[2023] UKUT 157 (AAC)

It follows from my conclusion on ground b. that the FTT decision falls to be set aside. As to whether this tribunal should remit the case to the FTT for reconsideration, or re-make the decision, it seems to me that on the issue on which I have found the FTT decision erred – broadly, the application of the exemptions in s41 and s43 and, specifically, the weight to be put on ‘tutors’ advantage’ in the public interest balance test – the decision-making tribunal will need to hear, assess and weigh up all the evidence. An appropriate panel of the specialist and fact-finding tribunal looking at the case afresh is best-positioned for this. I therefore decline to remake the decision and have directed a rehearing before the FTT.

In the light of this, it is unnecessary for me to determine ground c.; the issue raised in ground c. will be subsumed in matters considered at the remitted hearing.

In contrast, ground a. is a distinct issue to the one in which I have found there to be an error of law and, given my conclusions on it above, it will not be necessary to revisit the question of whether TBGS held the statistician’s report; I have accordingly made direction ii. on the terms set out above.