Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 157 (AAC)

Fecha: 05-Jul-2023

The Upper Tribunal proceedings

The Upper Tribunal proceedings

Following a hearing on 2 December 2022, I gave permission to appeal on grounds limited to the following arguable errors of law in the FTT decision:

the FTT decision arguably did not adequately explain its finding (i) that TBGS did not hold a report (arguably within item 1 of the information requested) by an independent statistician commissioned by GLAL, and (ii) that GLAL did not hold that report on TBGS’s behalf, given the context that the following contemporaneous documentary evidence was before the FTT:

the statement in a letter from GLAL to TBGS of 24 September 2019 (D198 of the open bundle) that GLAL would be providing TBGS with the report of the independent statistician appointed by GLAL; and

ii.

statements made in TBGS’s letter to parents and carers of 1 October 2019, and in the letter from GLAL to parents and carers that accompanied it, from which, arguably, the inference might reasonably be made that TBGS was given a copy of the independent statistician’s report, given the reliance being placed on it in those important communications to parents and carers. In particular,

TBGS’s letter (E377 of open bundle) said:

“Along with this letter is a further letter from [GLAL] explaining what actions have been carried out in order to ensure fair and reliable results for all children. Detailed statistical analysis has been carried out and the solution proposed to and accepted by TBGS is robust. TBGS is confident that the issue has been resolved in a fair manner for all children and that the results for testing are robust. This outcome has been verified by an independent statistician”; and

GLAL’s letter (E378-380 of open bundle) contained the following passages:

“… I am writing with further details about the Secondary Transfer Test and the solution we have agreed with [TBGS], following an independent review and verification”.

“[GLAL]’s statisticians have reviewed the test performance in detail and passed their findings to an independent statistician, who has been approved by [TBGS]. Our key findings, which have been independently verified, are outlined below.”

“It is important to reiterate that the independent statistician has verified that the outcome of the test, without those questions, is still fair for all children, highly reliable and above the accepted conventions for admissions tests.”

The arguable error is that, whilst the FTT decision clearly relied on TBGS’s witness evidence to support its finding that the statistician’s report was not held by TBGS – see [93] and [94] – it needed to explain why it preferred this over contemporaneous documentary evidence and/or inferences that may reasonably be drawn from such evidence (see for example Gestmin SCPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) [15-22] as to the significance of contemporaneous documentary evidence).

when considering those items of the requested information which it found were held by TBGS (i.e. the items other than item 1) and conducting a public interest balance test relevant to both exemptions under consideration (on the basis, explained at [7], that the exemption under s41, though “absolute” under s2, imported a ‘public interest’ defence under the general law of breach of confidence), the FTT decision arguably erred in

stating that the evidence to the effect that disclosing these items would give private tutors an unfair advantage, had not been challenged (see [97], final sentence) – arguably, it is clear from [77], [78] (third sentence), and [79] (first two sentences), read together, that Mr Coombs did challenge the proposition that private tutors would obtain any material advantage from disclosure of at least some of the items; in any event, such challenge is arguably clear from paragraph 26 of Mr Coombs’ written closing submissions to the FTT; and, consequently

ii.

inadequately explaining how disclosure of each item (such as, in item 3, the “reliability” and “number of questions” information) would result in that unfair advantage for private tutors: given the challenge from Mr Coombs, it was arguably inadequate for the FTT decision simply to state that it accepted the evidence of TBGS’s witnesses (who were, like Mr Coombs, giving their opinion on a matter of which they did not have first-hand knowledge (as tutors) or objective expertise).

This arguable error, if made out, was material, as the FTT decision assigned “overbearing weight” to the “unfair advantage for private tutors” factor in its public interest balance analysis – see [97], penultimate sentence.

the FTT decision arguably misdirected itself as to the public interest balance test with regard to actionable breach of confidence: whereas, at [7], the FTT decision cited paragraph 38 of Evans v IC & ors [2012] UKUT 313 (AAC), which refers to there being a “public interest balance” under s41 due to the defence of the breach being justified in the public interest, the FTT decision at [100] arguably gives unjustifiable special weight to the public interest in confidence (“very significant public interest factors must be present in order to override the strong public interest in maintaining confidentiality” – emphasis added). Arguably, the same error spilled over into the FTT decision’s public interest balance analysis when considering s43: see [101], final sentence, which refers, in the context of the public interest balance analysis for s43, to the FTT decision’s public interest balance analysis for s41.

Both respondents considered the appeal suitable for determination “on the papers”, and the appellant was content for it to be dealt with in that way. Given these views, and that I had fulsome written submissions from counsel for all three parties, I decided it was fair and just to determine this appeal without a hearing.

I am grateful to counsel for their clear and helpful written submissions.