[2024] UKUT 105 (AAC)

For the reasons that we have set out above, we reject each of the alleged errors that were advanced as part of the Information Commissioner's Ground 2. In the course of doing so, we have also addressed the secondary basis upon which Mr Pitt-Payne put his case, namely that the FTT’s decision was inadequately reasoned. As we have explained, we have had to undertake a significant amount of inferential work, but, having done so, we are satisfied that the FTT’s reasons were not so inadequate as to amount to an error of law.

As we have not found that the FTT erred in law in relation to Ground 2, it is unnecessary for us to address Ms Proops’ fallback position in any detail. She submitted that any error of law in the FTT’s approach to Article 14 would be academic as it was apparent from the FTT’s findings at [184] that even if they had found that there was a contravention of Article 14, they would also have found that the Information Commissioner should not have exercised her discretion to issue the EN. In the circumstances it will suffice for us to indicate that if we had allowed the appeal in relation to all or part of Ground 2, it is unlikely that we would have been persuaded by this submission. This part of the FTT’s decision was primarily focused upon the terms of a SEN in respect of the residual cohort (where a contravention had been found) and insofar as [184] addressed the position of the main cohort, it did so briefly and on a hypothetical basis (no contravention of Article 14 having been found) and the FTT’s observations were clearly obiter dicta.