Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 170 (AAC)

Fecha: 12-Jul-2023

A chronology of the proceedings in the First-tier Tribunal

A chronology of the proceedings in the First-tier Tribunal

It is fair to say the proceedings in the FTT were somewhat protracted. The following account is a sufficient summary for present purposes.

On 26 January 2021 Mr Shipton lodged a notice of appeal with the FTT against the Commissioner’s Decision Notice. In doing so, the Appellant questioned the credibility of the Council’s responses. In short, he argued that the Council had failed to disclose the truth as it did not wish to be found to have mis-sold a property or breached the law. Mr Shipton further alleged that the Council was deliberately withholding and indeed destroying relevant information.

The Commissioner’s initial response was to oppose the Appellant’s appeal to the FTT. However, the Commissioner later noted that during the appeal process the Council had provided further relevant information in response to a separate FOIA request made by Mr Shipton. On 24 November 2021 the Commissioner therefore wrote to the FTT, proposing that the appeal be ended by a consent order, requiring the Council to issue a fresh response. For reasons that need not detain us, the parties were unable to agree the terms of a consent order. As a result the original hearing date of 6 January 2022 was vacated, with the Council being joined as a party to the FTT proceedings.

Joinder of the Council was followed by further case management directions and written submissions from the parties. This process was followed by two hearings, held respectively on 27 July 2022 and 17 August 2022.

The first FTT hearing on 27 July 2022, before a panel comprising Judge Brian Kennedy KC and specialist members Mrs Anne Chafer and Mr Dan Palmer-Dunk, was abortive for reasons explained in its final decision:

36.

A CVP hearing was arranged for 27 July 2022 however, unfortunately, no witness statements or evidence were supplied by the Council prior to the hearing although three members of staff were present to answer questions. This placed both the Appellant and the Tribunal at a disadvantage as there was no opportunity to prepare for cross examination or questions…

10.

The FTT noted at the time both that there several deficiencies in the Council’s case and that the parties had “made further efforts to draw up a Consent Agreement for approval, which unfortunately proved elusive” (paragraph [38]). In the event the FTT agreed to the Council’s application for an adjournment, remarking as follows:

39.

The Tribunal reminded the parties of their obligations under Rule 2 and the Tribunal was persuaded by the Second Respondent that it was their intention to try to reach an appropriate arrangement or agreement with the Appellant, if at all possible or be ready for a full oral hearing with their witnesses and adequate evidence to commence on the 17 August 2022.

11.

In subsequent case management directions dated 17 August 2022, issued after that final hearing, the FTT observed as follows (emphasis added):

The Tribunal sat on Wednesday 17 August 2022 to hear the material and important oral evidence of four witnesses and has now adjourned for final written submissions (on the evidence heard today), from the Appellant and the Second Respondents. The written submissions from both parties should be served on the Tribunal on or before the close of business on Thursday 15th September 2022. One panel member (Mr Palmer-Dunk) was unavailable to attend today but with the parties’ consent the case proceeded in his absence and again with their consent that panel member will be made privy to the recorded evidence and continue to deliberate on the appeal.

12.

The FTT’s final decision included a brief observation to similar effect:

49.

The Tribunal sat on the 17 August 2022. I sat with Mrs Chafer in the absence of Mr Palmer-Dunk with the consent of the parties that Mr Palmer-Dunk would be absent to hear the evidence and questions arising from the witness statements as summarised below. It was also agreed that Mr Palmer-Dunk would be part of the Panel for their deliberations following this hearing.

13.

So far as the outcome of its substantive decision was concerned, the FTT allowed Mr Shipton’s appeal on the basis that the Council held certain information which fell within the scope of his FOIA request that it had not originally provided to him. However, the FTT also held that the Council did not hold certain further information within the scope of the request which Mr Shipton had alleged was held and should be disclosed.