[2024] UKUT 178 (AAC)

Mr Dally rejects the argument that he has changed position regarding the nature of the Council’s misrepresentation. He argues that his position has not changed, rather it has “evolved due to the fact that further facts had been disclosed by the Commissioner in the DN”. Mr Dally goes on:

his 8 November 2019 request for review of the Council’s refusal to disclose the withheld information argued that the Council made misrepresentations when seeking legal advice about whether MDH’s activities were licensable. Mr Dally wrote:

the Council’s letter to the local MP/RSPCA indicated that it had received legal advice to the effect that kennelling of stray dogs for up to 24 hours was not a licensable activity under the 2018 Regulations. At the internal review stage, Mr Dally did not know that the legal advice was sought several years ago (he learnt of this in the Commissioner’s subsequent decision notice). Mr Dally reasonably assumed “at the time” that the advice was sought much more recently since it was described as advice about the kennelling of dogs under the 2018 Regulations, which had only recently come into force. He did not know, and could not have known, that the Council misrepresented this legal advice until made aware that the advice was sought ‘several years ago’. Mr Dally’s reliance on the letter to the local MP/RSPCA cannot properly be construed as him changing his position regarding the nature of the alleged misrepresentation;

regarding the advice that the Council received from DEFRA, Mr Dally’s stance has been consistent. The Council misrepresented that DEFRA had confirmed that kennelling of dogs at MDH did not require a licence. The Council did not provide DEFRA with any description of MDH’s activities so that DEFRA’s response could not properly have been read as confirmation that MDH did not require a licence;

before the First-tier Tribunal, Mr Dally argued that the letters to the local MP/RSPCA did not indicate that legal advice was received some time ago. The Council wrote that advice had been sought “on this matter”, which could only have been reasonably read as a reference to the subject matter of the letter namely whether MDH was exempt from licensing under the 2018 Regulations. Moreover, this letter was written in response to a RSPCA enquiry about the application of the 2018 Regulations to MDH. Mr Dally did not, as the Commissioner now argues, at any point submit that the Council must have received incorrect advice. At all times, his case was that the Council could not have accurately described the advice received.

the Commissioner’s first formulation of the asserted misrepresentation does not reflect ‘historical truth’. In any event, the Commissioner appears to concede that the Council sought legal advice on the basis that MDH “operates as a charity-rehoming centre/reception centre for stray dogs and that those dogs are then transported to licensed facilities for boarding”. While the actual basis on which advice was sought remains unknown to Mr Dally, he submits that the Commissioner’s argument show that, upon seeking advice, the Council did not disclose that MDH kennelled dogs on behalf of the Council for up to 24 hours in return for a fee. Whatever the basis for the advice and the precise nature of the arrangements made with MDH, the Council must have known that it was incorrect to describe their legal advice as having confirmed that stray dog kennelling by MDH for up to 24 hours was not licensable under the 2018 Regulations. The Council must also have known that DEFRA had not been asked to advise whether a licence was required by MDH;

the supposed second formulation – advice may not have been received about MDH’s need to obtain a licence – was based on paragraph 39 of the Commissioner’s decision notice, which stated that the advice did not relate to the requirement for any premises to have a licence. Mr Dally was entitled to take that statement at face value until the Commissioner subsequently conceded that it was an inaccurate description. This supposed second formulation of the misrepresentation was attributable to the Commissioner’s mistake, not any change of position by Mr Dally;