[2023] UKUT 170 (AAC)

The starting point must be the legislation. Section 3(1) of TCEA 2007 provides for the establishment of the First-tier Tribunal. Section 4 makes provision for judges and other members of the FTT, and Schedule 2 to the Act deals with their appointment and related matters. As to the composition of tribunals, paragraph 15(1) of Schedule 4 to TCEA 2007 requires the Lord Chancellor by order to make provision “in relation to every matter that may fall to be decided by the First-tier Tribunal … for determining the number of members of the tribunal who are to decide the matter.” Article 2 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI 2008/2835), at least as originally enacted, in effect provided for the Senior President of Tribunals to stipulate the number of members for any particular category of case by way of a practice statement.

The paperchase then continues with the Senior President’s Practice Statement on the Composition of Tribunals in relation to matters that fall to be decided by the General Regulatory Chamber on or after 6 March 2015 (this has since been replaced and revised by a Practice Direction). The 2015 Practice Statement (which was in force at the material time) provided that “a decision that disposes of proceedings … must be made as set out in the following paragraphs” (paragraph 3). Those paragraphs included paragraph 10(1), providing that (subject to certain exceptions which do not apply here) a FOIA appeal must be determined by “one judge and two other members, where each other member has substantial experience of data protection or of freedom of information (including environmental information) rights”. The default position in such cases is thus a three-person FTT.

However, paragraph 15(6) of Schedule 4 to TCEA 2007 provides an exception as follows:

The effect of paragraph 15(6) is that a party can agree to a case being decided by a ‘short’ tribunal comprising two judicial office holders rather than the usual three-member panel. The mischief at which the provision is directed is obvious – a case may be listed before a three-person tribunal but at the last minute (such that a substitute cannot be called up) one panel member is unable to be present, e.g. because of illness or severe travel problems (see e.g. PH v Secretary of State for Work and Pensions (ESA) [2015] UKUT 553 (AAC)). However, on one reading at least, paragraph 15(6) does not envisage that a missing member can then either join or re-join the panel later (even assuming that they have access to a transcript or recording of the missing session).

A similar (but not identical) provision was in issue in R (on the application of Hill). The Institute’s Bye-laws provided for a three-person internal tribunal to hear disciplinary complaints. Bye-law 19(2) provided that if any panel member was “for any reason unable to attend the hearing”, or was “in the course of the hearing unable to continue to so attend”, then “the remaining members, if not less than two in number, may at their discretion proceed or continue with the hearing; but if the defendant is present or represented at the hearing, they shall do so only if he or his representative consents”. The applicant’s argument on appeal was that since Bye-law 19(2) was the only provision dealing with departure, it must follow that departure and return of a member was not allowed, even if the parties agreed.

Longmore LJ, giving the lead judgment in the Court of Appeal, rejected this submission in the following terms (NB: Mr Hamer was counsel for the applicant, Mr Mander was the ‘absentee’ panel member):

Mr White, for the Commissioner, supported by Mr Fitzsimons for the Council, submits that Bye-law 19(2) and paragraph 15(6) of Schedule 4 to the TCEA 2007 are essentially analogous, and that the Court of Appeal’s analysis of Bye-law 19(2) (as extracted above) is directly applicable in the present context, at least so far as paragraphs 11 and 12 of the Court’s judgment are concerned (it being acknowledged that the factor identified in paragraph 13 has no purchase in the current circumstances).

I find this submission unpersuasive for two main reasons.

First, although the two provisions may be similar in effect, they are by no means drafted in identical terms. As such, I do not accept that there is a direct read-across to the instant case from the Court of Appeal’s reasoning in R (on the application of Hill).

As to paragraph 11 of the Court of Appeal’s judgment, while tribunals may not be as formal as courts, they are creatures of statute in a way that most internal disciplinary tribunals are not. I would venture to suggest that most judicial office holders in tribunals would be very surprised to be told that their informal procedures permit “one member to depart and return” even if all parties agreed.

As to paragraph 12 of the Court of Appeal’s judgment, this turns on the specific language of Bye-law 19(2), with its focus on an “inability” to attend. Longmore LJ specifically noted that on the facts of that case the missing member “was unable to attend for a comparatively short time in the six day hearing. The Bye-laws just do not provide for that situation.” By contrast, Mr Palmer-Dunk was absent for the whole of the one effective hearing day of Mr Shipton’s appeal and missed hearing all the live evidence in real time. The statute, again in contrast, does provide for just such a situation in paragraph 15(6) of Schedule 4 to the TCEA 2007.

The second reason turns on the language of paragraph 15(6) itself. The usual rule for this type of case, as we have seen, is that the FTT must comprise a judge and two specialist members. Paragraph 15(6) provides an exception or easement to that requirement. It permits, with the parties’ consent, the matter to “be decided in the absence of one or more (but not all) of the members chosen to decide the matter”. Here the use of the verb “decide” is significant. The concept of decision-making in tribunals has been described as a “seamless web” by Upper Tribunal Judges Mesher and Ward in MB v Secretary of State for Work and Pensions (ESA & DLA) [2013] UKUT 111 (AAC); [2014] AACR 1 at paragraph 27:

In the present case Mr Palmer-Dunk had been engaged in the pre-hearing process of preparation and the earlier abortive hearing on 27 July 2022. To that extent he had already been involved in the decision-making process of Mr Shipton’s appeal. For whatever reason, he was then not available for the main effective hearing on 17 August 2022. At that point, given Mr Palmer-Dunk’s absence, the FTT judge should have invoked paragraph 15(6) to establish whether the parties were prepared to continue with a two-person tribunal. There is no sensible reading which allows paragraph 15(6) to be read so as to allow a tribunal member to stay on board but to dip in and out of a hearing.

This construction does not involve undue formality or rigidity. The Practice Statement, made under the authority of statute, requires a three-person tribunal panel to hear most FOIA appeals. Paragraph 15(6) provides for an exception to that otherwise mandatory requirement. It does not give a licence for a tribunal panel’s composition to morph over time, even with the parties’ consent, from a three-person panel to a two-person panel and then back again to a three-person panel. If this were permissible on one occasion there is no reason why it should not be permissible on more than one occasion, which would plainly be undesirable. I accept that the missing member in this case was able to view a CVP recording of the 17 August 2022 hearing, but that may well have prompted questions that he wished to explore with the witnesses but had no opportunity effectively to do so.

I therefore conclude that the FTT erred in law by failing to have regard to paragraph 15(6) of Schedule 4 to the TCEA 2007 in deciding how to proceed once Mr Palmer-Dunk’s non-availability for the hearing on 17 August 2022 had become an issue. Having made that finding, I deal later with the appropriate mode of disposal of this appeal.

Before leaving this aspect of the appeal, I should make it clear that nothing that I have said in this decision should be taken in any way as a criticism of Mr Palmer-Dunk personally.

In the event that I happen to be in error on the issue of the FTT panel’s composition, based on the legislative context, I need to address the natural justice aspect of Mr Shipton’s appeal.