[2024] UKUT 105 (AAC)

There is nothing in Mr Pitt-Payne’s first complaint. It was unnecessary for the FTT to find or record that Article 14(1) had not been complied with; as we have explained, the appeal before them proceeded on the basis that it had not.

We also reject the second alleged error. The FTT were plainly aware that Article 14(5) provided “limited circumstances” ([175]) in which the Article 14(1) requirement could be avoided. Furthermore, when addressing the residual cohort at [178] the FTT observed in terms that the main Article 14 duty, “cannot be easily avoided, so that ‘disproportionate effect’ is to be construed narrowly”. Accordingly, the FTT were plainly aware that Article 14(5)(a) also provided an exception to the primary duty, which it was incumbent on Experian to establish. It was logical for the FTT to highlight the importance of adopting a narrow construction when they came to consider “disproportionate effect” (rather than when they addressed Article 14(5)(a)) as there was an issue between the parties as to whether the business expense for Experian of directly notifying all of the residual cohort could amount to this.