JP v Standards Committee of Surrey County Council [2011] UKUT 316 (AAC) (08 August 2011)
Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 26
August 2010 under reference LG/2010/0523) involved the making of an error in
point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the
Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: Mr Pitt is given permission to appeal to
the First-tier Tribunal against the decision of the Surrey County Council
Standards Committee of 30 July 2010.
Reasons
for Decision
1.
The issues in this case are: (i) what standard should be applied on an
application for permission to appeal to the First-tier Tribunal against the
decision of an administrative decision-maker on an issue of fact or judgment;
and (ii) did the tribunal properly apply that standard in this case?
A.
the parties and their representatives
2.
Mr Pitt is the appellant and the Standards Committee of Surrey County
Council is the respondent. The Committee has been represented on this appeal by
Ms Samantha Broadfoot of counsel. I am grateful to her for her clear
submissions that dealt comprehensively but succinctly with the issues raised by
the appeal. Sadly, the same cannot be said for the submissions by Mr Pitt’s
representative. He has raised a large number of issues that are mainly points
of detail and often of no direct relevance to the issues I have had to decide. I
do not make a point of criticising representatives, all of whom are trying to
do their best for the parties they represent. I mention this point because
there will now be a rehearing and Mr Pitt will be best served if his case is
presented in a way that takes account of the nature of the proceedings that
will be conducted. Arguments that are misdirected do not assist the tribunal
and serve only to divert attention and to delay proceedings. The First-tier
Tribunal has case management powers to ensure that the parties understand what
is required of them and that they co-operate in dealing with the case in the
most efficient way.
B.
The decision of the standards Committee
3.
Four allegations were made against Mr Pitt in respect of his conduct as
a councillor. Mr Nash, an investigating officer, conducted an investigation and
presented a report to the Standards Committee. Following his report, the Committee
considered the allegations. On 30 July 2010, it rejected three of the
allegations, but decided in respect of the other that Mr Pitt had failed to
comply with the Code of Conduct:
That Mr Pitt failed to show
respect towards Mrs Little in his conduct at the meeting of the Adults and
Community Care Committee, which he was chairing on 21 January 2010 and
consequently had failed to comply with Surrey County Council’s Members’ Code of
Conduct.
The reason for this decision is
as follows: the Sub-Committee had heard from a number of witnesses with
differing views on Mr Pitt’s behaviour. Some witnesses gave evidence that they
had witnessed behaviour that they considered to be unacceptable. A similar
number of witnesses regarded the behaviour as acceptable robust chairmanship.
The Sub Committee believed that all witnesses were giving a truthful account of
their perception of what they had observed. The Sub Committee therefore needed
to apply its own test to the evidence before it, and concluded that a decision
should be reached on whether a reasonable member of the public observing the
events of the meeting would regard Mr Pitt’s behaviour as treating her with
disrespect. The Sub-Committee unanimously concluded that Mr Pitt’s behaviour
would not be seen as treating Mrs Little with respect. The Sub Committee,
however, concluded that there was no evidence that Mr Pitt’s behaviour was part
of a previous pattern of similar behaviour.
4.
The Committee imposed as a sanction a requirement to apologise to Mrs
Little:
The reason for the Sub
Committee’s decision was that Mr Pitt had failed to treat Mrs Little with
respect at a public meeting of the Adults and Community Care Select Committee
on 21 January 2010. It regarded Mr Pitt’s conduct as sufficiently serious to
warrant a sanction. The Sub Committee noted that an earlier letter of apology
had been sent to Mrs Little but it heard evidence that Mr Pitt had not composed
that letter. In considering the appropriate level of sanction the Sub Committee
took into account that it had received no evidence that Mr Pitt’s behaviour was
part of a pattern of similar behaviour. In the light of these considerations
the Sub Committee considered that a written apology would be a sanction
reasonable and proportionate to Mr Pitt’s behaviour.
C.
The legislation
5.
The powers of the Committee are contained in regulation 19 of the
Standards Committee (England) Regulations 2008 (SI No 1085):
19 Findings of standards
committees
(1) Following a hearing held
under regulation 18, a
standards committee shall make one of the following findings-
(a) that
the member who was the subject of the hearing had not failed to comply with the
code of conduct of any authority concerned;
(b) that
the member who was the subject of the hearing had failed to comply with the
code of conduct of an authority concerned but that no action needs to be taken
in respect of the matters which were considered at the hearing; or
(c) that
the member who was the subject of the hearing had failed to comply with the
code of conduct of an authority concerned and that a sanction under paragraph
(2) or (3) should be imposed.
6.
Regulation 21 governs the right of appeal:
21 Appeal to the First-tier
Tribunal
(1) Where a standards
committee makes a finding under regulation 19(1)(b) or (c),
the member who is the subject of that finding may …-
(a) seek
permission to appeal to the First-tier Tribunal; and, if appropriate,
(b) apply
to the First-tier Tribunal for the suspension of any sanction imposed under regulation 19(3)(b) to (k)
until such time as any appeal is determined.
…
(4) In deciding whether to
give permission to appeal the First-tier Tribunal shall have regard to whether,
in its opinion, there is a reasonable prospect of the appeal being successful
(either in whole or in part).
(5) Permission to appeal or
to suspend a sanction may be given in relation to the whole or any specified
part of the finding or sanction.
7.
Section 78A of the Local Government Act 2000 imposes a duty on the
First-tier Tribunal in respect of an appeal:
78A Decisions of First-tier Tribunal
…
(2) Where the First-tier
Tribunal adjudicates on any matter under this Act, it must decide whether or
not any person to which that matter relates has failed to comply with the code
of conduct of the relevant authority concerned.
Consistently with that duty, regulation 25 deals with the
outcome of an appeal:
25 Outcome of appeals
(1) The First-tier Tribunal
must uphold or reject the finding or, where permission to appeal was granted as
to only part of the finding, that part of the finding, to which the appeal
relates, or may allow the appeal as regards a specified part of the finding.
(2) Where the First-tier
Tribunal rejects the finding, the decision of the standards committee
(including any sanction imposed) shall cease to have effect from the date of
the rejection.
(3) Where the First-tier
Tribunal upholds the finding of a standards committee made under regulation 19(1)(b),
it may confirm the decision of that committee to impose no sanction or it may
impose any sanction which was available to the standards committee.
(4) Where the First-tier
Tribunal upholds the finding, or part of a finding, of a standards committee
made under regulation 19(1)(c),
it may confirm any sanction imposed by that committee, or vary it by
substituting any other sanction which was available to the standards committee.
(5) Subject to paragraph
(6), any sanction imposed under this regulation shall take effect immediately
after its imposition.
(6) The First-tier Tribunal
may direct that any sanction imposed under this regulation shall take effect on
such date, within the period of six months after its imposition, as the
First-tier Tribunal may specify.
This regulation reinforces section 78A(2) by making clear
that the tribunal must decide afresh the facts and the nature of any sanction
that is appropriate.
D.
the refusal of permission by the First-tier Tribunal
8.
Tribunal Judge Laverick of the First-tier Tribunal refused Mr Pitt
permission to appeal against the decision of the Standards Committee:
The application for permission
to appeal is refused. Although lengthy, the grounds of appeal lack real
substance. I see no reasonable prospect of the Tribunal upholding the appeal
against the finding that the Councillor failed to follow the Code of Practice,
nor do I see any likelihood of the Tribunal imposing a lesser sanction.
The evidence of witnesses
present at the particular meeting is helpful in determining what was said and
they can also properly give evidence as to the manner in which statements were
made. But it was for the Standards Committee and not members of the public to
reach a decision as to whether the Councillors words and manner amounted to
showing a lack of respect. The reasonable member of the public test applied by
the Committee was the right one. Although the Appellant may not have found some
witnesses credible, the Standards Committee were entitled to reach their own
view.
I would have been concerned had
evidence been heard without the Appellant having the opportunity to challenge
it but this does not in the end appear to have happened.
Alleged irregularities of the
kind in paragraph 6 and 10 to 12 of the Appellant’s grounds do not cast doubt
on the jurisdiction to deal with the matter or on the ultimate decision.
The obligation on the Standards
Committee is to consider the report of an investigation. There is no obligation
for that report to include details of all interviews which the investigator
held.
A decision not to act in
accordance to the Appellants estimate of the time needed for the hearing does
not to my mind indicate any bias against him. In any event the hearing was not
curtailed.
The Committee’s decision makes
clear that it was not influenced either by Chief Executive’s attempt to achieve
an informal settlement or by any arguments based on that adduced by the
Investigating Officer.
There is no evidence that the
Monitoring Officer influenced the decision of the Hearings Sub-Committee –
which upheld only one of the four applications.
It is certainly good practice to
allow a statement in mitigation before imposing a sanction. But I simply cannot
conceive what mitigating statement could cause the Tribunal to reach a view
that the sanction imposed was unreasonable.
E.
The application for permission to appeal to the Upper Tribunal
9.
There are two rights of appeal to the Upper Tribunal. An appeal lies on
‘any point of law arising from a decision’ under section 11(1) of the
Tribunals, Courts and Enforcement Act 2007. And an appeal lies on any other
ground under section 78B(4) and (5) of the Local Government Act 2000. I gave
permission under section 11(1) on the ground that there was a realistic
prospect that the decision of the First-tier Tribunal involved the making of an
error on a point of law:
·
The judge may not have been able to say that the Committee was
entitled to make its decision without knowing what the evidence was that the
Committee heard.
·
Moreover, the judge appears to have applied a test of whether the
Committee was entitled to reach the decision that it did on the facts. Is that
the correct test for an appeal to the First-tier Tribunal? On that appeal, the
tribunal would have to decide the issues of fact afresh; that is clear from
regulation 25. Can it refuse permission merely on the ground that the
Committee’s findings were permissible?
10.
Even if the tribunal did not make an error of law, the case merited the
attention of the Upper Tribunal in view of the uncertainty over the test that
the First-tier Tribunal has to apply on an application for permission.
F.
The standard to be applied on an application for permission to appeal to
the First-tier Tribunal
11.
Most appeals to the First-tier Tribunal from administrative
decision-makers lie as of right. The need for permission to appeal to the
tribunal in the case of local government standards is exceptional and the
system is being abolished. Nevertheless, the nature of the right of appeal on
issues of fact is relevant both to this case and more generally, as an appeal (including
an appeal on an issue of fact) to the Upper Tribunal from decisions of the
Independent Safeguarding Authority lies only with the permission of that
tribunal (section 4(4) of the Safeguarding Vulnerable Groups Act 2006).
12.
The following principles emerge from the legislation and the context in
which it must be applied.
13.
First and like all powers conferred on tribunals, the power to give
permission must be exercised judicially.
14.
Second, permission acts as a filter. It may not be given as of right, as
that would subvert the statutory requirement for permission, which would in
turn not be a proper judicial exercise of the power.
15.
Third, regulation 21(4) requires the tribunal to consider whether there
is a reasonable prospect of the appeal being successful. This is not an
exhaustive statement of the factors that are relevant to the question whether
permission should be given. It is merely one factor that has to be taken into
account in the general exercise of the tribunal’s power.
16.
Fourth, I can see no significant difference in meaning between
‘reasonable prospect of the appeal being successful’ and ‘realistic prospects
of success’. The latter phrase has been considered by the Court of Appeal. In Smith
v Cosworth Casting Processes Ltd [1997] 1 WLR 1538, Woolf LJ said (at
1538):
The court will only refuse
leave if satisfied that the applicant has no realistic prospect of succeeding
on the appeal. This test is not meant to be any different from that which is
sometimes used, which is that the applicant has no arguable case. Why however
this court decided to adopt the former phrase is because the use of the word
‘realistic’ makes it clear that a fanciful prospect or an unrealistic argument
is not sufficient.
Later as Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 (at 92), he said:
The words ‘no real prospect of
succeeding’ do not need any amplification, they speak for themselves. The word
‘real’ distinguishes fanciful prospects of success or … they direct the court
to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’
prospect of success.
In a different context, the Court has decided that ‘no
realistic prospect of success’ can for practical purposes be taken to mean the
same as ‘clearly unfounded’: R (YH) v Secretary of State for the Home
Department [2010] 4 All ER 448 at [10]. In other words, to continue the
filter image, the permission stage is but a coarse filter, sifting out only the
least meritorious of the cases.
17.
Fifth, the Court of Appeal has considered the criteria to be applied
when giving permission in respect of issues of fact. I drew the attention of
the parties to Subesh v Secretary of State for the Home Department
[2004] EWCA Civ 56. The Court considered the proper approach to an appeal on
issues of fact under the Immigration and Asylum Act 1999. I quote extensively,
as the case is not reported in the general reports:
40. There are
two straightforward points that can be got out of the way. First, an appeal
from the Adjudicator to the IAT under paragraph 22 to Schedule 4 of the 1999
Act is available on fact as well as law. So much is uncontentious. But it means
that the IAT's appreciation of factual issues is not limited to what might be
called the Wednesbury question, that is,
whether the Adjudicator's conclusion on the material factual issue is perverse
or flawed for breach of the requirement that only (but all) relevant
considerations have to be taken into account. In fairness Miss Jegarajah did
not suggest that this was the test for the IAT; although her reliance on Tanfern
was not far distant from such a stance. And we are clear that Schiemann LJ in Oleed
cannot be taken as indicating that anything like a Wednesbury approach
is required to be adopted by the IAT in confronting an Adjudicator's prior
determination.
41. The
second straightforward point concerns the difference between a finding which
depends upon the Adjudicator's assessment of oral testimony upon a disputed
issue (for example: was the appellant detained and ill-treated as he claims?)
and a finding which consists in an inference from proved or admitted primary
facts. It is accepted on all hands, from Montgomerie onwards and perhaps
before, that in the former class of case an appellate court which has not heard
the material oral testimony must be slow to impose its own view. So much is
commonplace. But this has nothing to with the reach of the appeal court's
jurisdiction. It merely recognises the pragmatic limitations to which the
appeal court, not having heard the evidence, must be subject.
42. Those two
points are the foothills. Now, it may also readily be accepted as a matter of
principle (and we would certainly hold) that the appeal process is not merely a
re-run second time around of the first instance trial. This is just as true
where the appeal is open-ended (as it is under paragraph 22 of Schedule 22 to
the 1999 Act), as when it is for example limited to points of law only or
subject to other limitations or qualifications. But what is the nature of the
constraint upon the appeal process which this proposition implies? It is not
merely attributable to the circumstance that the first instance court has heard
the witnesses, since its application is not confined to appeals on disputed
issues of fact which the judge below has resolved by reference to oral
testimony. Thus Lord Halsbury's opening paragraph in Montgomerie is with
respect of little assistance.
43. The
constraint has been expressed, not least by Hale LJ in Indrakumar, as a
requirement that the appeal court must identify an error on the part of the
lower tribunal before it can interfere. However this notion of an error is more
elusive than it appears. In the case of what we have called an open-ended
appeal, it is plainly not confined to an error of law. Nor is it confined to an
error of fact so gross as to engage the Wednesbury principle. How then
does the finding by the appeal court of an error on the part of the lower
tribunal differ from a "mere disagreement"? What in truth is meant
here by "error"? These questions are, with respect, not answered in Indrakumar.
44. The
answer is, we think, ultimately to be found in the reason why (as we have put
it) the appeal process is not merely a re-run second time around of the first
instance trial. It is because of the law's acknowledgement of an important
public interest, namely that of finality in litigation. The would-be appellant
does not approach the appeal court as if there had been no first decision, as
if, so to speak, he and his opponent were to meet on virgin territory. The
first instance decision is taken to be correct until the contrary is shown. As
Lord Davey put it in Montgomerie (in the passage we have cited),
"[i]n every case the appellant assumes the burden of shewing that
the judgment appealed from is wrong" (our emphasis). The burden so assumed
is not the burden of proof normally carried by a claimant in first instance
proceedings where there are factual disputes. An appellant, if he is to
succeed, must persuade the appeal court or tribunal not merely that a different
view of the facts from that taken below is reasonable and possible, but that
there are objective grounds upon which the court ought to conclude that a
different view is the right one. The divide between these positions is not
caught by the supposed difference between a perceived error and a disagreement.
In either case the appeal court disagrees with the court below, and,
indeed, may express itself in such terms. The true distinction is between the
case where the appeal court might prefer a different view (perhaps on
marginal grounds) and one where it concludes that the process of reasoning, and
the application of the relevant law, require it to adopt a different
view. The burden which an appellant assumes is to show that the case falls
within this latter category.
45. There are
some ancillary points to be made. First, to categorise what we have described
as the true distinction as merely being one between perceived error and
disagreement not only offers no elucidation of the difference between these two
ideas, but may be misleading in practice. Hale LJ's statement (Indrakumar paragraph
13(4)(iv)) that "[t]he [IAT] will be entitled to draw its own inferences,
just as is the appellate court under the CPR, once it has detected an error in
the adjudicator's approach" suggests a two-stage process for the IAT:
first identify an error, then proceed to its own inferences. But, with respect,
the "error" may consist precisely in the IAT's conclusion that the
inferences which it would draw are the right ones. There is no such
two-stage process. Neither as a matter of jurisdiction given the terms of
paragraph 22 of Schedule 4 to the 1999 Act, nor by reference to the general
law, is the IAT required to look for an error by the Adjudicator as if that
were an exercise hermetically sealed from its own appreciation of the merits of
the case. Such an exercise, or something like it, is apt when an appeal court
is asked to overturn a pure exercise of discretion by a lower court, as is
shown by G v G (to which we have referred in paragraph 31) and many
cases which have followed it. But different considerations are there in play.
46. Next, we
should make it clear that nothing in this judgment is intended to undermine the
utility of Hale LJ's categorisation of four different types of evidential
issue, set out in paragraph 13(4) of her judgment in Indrakumar. On the
contrary, they shed light on the practical application in the asylum field of
what we have ventured to formulate as the true question on appeals, namely
whether there are objective grounds which persuade the court that it ought to
conclude that a different view from that taken below is the right one. We would
draw attention in particular to the third type of issue identified by Hale LJ
at paragraph 13(4)(iii), dealing with findings made as to the general
conditions or the backdrop in the country concerned. In this area the IAT may
have particular reason to differ from the Adjudicator, if he has departed
without solid justification from an earlier IAT ruling intended to be
authoritative as to the situation for the time being in the country in
question. Here, this court's judgment in S and Others is in point, as is
Latham LJ's reference in Vujnovic (paragraph 19) to the IAT's function
of review of Adjudicators in order to secure a consistency of approach. We
single out this category of case because it is, we think, special to the
immigration jurisdiction, and in order to emphasise that the nature of the
appeal process, as we have tried to describe it, can be seen to accommodate
this "exotic" instance just as readily as more everyday instances of
appeal issues.
47. More
generally, in our opinion, once it is recognised that the true question is
always whether the process of reasoning, and the application of the relevant
law, tell the appeal court that it ought to adopt a different view from that
taken below, three benefits flow. First, the principle of finality, the
appellant's burden (as Lord Davey put it) "of shewing that the judgment
appealed from is wrong", is uniformly preserved. Secondly, all proper
scope is given to different kinds of case. Thus what it takes to overturn (say)
an Adjudicator's view of an appellant's oral testimony is one thing. What it
takes to overturn his view of in-country conditions where the IAT has recently
given an authoritative ruling after an exhaustive review of the material may be
quite another. Thirdly, the elusive, and in the end unhelpful, distinction
between error and disagreement is given its quietus.
48. Lastly,
we hope it is clear that what we have said is not put forward merely as an
exercise in the construction of paragraph 22 of Schedule 4 to the 1999 Act. It
owes such force as it possesses not to any statute, but to the general need to
conform the nature of the appeal process with the principle of finality; this
is a goal of the common law. It is what might nowadays be called a default
position, defeasible in any particular case by statutory provision inconsistent
with it. Thus an appeal to the Crown Court against a conviction in criminal
proceedings in the magistrates' court is treated in effect as a new first
instance hearing. Evidence is called all over again; it may or may not be the
same evidence as was called before the magistrates. There may be other such
instances. That process is at variance with the nature of appeals as we have
described it. But neither of these approaches undermines the other; the Crown
Court instance merely shows the working of a particular statutory regime as it
has been interpreted. Cases where statute prescribes a specially restricted
right of appeal will equally involve a departure from the default position.
49. We hope
also that the way we have put the matter will not itself be read like a statute
so as to constitute a source of further litigation. The approach is a general
one, having neither need nor scope for sophisticated refinement. It allows for
an infinity of situations in particular appeals and of course is always subject
(as we have just made clear) to the bite of any applicable statutory provision.
50. In our
judgment appeals brought under paragraph 22 of Schedule 4 to the 1999 Act fall to
be conducted consistently with the approach we have set out. We have every
reason to suppose that in general they are so conducted. Nothing we have said
is intended to assault the general practice of the IAT, including their
practice of receiving oral evidence for themselves only exceptionally.
18.
Sixth, Subesh sets out the standard that must be applied to an
appeal on an issue of fact or judgment from another tribunal, in that case
called at the time an adjudicator. In this case, in contrast, the appeal lies
not from a decision of a tribunal but from the decision of an administrative
decision-maker. That is significant and I do not, therefore, accept Ms Broadfoot’s
argument that it applies to limit the grounds on which the First-tier Tribunal
could give permission to appeal. It needs modification in the present context.
If the Subesh standard is satisfied, then permission to appeal would be
justified. But it does not follow that permission to appeal must be refused if
the standard is not satisfied. A more lenient approach than that set out in Subesh
is required when the appeal lies from an administrative decision-maker. Even if
the case does not involve a civil right or obligation within Article 6 of the
European Convention Human Rights, it would not be appropriate to apply the
permission requirement too strictly on an initial appeal to a judicial
tribunal.
19.
Seventh, it is relevant to take account of the nature of the appeal that
will be conducted if permission is granted. On general principle, the
First-tier Tribunal hearing an initial appeal should not merely review the
decision of the Standards Committee for error, it should decide afresh the
issues of fact and judgment decided by the Committee. That is what section
78A(2) of the 2000 Act requires by imposing a duty on the tribunal to decide
whether there has been a breach of the code. There is also the composition of
the panel that will hear any appeal to be considered. This is governed by
practice statements issued by the Senior President of Tribunals under the
authority of the First-tier Tribunal and Upper Tribunal (Composition of
Tribunal) Order 2008 (SI No 2835). For local government standards cases, the
tribunal may include members (see for the present position paragraph 10 of the
practice statement on Composition of tribunals in relation to matters that
fall to be decided by the General Regulatory Chamber on or after 1 September
2010), whose knowledge and experience of local government will inform the
panel and assist it when finding facts and exercising judgment. The reasonable
prospects of success test must be applied in this way: are there reasonable
prospects of success following a rehearing before an appropriate panel that
finds its own facts and exercises its own judgment?
20.
Eighth, there is a discretion to give permission even if there are no
reasonable prospects of the appeal succeeding. As Woolf LJ recognised in Smith
v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 at point 2, there may be
good reason to give permission even if the appeal does not have a reasonable
prospect of success. It is dangerous to give examples as they too often
generate arguments that try to extract more from them than is proper. I
therefore give an extreme example of a Standards Committee whose members were
clearly actually biased against a councillor whose case lacks merit. It may be
that in such a case fairness requires that permission be given even if the
outcome was inevitable.
21.
Ninth, the overriding objective, which is contained in rule 2 of the
Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules
2009 (SI No 1976), does not apply. It applies only to the exercise of any power
under those Rules and to the interpretation of any rule or practice direction.
It does not apply to the interpretation or application of the 2008 Regulations.
Nevertheless, the proportionate allocation of resources, which is a component
of the overriding objective, is relevant on general principle.
22.
Tenth, it is always wise to bear in mind the elegantly expressed advice
of Megarry J in John v Rees [1970] Ch 345 (at 402):
As everybody who has anything to
do with the law well knows, the path of the law is strewn with examples of open
and shut cases which, somehow, were not; of unanswerable charges which, in the
event, were completely answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determinations that, by discussion, suffered
a change. Nor are those with any knowledge of human nature who pause to think
for a moment likely to underestimate the feelings of resentment of those who
find that a decision against them has been made without their being afforded
any opportunity to influence events.
G.
how the First-tier Tribunal failed to apply that standard
23.
It would be easy to take isolated sentences or phrases from Judge
Laverick’s reasons for refusing permission to appeal and use them to show that
the judge misdirected himself on the correct approach. That would be wrong. His
reasons must be read as a whole and in the context of the case, not as general
statements of law to be read in isolation. That is how I have approached them.
24.
Nevertheless, I consider that no First-tier Tribunal applying the law as
I have set it out could properly refuse permission to appeal in this case. That
conclusion is the cumulative result of three considerations.
25.
First, the judge did not have the whole of the evidence before him. Ms
Broadfoot points out, correctly, that much of the evidence was referred to the
in Mr Pitt’s grounds of appeal. However, those references were sporadic and,
naturally, the ones that suited Mr Pitt’s argument. They were not, and not
presented as, a comprehensive statement of the evidence. Nor did the judge have
the benefit of hearing the witnesses give their evidence.
26.
Second, the judge did not know why the Committee formed the judgment
that it did. That judgment depended in part on the evidence that the Committee
heard and was based on the members’ experience of local government. Neither of
those was available to the judge. I accept Ms Broadfoot’s point that the judge
is experienced in these cases, but that is not the same as having actual
experience of local government from the perspective that tribunal members can
bring. I know from my own experience in a different field that, however
familiar a judge may become with a particular jurisdiction, there is still much
of value that the members can bring to the proceedings.
27.
Third, the Committee said that all the witnesses gave evidence honestly
of their perceptions of Mr Pitt’s conduct and those perceptions differed. I
accept Ms Broadfoot’s argument that the test that has to be applied to Mr
Pitt’s conduct is an objective one. But a number of witnesses honestly formed
different impressions at the time and that difference is significant, even when
applying an objective standard, to the extent of showing that there is scope
for legitimate difference of view.
28.
Applying the law as I have analysed it above, the only proper way to
apply the coarse filter of permission to an initial appeal in the circumstances
of this case was to give permission.
H.
The effect of my decision
29.
As I have decided that the First-tier Tribunal’s refusal of permission
was perverse, I must set it aside. It is inherent in my decision that
permission should have been given. I therefore re-make the decision and give
permission. Mr Pitt’s appeal will now be heard by the First-tier Tribunal. Nothing
I have said in this decision carries any implication of the likely outcome.
|
Signed on original
on 8 August 2011
|
Edward Jacobs
Upper Tribunal Judge
|
