[2023] UKUT 157 (AAC)

It follows that ground b. has been made out: the FTT decision erred in law in not adequately explaining why it rejected Mr Coombs’ challenge to the evidence of ‘tutors’ advantage’. The error was material in that the FTT found ‘tutors’ advantage’ to be decisive in conducting the public interest balance test. Although the foundation for conducting a public interest balance test is different as between sections 41 and 43, the FTT essentially relied on its s41 public interest balance test in conducting that test for s43 (see [101], final sentence); hence the error of law affects the FTT’s decision with regard to both exemptions.