Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 25 February 2014 under reference EA/2013/0068, BAILII: 2014] UKFTT EA_2013_0068 ) 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: the Information Commissioner’s decision notice number FS50453022 dated 13 March 2103 was not in accordance with law. Ofsted was not in breach of section 10(1) of the Freedom of Information Act 2000.

Reasons for Decision

A.        The issue

1.         Suppose that both a public authority and a person who has requested information from that authority disagree with a decision notice served by the Information Commissioner under section 50 of the Freedom of Information Act 2000, which I call FOIA. Is it necessary for them to make separate appeals or can the tribunal deal with the issues raised by one party on an appeal by the other? I have decided that although cross-appeals are permissible, they are not necessary.

B.        Mr John’s dealings with Ofsted

2.         On 31 May 2012, Mr John emailed Ofsted about a recent inspection at his children’s school. He asked what measures it had taken to ensure that fathers of school children, particularly those who did not live with the children’s mothers, were aware of and involved in an inspection. He said he wanted the information both generally and in relation to the recent inspection. He added that Ofsted could if necessary consider this to be a request under FOIA ‘and in that case provide additional policy, practical and statistical information in support.’ Ofsted acknowledged his request on 2 June; on 6 June, it provided a general response setting out its policy on involving all parents and the role of the school. The reply suggested that Mr John contact his children’s school to find out why the school had left him off the distribution list.

3.         On 10 June 2012, Mr John wrote two letters to Ofsted. One asked, in effect, for a review. The other asked for more detailed information on the number of questionnaires received, safeguarding concerns raised, and other queries or concerns mentioned by fathers, mothers and others, for the years 2005 to 2012, together with further breakdowns into five categories. Ofsted replied on 11 June that, as it had not treated Mr John’s request of 31 May as a request under FOIA, it could not carry out an internal review. Mr John protested on the following day, but Ofsted reiterated its position on 14 June. The official who wrote that reply said that he was unsure of the extent to which Ofsted held or collected the information that Mr John had now requested.

4.         Ofsted wrote again 28 June to the effect that it destroyed the hardcopy of questionnaires after six months and held only a limited dataset that contained an analysis of the responses to the questionnaire without any personal data about the recipients. Mr John was not satisfied with this response and wrote asking for an internal review on 13 July. Ofsted emailed its refusal of that review on 16 July 2012.

C.        The complaint to the Information Commissioner

5.         In the meantime, on 18 June 2012, Mr John had complained to the Information Commissioner. By then, events had moved on, as the previous paragraphs show. Mr John agreed with the Commissioner that his complaint would deal with ‘the way in which Ofsted handled the complainant’s request up until 18 July 2012.’ The Commissioner decided that Ofsted was in breach of sections 1(1)(a), 1(1)(b) and 10(1) of FOIA, but as Ofsted had since provided the information, he did not require any steps to be taken. The notice was dated 13 March 2013.

D.       The appeal to the First-tier Tribunal

6.         Ofsted lodged an appeal with the First-tier Tribunal, arguing that there had been no breach of FOIA. The notice of appeal was dated 8 April 2013. Mr John was made a party to the appeal on 30 May 2013, but it was not until 30 July 2013 that he said that he wished to challenge the decision notice. The tribunal’s Registrar first commented, in a direction of 31 July 2013, ‘I do not see why Mr John indicates that he wishes to lodge a “cross-appeal”.’ Mr John replied and the Registrar gave another direction on 1 August 2013:

3.      Mr John has not submitted a Notice of Appeal and Grounds of Appeal in order to appeal against the Decision Notice. This is the correct way in which to challenge a Decision Notice.

4.      However, it seems to me that the only point Mr John raises which he could have appealed to this Tribunal is whether Ofsted hold more information with regards his request.

5.      This is a narrow issue. In my view the Tribunal could look into this, provided Mr John gives a satisfactory explanation of why, when he received the Decision Notice, he did not raise this issue by appealing to the Tribunal and what other information he believes Ofsted holds.

6.      Until the tribunal has accepted that Mr John has a satisfactory explanation for not making his own appeal and he has shown that he has reasonable arguments that Ofsted holds more information, this point cannot realistically be looked into by the tribunal.

In a further direction on 3 October 2013, the Registrar wrote that, as Mr John had not identified the information that Ofsted might still hold, ‘I believe that the appeal should be limited to the question’ whether Ofsted failed to comply with the time limit in section 10(1). Mr John lodged a notice of appeal on 3 November 2013, identifying two errors in the decision notice: (i) the Commissioner had failed to deal with the issue whether Ofsted had responded promptly; and (ii) information was still outstanding. On 5 November 2013, the Chamber President directed Mr John to apply at the hearing for permission to extend time for his cross-appeal.

7.         The tribunal made its decision on 25 February 2014. It allowed Ofsted’s appeal, deciding that it had complied with the time limit in section 10(1). It decided that the original request had been made on 31 May and Ofsted had replied on 28 June, which was within the 20 days allowed. It criticised the Commissioner for overlooking the letter of 28 June. Alternatively, the tribunal said that Mr John’s letter of 10 June could have been considered as a separate request. The tribunal then refused to extend time in which Mr John could appeal against the decision notice.

E.        The appeal to the Upper Tribunal

8.         I gave Mr John permission to appeal to the Upper Tribunal and directed an oral hearing. It took place on 9 September 2014. Mr John attended and spoke on his own behalf. Ms Heather Emmerson of counsel represented the Information Commissioner. I am grateful to both for their arguments.

F.        The legislation

9.         These are the relevant provisions of FOIA:

1      General right of access to information held by public authorities

(1)     Any person making a request for information to a public authority is entitled—

(a)     to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)     if that is the case, to have that information communicated to him.

(2)     Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, and 14.

 

10    Time for compliance with request

(1)     Subject to subsections (1) and (2), a public authority must comply with section 1(1) promptly and in any event not later that the twentieth working day following the date of receipt.

…

 

50    Application for decision by Commissioner

(1)     Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

(2)     On receiving an application under this section, the Commissioner shall make a decision unless it appears to him—

(a)     that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45,

(b)     that there has been undue delay in making the application,

(c)     that the application is frivolous or vexatious, or

(d)     that the application has been withdrawn or abandoned.

(3)     Where the Commissioner has received an application under this section, he shall either—

(a)     notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or

(b)     serve notice of his decision (in this Act referred to as a “decision notice”) on the complainant and the public authority.

(4)     Where the Commissioner decides that a public authority—

(a)     has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b)     has failed to comply with any of the requirements of sections 11 and 17,

the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.

(5)     A decision notice must contain particulars of the right of appeal conferred by section 57.

(6)     Where a decision notice requires steps to be taken by the public authority within a specified period, the time specified in the notice must not expire before the end of the period within which an appeal can be brought against the notice and, if such an appeal is brought, no step which is affected by the appeal need be taken pending the determination or withdrawal of the appeal.

(7)     This section has effect subject to section 53.

 

57    Appeal against notices served under Part IV.E+W+S+N.I.

(1)     Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.

(2)     A public authority on which an information notice or an enforcement notice has been served by the Commissioner may appeal to the Tribunal against the notice.

(3)     In relation to a decision notice or enforcement notice which relates—

(a)     to information to which section 66 applies, and

(b)     to a matter which by virtue of subsection (3) or (4) of that section falls to be determined by the responsible authority instead of the appropriate records authority,

subsections (1) and (2) shall have effect as if the reference to the public authority were a reference to the public authority or the responsible authority.

 

58    Determination of appeals

(1)     If on an appeal under section 57 the Tribunal considers—

(a)     that the notice against which the appeal is brought is not in accordance with the law, or

(b)     to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)     On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

G.       Cross-appeals

10.      Ms Emmerson invited me to clarify the position on cross-appeals. That provides a convenient place to begin my analysis of this case.

11.      Ms Emmerson argued that it was not necessary to appeal in order to support the outcome of the decision notice, but it was necessary to appeal in order to challenge the outcome of the decision notice. I do not accept that analysis for these reasons: (i) it is not supported by an analysis of FOIA; (ii) it is inconsistent with the nature of an appeal under FOIA; (iii) it creates potential difficulties of application; and (iv) the rules of procedure do not require it.

The interpretation of FOIA

12.      Section 57 confers a right of appeal. That is necessary, because appellate jurisdiction has to be conferred by statute: Lord Westbury LC in Attorney-General v Sillem (1864) 11 ER 1200 at 1207. The section deals separately with complainants and public authorities. That is because it is necessary to make provision for authorities to appeal against an enforcement notice. The separate treatment of complainants and public authorities does not imply that they must each exercise the right of appeal.

13.      The appeal lies against the decision notice. This indicates that the notice is the subject matter or target of the appeal. This does not imply that a party who disagrees with the notice may only do so by exercising the right of appeal. It reflects the reality that a party who agrees with a decision notice is unlikely to appeal against it. It is possible that a party might agree with the Commissioner’s decision, but disagree with the reasoning. Ms Emmerson may be right that an appeal lies against ‘the findings made by the Commissioner that affect the rights and obligations of the individual and the public authority, as distinct from the reasons set out in the Decision Notice.’ Whether or not an appeal is so limited, the First-tier Tribunal’s case management powers allow it to manage a case where only the reasoning is challenged.

14.      In practice, the scope of an appeal is limited by the powers conferred on the tribunal. Those powers are set out in section 58. Leaving aside discretion, the tribunal has to decide whether the decision notice was in accordance with law. This effectively limits the scope of the appeal, but requires the tribunal to consider the lawfulness of the decision notice without restriction or qualification. There is nothing in section 58 that implies that cross-appeals are required. Quite the reverse. It is sufficiently wide to allow a tribunal to deal with a point that was not raised by the appellant, whether it does so of its own initiative or at the request of another party.

The nature of an appeal under FOIA

15.      I analysed the nature of the tribunal’s jurisdiction under section 58 in Home Office v Information Commissioner [2012] AACR 32:

57.    As to the function of the section, the First-tier Tribunal hears appeals under a variety of legislation. There are various formulations in different legislation, but generally they have in common that the tribunal is required to undertake a fresh consideration of the case on the evidence and arguments put to it. That is what I expect to find in the case of an initial appeal from a decision-maker in a public body, as the tribunal will give the case the first judicial consideration. It is the nature of such an appeal that there is generally no restriction on the issues, evidence or argument that the tribunal can consider. This is, of course, subject to any express or implied limitation.

58.    That is what section 58 does. The tribunal is required to consider whether the Commissioner’s decision notice was in accordance with law. That directs attention to the contents of the notice and the scope of the Commissioner’s duty under section 50. And that directs attention to whether the public authority is required to disclose the information. There is nothing in the language of the section or inherent in the nature of the tribunal’s task to limit the scope of that consideration. In other words, the section imposes the ‘in accordance with the law’ test on the tribunal to decide independently and afresh. It is inherent in that task that the tribunal must consider any relevant issue put [to] it by any of the parties. That includes a new exemption relied on by the public authority.

I applied the same reasoning in the companion case of DEFRA v Information Commissioner and Birkett, also reported as [2012] AACR 32, which arose under the Environmental Information Regulations 2004. My decision in that case was confirmed by the Court of Appeal in Birkett v DEFRA [2011] EWCA Civ 1606, [2012] PTSR 1299.

16.      Both cases raised the issue whether a public authority could rely on different or additional exemptions before the Commissioner or the First-tier Tribunal. Ms Emmerson argued that the cases were limited to that issue and did not affect the issue that arises in this case. I do not accept that. The cases concerned new exemptions, but the reasoning applies generally.

Difficulties of application

17.      Ms Emmerson supported her argument by giving clear-cut examples. I accept that such cases do arise. Suppose that the Information Commissioner decides that the public authority is entitled to rely on exemption A, but not on exemption B. The authority may appeal against the decision notice, arguing that exemption B did apply, whereas the requester may appeal against the notice, arguing that exemption A did not apply. Requiring each party to bring a separate appeal in which the arguments would be self-contained does no harm. There are other cases, however, that are less straightforward. Just to take an example, suppose that only one exemption is in issue. The Commissioner decides that the balance of interests favours the public authority in respect of some information and the requester in respect of other information. Both may wish to challenge the decision notice. In effect, both would be challenging the way in which the Commissioner has struck the public interest balance. Trying to separate the issues and arguments between two appeals, would be difficult and artificial. Ms Emmerson might argue that in the case of such closely interconnected arguments, either a cross-appeal is not necessary or the cases could be consolidated or heard together. But how is anyone, especially a lay party, expected to know whether a cross-appeal is required or not? This is not a decisive consideration, as there will always be borderline issues however the right of appeal is defined. It does, though, support the conclusion that legislation, which involves potential appeals by litigants in person, does not require a cross-appeal.

18.      There is a further difficulty if one of the parties wishes to appeal to the Upper Tribunal. If there are cross-appeals, it is essential that both are before the Upper Tribunal. Otherwise, there is a risk of a decision given by the Upper Tribunal on appeal contradicting the decision of the First-tier Tribunal on the same decision notice in the other case. There are procedural steps that can be taken to avoid such problems, but the need to take those steps and potential for contradictions and inconsistencies make it less likely that FOIA requires cross-appeals.

The rules of procedure

19.      The First-tier Tribunal’s powers are governed by the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI No 1976). They do not deal expressly with the issue whether cross-appeals are required. Rules 22 and 23 deal with the appellant’s notice of appeal and the respondent’s response to the appeal. At best, they are neutral. On the one hand, they are drafted on the assumption that the respondent will not raise fresh issues. This suggests that separate proceedings are required if the respondent wants to challenge the decision notice, but there are general case management powers that allow the tribunal to adapt the process to the needs of the individual case. On the other hand, unlike the rules that apply to the courts and to the Employment Appeal Tribunal, they do not contain any provision for cross-appeals through the respondent’s notice. This suggests that such proceedings were not contemplated, leaving the respondent to raises issue on the appellant’s appeal. I deal in more detail with some of these points in the next section.

H.       The rules of procedure

20.      Two arises arise under this head. How can the First-tier Tribunal ensure that its process is not abused to the detriment of other parties if new issues are raised late in the proceedings? How can the First-tier Tribunal ensure that if cross-appeals are made, they are handled in a way that is efficient way and that minimises the risk of incompatible decisions? I take those questions in turn.

Controlling proceedings

21.      The rules of procedure contain ample provision that allows the tribunal to control the time at which parties are allowed to raise issues. Its has power to regulate its own procedure under rule 5(1), it can give a direction in relation to the conduct of the proceedings under rule 5(2), it can strike out the whole or a part of proceedings under rule 8, and it can limit the issues on which it requires evidence or submissions under rule 15(1)(c). In an appropriate case, it has power under rule 9 to refuse to add a person as a party or to remove a party. The overriding objective under rule 2 has to be applied in the exercise of all those powers. In favour of allowing a party, especially a lay party, to raise issues without making a cross-appeal, are factors such as avoiding unnecessary formality, seeking flexibility in the proceedings, and ensuring that parties are able to participate fully in the proceedings. Against these, the tribunal will have to balance factors such as the impact on any other party, the possible delay to the proceedings, and any failure to co-operate with the tribunal. This is not, and is not to be taken as, a comprehensive statement of relevant factors. The factors to be considered and the proper balance to be struck will depend on the circumstances of the individual case.

Hearing cases together

22.      In my grant of permission, I referred to ‘the practical problems that would arise from running two appeals against the same decision’. I had in mind the problems that would arise in implementing the notice of appeal and response provisions in rules 22 and 23 of the rules of procedure and the risk of having decisions in different terms on the same decision notice. 

23.      Ms Emmerson argued that any practical difficulties involved in cross-appeals could be overcome by consolidating the cases or hearing them together. She cited two cases, one of the former Information Tribunal, the other of the First-tier Tribunal, in which the tribunals had handled cross-appeals. The Information Tribunal case was Hogan and Oxford City Council v Information Commissioner EA/2005/0026 and 0050. The decision expressly says that the cases were consolidated. The First-tier Tribunal case was Slater v Information Commissioner and the Department for Work and Pensions, and Department for Work and Pensions v Information Commissioner and Slater, EA/2013/0145, 0148 and 0149. The decision records that a Registrar had directed that the cases be ‘heard together’.

24.      The First-tier Tribunal has power to consolidate as one of its case management powers under rule 5 of its rules of procedure:

5      Case management powers

(1)     Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

(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—

…

(b)     consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case;

…

(g)     decide the form of any hearing; …

25.      I accept that the First-tier Tribunal has power to hear cross-appeals together. That is a sensible exercise of its powers, as an efficient way of handling the hearing and ensuring that a joint decision is given on the appeals. Any problems with the notice and response provisions can, presumably, be overcome by a general direction under rule 5(2).

26.      Without having heard argument on the issue, I doubt whether the tribunal has power to consolidate cross-appeals. I am not aware of any caselaw on the nature of consolidation as a way of managing cross-appeals. The Civil Procedure Rules (CPR) provide for courts to consolidate under rule 3.1(2)(g). The notes in the White Book (3.1.10) deal with claims. They say that ‘Two claims cannot be consolidated where the claimant in one claim is the defendant in the other …’ and cite Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601 on the problems that arise when different representatives appear for parties who are now joint claimants. Pearson LJ said (at 620);

‘I am not saying that it would be impossible ever in any case to have separate representation, wholly or partly, in a consolidated action. It is not very easy to envisage such cases; but they can arise …’

27.      These difficulties may explain why the CPR do not use consolidation as a way of managing cross-appeals; they do not even use the expression. Instead, they use the respondent’s notice as the device for managing a cross-challenge to the decision below (CPR r52.5), thereby retaining the process within a single proceedings. The Employment Appeal Tribunal Rules 1993 (SI No 2854) do use the expression cross-appeal, but as in the CPR the process operates within the same proceedings through the respondent’s answer (rule 6). The rules of procedure for the First-tier Tribunal and Upper Tribunal, which are modelled in many respects on the CPR, do not adopt the respondent’s notice procedure.

28.      In any event, consolidation is never necessary. I am not aware of any modern rules of procedure that allow consolidation without also providing for cases to be heard together.

29.      Given that consolidation may not apply to cross-appeals and is never necessary, I always follow the approach taken by the Registrar in Slater of directing that cases be heard together. This accords with the academic view. Zuckerman on Civil Procedure (3^rd edition at paragraph 13.12) describes consolidation of claims as an ‘arcane process’ and recommends that it be abolished, leaving the court to direct that cases be tried together as authorised by CPR r3.1(2)(h). All the more reason not to extend consolidation to appeals.

I.         How does this apply to Mr John’s case

30.      I began my analysis by responding to Ms Emmerson’s invitation to clarify the position on cross-appeals. Having done that, it is now time to apply those principles to Mr John’s case.

When did Mr John make his request?

31.      Section 10(1) requires a public authority to respond to a request ‘promptly and in any event not later that the twentieth working day following the date of receipt.’ Mr John argued that that set two conditions: (i) the public authority should respond promptly; (ii) and no later than the 20th day. He criticised the Commissioner for not dealing with the promptness issue. That issue depends on when Mr John made his request under FOIA.

32.      The issue for me is not whether the Commissioner handled the complaint correctly, but whether the tribunal made an error of law in its decision. The tribunal found that Mr John’s initial email of 31 May was a request under FOIA. That was wrong. He did not put it as such; what he did was to ask a general question, leaving to Ofsted the power to treat it as such if necessary. In the event, it was not necessary to do so. He did not ask for information; what he asked for was an explanation of Ofsted’s practice. Ofsted’s answer set out its practice generally, which was what Mr John had asked for. Its reply was adequate, and it was able to give it without relying on FOIA.

33.      As Mr John had not made a FOIA request on 31 May, his letter of 10 June could not require Ofsted to undertake an internal review. Ofsted was right to refuse to do so.

34.      Mr John’s letter of 10 June contained much more detailed requests than his previous email. I cannot read it as merely clarifying what he had requested in his email. It was certainly supplementary to the original request, but Ofsted could not have been expected to interpret the email as covering the information that he sought in the letter. The First-tier Tribunal decided in the alternative that the letter was a further request. Given my interpretation of the email, I do not accept that. The letter was not an additional request under FOIA; it was Mr John’s first request under FOIA. Ofsted replied on 28 June. That was within the 20 days under section 10(1).

35.      I am sure that Mr John sees continuity in his correspondence with Ofsted. I do not know what he had in mind when he wrote to Ofsted on each occasions. But having read his correspondence, it is clear to me that his requests developed beyond merely spelling out in more detail what he had already asked for.

Did Ofsted deal promptly with the request?

36.      The tribunal did not deal with Mr John’s argument on promptness. It did not say why not. If the tribunal overlooked it, that was an error of law. If it regarded it as outside the scope of Ofsted’s appeal, that was wrong also. Even if Ms Emmerson’s argument on cross-appeals were correct, section 10(1) cannot be severed into separate components. It would be artificial to treat Ofsted as merely challenging the 20 days issue, leaving Mr John to raise his promptness issue as a cross-appeal. The two elements of section 10(1) are too closely connected to allow that. Mr John was entitled to raise his promptness point by way of response to Ofsted’s appeal. Although the tribunal made an error of law, I am able to remedy its failure to deal with this issue by deciding it myself.

37.      Dictionaries show that promptly has a range of meanings. Some relate to attitude, such as willingly or unhesitatingly. Others relate to time, ranging from immediate to without delay. It would be wrong to substitute an expression for the language of the statute. It is, though, necessary to interpret that language. The context of section 10(1) is concerned with time rather than attitude, although the latter can have an impact on the former. It is too demanding to expect a public authority to respond immediately. That would be unattainable. In the context, promptly is more akin to without delay. There are three factors that control the time that a public authority needs to respond. First, there are the resources available to deal with requests. This requires a balance between FOIA applications and the core business of the authority. Second, it may take time to discover whether the authority holds the information requested and, if it does, to extract it and present it in the appropriate form. Third, it may take time to be sure that the information gathered is complete. Time spent doing so, is not time wasted. FOIA is important legislation that imposes obligations on public authorities; they are entitled to take time not only to find the information requested but to ensure as best they can that there is nothing more to be found. It is then necessary to complete the administrative and bureaucratic tasks of presenting the information and obtaining approval for release.

38.      It may be that in some cases it would be appropriate to require a public authority to explain the time that it took to respond to a request. There is no reason to do so in this case. It is sufficient to rely on general knowledge of how organisations work. A FOIA request would have to be registered and passed to the appropriate team. That team would then have to undertake the necessary research to discover whether Ofsted held the information requested or was able to extract it from information held. The answer then had to be composed and approved before it was issued. All that was done well within the limit of 20 days set by section 10(1). I regard that as prompt within the meaning and intendment of the legislation. Mr John has used too demanding a definition of prompt and holds an unrealistic expectation of what a public authority can achieve and is required to achieve in order to comply with section 10(1).

Incomplete information

39.      This is an issue on which it is difficult, although not impossible to challenge a public authority. Ultimately, it is necessary to trust in the integrity of the individuals within the authority. It is easy to argue that an authority has not disclosed all that it holds. Inevitably, most such allegations are based on suspicious with little (if anything) objective to support them. It is then for the tribunal to decide on the probabilities whether or not the allegations merit further enquiry. Having read the correspondence in this case, and seen how Mr John’s criticisms of Ofsted have developed, I do not consider that there is any basis for conducting any further enquiries of Ofsted.

40.      Mr John has made allegations of deliberate concealment. There is no basis to justify investigating them, let alone evidence to substantiate them. They help to confirm my view that the allegations of incomplete disclosure do not justify investigation.

J.        Disposal

41.      Although the First-tier Tribunal came to the right decision, there are mistakes and omissions in its reasoning. I could have exercised my power under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set aside the decision despite the errors. I have preferred to set it aside and substitute a decision to the same effect, as my decision is based on a different analysis of Mr John’s correspondence and I have dealt with issues that the tribunal did not consider.

 

Signed on original on 6 October 2014

Edward Jacobs Upper Tribunal Judge