reversed; and the patient's solicitor should submit a skeleton argument setting out why it is considered appropriate to disclose the documents to the patient and the authority will be given the opportunity to respond in writing.
31. Where the exchange of skeleton arguments does not resolve the issue, then an application to the tribunal will be necessary. Where a patient's solicitor is seeking permission to disclose documents to a patient, then the application should be made by that solicitor: if a responsible authority is seeking to deny disclosure to even the patient's solicitor then the application should be made by the authority.
32. In most cases, any application should be capable of being determined by the tribunal on the day of the substantive hearing. However, there may be circumstances where the issue is more complicated, when it would be appropriate for the matter to be considered and determined by a single judge in advance of the substantive hearing. Depending on the circumstances and complexity this could be either on written submissions or by holding an oral hearing.
33. We can also envisage circumstances in which the tribunal will need to obtain information as to the third-party's views on the issue of disclosure. Where this occurs, the tribunal should notify the responsible authority which should then obtain this information and submit it to the tribunal, thus avoiding where possible any direct involvement by the third-party in the tribunal's procedures.
34. All of these steps can be taken under the general case management powers of the tribunal, particularly under rule 5(3)(d). The steps are all consistent with the specific provisions set out in rule 14, to which we have already made reference: and the parties should adopt a similar procedure in circumstances in which rule 14 might apply. Again in most instances those applications should be dealt with on the day of the substantive hearing and only exceptionally should it be necessary for a single judge to determine the issue on written submissions or by a separate hearing prior to the substantive hearing.
35. This guidance is intended to assist all parties who seek disclosure of medical records, and face requests for disclosure of medical records; and hopefully there will be few cases where the procedures suggested above will not suffice. However, this is only guidance and is not prescriptive for all cases. In cases where there are idiosyncratic features or complexities, it is always open to either party to make an application to the tribunal for specific directions or for a tribunal of its own motion to give appropriate directions.
36. We were asked to suggest a standard direction for cases such as these. We do not wish to be that prescriptive. It will however be apparent from what we have said above that had the second paragraph of Judge Harbour's direction not been limited to cases falling within rule 14(2), we consider that would have been a proper direction in this case with which there should have been no difficulty. It may also be advisable, when this sort of direction is made without hearing both parties, to include a reference to the right to make an application under rule 6(5) if there is an objection to the direction.

Status of a Decision by a Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal

37. This is the first appeal to be concluded under the Tribunals, Courts and Enforcement Act 2007 by a Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal ("the AAC"). Although, for the reasons set out above, no substantive decision has been made in relation to this appeal, it would be helpful if we were to make some comments about the precedential authority of a Three-Judge Panel.
38. Until further guidance is available as to the precedential authority to be given to various constitutions of the AAC (either through a Practice Direction or case law), the principles laid down in paragraphs 19-21 of R(I) 12/75 as applicable to Tribunals of Commissioners in social security cases should continue to be applied in the AAC where a Three-Judge Panel sits to hear a case involving a question of law of special difficulty or an important point of principle or practice (see the Practice Statement of the Senior President of Tribunals dated 30 October 2008 on the composition of tribunals in relation to matters that fall to be decided by the Administrative Appeals Chamber of the Upper Tribunal on or after 3 November 2008). Such cases will be clearly identified on their face. Making only the necessary adjustments to take account of the new arrangements, those guidelines are as follows:

(i) Judges of the Upper Tribunal in the AAC speak with equal authority. All their decisions may be cited to the Upper Tribunal, First-tier Tribunals and other tribunals from which appeals to the AAC come and the appropriate decision-making authorities. Where they decide questions of legal principle they must be followed by the appropriate decision-making authorities and the tribunals below in cases involving the application of that principle, unless they can be distinguished. It should be borne in mind that similarity in underlying facts does not automatically give rise to similarity in the principle to be applied and questions of fact should not be elevated into questions of legal principle.

(ii) If confronted with decisions which conflict, the appropriate decision-making authority and tribunals below must prefer the decision of a Three-Judge Panel of the AAC or a Tribunal of Commissioners to that of a single judge or Commissioner.

(iii) In so far as the AAC is concerned, on questions of legal principle, a single judge shall follow a decision of a Three-Judge Panel of the AAC or Tribunal of Commissioners unless there are compelling reasons why he should not, as, for instance, a decision of a superior court affecting the legal principles involved. A single judge in the interests of comity and to avoid confusion on questions of legal principle normally follows the decisions of other single judges. It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so.

39. We also note that rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) provides:

"Unless the Upper Tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public."

This extends the principle that applies in the First-tier Tribunal by virtue of rule 14(7) of its Rules, derived from the 1983 Rules. However, it is vital that decisions dealing with important points of legal principle and practice should be published: and, whatever the merits of the provision in the First-tier Tribunal Rules, we consider that it should generally be sufficient to protect the interests of the parties that decisions of the Upper Tribunal are anonymised so far as individual parties are concerned.

40. We direct that, save for the frontsheet (which identifies the parties), this decision shall be made public.

His Honour Judge Gary Hickinbottom CP

His Honour Judge Phillip Sycamore CP

Upper Tribunal Judge Mark Rowland

8 January 2009