[2024] UKUT 83 (AAC)

I can find no flaw in that reasoning insofar as it relates to the grounds submitted when Mr Tilson lodged his appeal. The reasoning on his response to the proposed strike out is another matter. That response does contain a lot of material that relates to the practice the council should have followed. The First-tier Tribunal appears to have overlooked paragraph 24, which begins: ‘The Appellant is not content with the finding that the Council does not hold the information requested.’ That is a challenge to the Commissioner’s finding. It is an issue that the First-tier Tribunal had jurisdiction to consider. The tribunal’s reasoning does not deal with that argument.

That failure by the tribunal to consider the whole of Mr Tilson’s response is sufficient to satisfy the test for giving permission to appeal.

There is now more information available than was before the First-tier Tribunal. Mr Tilson has since been to the Ombudsman and the council has provided its event log, which shows that it inserted into its portal a ‘Statement and 3^rd Party Reps – Peter Tilson’ on 14 November 2019 at 14:43. That record has not been produced before and casts doubt on the reliability of the council’s previous evidence. It shows that it did at one time hold information provided by Mr Tilson. That fact, together with the numerous citations provided by Mr Tilson to show the council’s responsibilities on retaining documents, place a practical burden on the council to justify its assertion that it does not hold the information requested.

Just to avoid any misunderstand, the issue on this appeal is whether the tribunal was wrong to strike out the proceedings on Mr Tilson’s appeal. The Upper Tribunal is not concerned with the separate issue whether the council holds the information he requested.