[2024] UKUT 206 (AAC)

The jurisdiction of the FTT in this case was broad and, in concept, simple – had the challenged IC decision wrongly applied the law?

A litigant in person in person, like Mrs Farnsworth, will not be across the ins and outs of the law. What such litigants will therefore often do – as Mrs Farnsworth did in this case – is simply throw before the tribunal all the reasons she believes the challenged decision is wrong.

In such cases it is for the tribunal, on an application to strike out under rule 8(3)(c), to look at those reasons, reasonably and realistically and with fairness and justice firmly in mind, and decide whether they disclose a realistic case that, in this case, the challenged IC decision wrongly applied the law.

Here, the text Mrs Farnsworth inserted in box 5a (“grounds of appeal”) of her FTT appeal form (of 17 January 2023), was 28 words long; it expressed what she wanted to get out of the information she requested (to see if the DLP report, as she called it, recommended “another proposal”) – it did not therefore give any reason to think the challenged IC decision had wrongly applied the law. It did, however, refer to her attached “notes” – these ran to 31 pages. They included the following:

In my view, it is reasonably clear from what is noted above that Mrs Farnsworth felt that she had been interacting with “DLP Consultants” during a significant part of the planning application process and, for various reasons, wanted to see the report that DLP had written and given to the council. It is reasonably clear that, from her perspective, the DLP report is something distinct and self-standing; she does not regard it as the “draft” of what later appeared on the council’s website. (The fact that, in an email to IC, Mrs Farnsworth adopted IC’s approach of referring to the requested information as a “draft “ report, does not affect what I say here, or amount to Mrs Farnsworth “conceding” this point).

Clearly, the challenged IC decision saw matters differently: this was spelled out at paragraphs 13 and 14, cited above. IC asserts that, in the language of regulation 12(4)(d), there was one “document” (presumably, the council’s published notice of decision at page D114 of the FTT bundle and following); and what DLP produced was but a “draft” of that document (and so an “unfinished” version of it); the situation is analogous, IC say, to the council’s employees drafting a document that is later finalised and published by the council.

I am not here deciding whose interpretation of these matters is correct; but it does seem to me clear from the materials sent with her FTT appeal form that Mrs Farnsworth has a position that engages the question of whether the challenged IC decision erred in law – and her position is that it did, because the DLP report was a distinct (and complete) document (rather than a “draft”). The fact that, being a litigant in person, Mrs Farnsworth did not articulate her appeal grounds in this fashion, is not determinative; the tribunal has the “enabling” role described at paragraph 20 above.

I therefore do not accept IC’s primary submission: in my view, the FTT decision did not do justice to Mrs Farnsworth’s case as was reasonably evident from her FTT appeal form, and so erred in law in deciding that her appeal did not engage the tribunal’s jurisdiction.

As to IC’s alternative submission – in essence, that Mrs Farnsworth’s argument is fanciful, because it is well-settled that “draft” documents are “unfinished documents” – it will be evident from the foregoing that, in my view, the true issue raised by the appeal is whether whatever report DLP delivered to the council, is, for the purposes of regulation 12(4)(d), the same “document” as that published by the council. On the authorities, it may be Highways England v IC & Manisty at [31] is in point, where it is said that the exception in regulation 12(4)(d)

In my view the evidence it seems, from her FTT appeal form, that Mrs Farnsworth would be likely to give (that DLP had a standalone role in the planning application – and so their report to the council was not, in the circumstances, a “unfinished” version of what the council later published) – gives her argument the required degree of conviction to be “realistic” as opposed to “fanciful”; it obviously differs from the perspective of the challenged IC decision, at paragraphs 13 and 14 (as cited above); and so it will be the job of the FTT, at least in part, to determine which version is right, based on all the evidence put before it.

I do not therefore accept IC’s “alternative” argument, that the FTT decision’s error in not fairly and justly identifying Mrs Farnsworth’s grounds of appeal, was an immaterial one.

It follows that the FTT decision erred in law materially and so falls to be set aside. IC submitted that, in such circumstances, I should remit the case for reconsideration, rather than remake the decision (on strike out) myself. This does not, however, seem to me the fair and just option in this case, in part because, as part of considering arguments about the “materiality” of the FTT decision’s error, I have just covered the very issues that would be considered on a remitted case, namely, whether Mrs Farnsworth’s case carries the conviction required to have a realistic, as opposed to fanciful, prospect of success. More fundamentally, I am satisfied that I am in as good a position as the FTT to resolve that issue: it does require a view being taken on the evidential strength of Mrs Farnsworth’s case; however, as the authorities caution, a mini-trial is to be avoided, and the volume of evidence I have had to consider is relatively small. I have therefore decided to remake the decision and, consonant with my thinking above, my remade decision is to refuse the application for strike-out, as I consider Mrs Farnsworth’s case, as I have articulated it, to have sufficient evidential and legal basis to merit consideration by the FTT.

As a postscript (as these are not, strictly, matters for the Upper Tribunal), I add that my expectation is that Mrs Farnsworth’s appeal will now progress to full hearing before the FTT; and that it would seem appropriate for the FTT hearing the appeal to have sight of this decision as part of their appeal papers.