[2024] UKUT 178 (AAC)

I note that Mr Dally does not seek disclosure [of information in the form of legal advice to which section 42(1) of FOIA applies] as part of a dispute directly connected to the subject matter of the advice…

I grant Mr Dally permission to appeal on the ground that the First-tier Tribunal arguably erred in law by making findings of fact for which there was no supporting evidence and / or failed to give adequate reasons for its findings of fact. The findings of fact in question are:

the finding that the council’s March 2019 letter ‘explicitly stated’ that advice was taken some time ago. The third page of the letter refers to ‘previous legal advice’ but I cannot identify any part of the letter which says more than that the advice was taken at some point in the past which could, of course, be either fairly recently or some time ago. This aspect of the tribunal’s reasons related to Mr Dally’s argument that the council misrepresented that it had taken legal advice about the application of the 2018 Regulations to MDH and the council’s stray dog arrangements;

the finding that DEFRA confirmed that the council’s “interpretation is correct”. Currently, and subject to the Commissioner’s response to this appeal, my reading of the Tribunal’s reasons is that it found DEFRA had confirmed its agreement with the council’s view that its particular arrangements for discharging its statutory responsibilities in relation to stray dogs complied with the law. The Council’s email of 19 February 2019 asked DEFRA whether a charity rehoming centre and a stray dog reception centre would be required to be licensed. DEFRA’s response was simply “the intention was not to catch rehoming centres or stray dog reception centres”. The Council’s letter of March 2019, after a detailed description of the relevant contractual arrangements, stated that DEFRA “has confirmed that the licensing regimes does not apply to stray dog rehoming or reception centres of this nature”. Arguably, the Tribunal’s reasons failed adequately to explain why DEFRA’s very general statement amounted to confirmation that the Council’s interpretation of the law, as it applied to the Council’s arrangements, was correct.

It is at least arguable that the above findings led to the Tribunal failing adequately to deal with Mr Dally’s argument that the factors tending to support the public interest in disclosure of the withheld legal advice included the Council’s misrepresentation of advice received about the lawfulness of its arrangements for dealing with stray dogs in its area. This is the second ground of appeal.”