[2025] UKUT 308 (AAC)

It is argued that the First-tier Tribunal took into account certain irrelevant considerations in determining that disclosure of the Slides / information within them to the world would cause SoSE detriment. The Appellant’s case on detriment before the Tribunal was that SoSE would not suffer detriment because all providers of sex education should be commissioned by schools on the understanding that teaching materials will be made available to parents, and SoSE’s interests could in any event be protected by copyright. The Appellant’s case on detriment was not highly developed before the Tribunal but that does not prevent her from arguing that irrelevant considerations were taken into account: an irrelevant consideration does not become relevant because it was not presaged in a party’s arguments. However, on analysis, the Appellant’s Ground 3 arguments are not really arguments that irrelevant considerations were taken into account. I shall deal with them anyway.

The Appellant argues that the First-tier Tribunal made a flawed finding that providers were not freely disclosing their materials. The Appellant submits that SoSE provided no evidence about industry norms. Therefore, this is really an argument that there was insufficient evidence to support the finding made. However, this was the Appellant’s appeal, and it would have been open to her to submit evidence about industry norms. The Tribunal’s finding relied on its interpretation of the Secretary of State for Education’s letter of 31 March 2023. The Tribunal was entitled to interpret the Secretary of State’s letter in the way that it did. There was obviously a reason why the Secretary of State thought it necessary to write to all schools in England and, given the terms of the letter, the Tribunal was entitled to find that it was because a certain number of third-party providers of sex education were not freely disclosing their materials.

To the extent that Ground 3 relies on copyright arguments, I agree with the Commissioner that the arguments are, in substance, duplicates of arguments made, and rejected, in support of Ground 2.

The Appellant further argues that the First-tier Tribunal erred by failing to take into account the availability of copyright as a factor lessening any detriment to SoSE occasioned by disclosure. So, this is an argument that the First-tier Tribunal failed to take into account a relevant consideration, rather than an irrelevant one. The Appellant’s case before the Tribunal may be read as including the argument that any detriment was weakened by the availability of copyright (SoSE’s material ‘can be protected by copyright’ was how it was put to the Tribunal). But the argument was dealt with by the Tribunal and, on my reading of its reasons, not dismissed out of hand as irrelevant.

For the above reasons, Ground 3 is not made out.