[2025] UKUT 308 (AAC)

Before the First-tier Tribunal, the Appellant did not rely on the ‘public interest of parents’ as relevant to the public interest defence to an action for breach of confidence. The ‘public interest of parents’ generally was not a matter that the Tribunal was bound to factor into its detriment analysis of its own volition, but it did in fact do so (see paragraph 152). The Appellant argues that the Tribunal failed to take into account the general public interest in parents seeing sex education material. However, the Tribunal did in fact take into account a ‘very strong public interest’ in parents being properly aware of materials used to teach sex education (paragraph 152) and a ‘particularly strong public interest’ in access to materials for a concerned parent (paragraph 154). The Tribunal did not err in the manner suggested by the Appellant. The same applies to the arguments that the Tribunal failed to recognise the ongoing public interest of parents after sex education has been provided (see paragraphs 152 and 154), and overlooked that view-only access to the Slides was of less use in support of a parental complaint and in enabling parent-child discussions (see paragraph 158).

The Appellant argues that the First-tier Tribunal failed to give sufficient weight to the need for a mechanism whereby parents and the public may keep sex education materials under review and monitor providers’ compliance with the requirements of education legislation. I find this argument difficult to reconcile with the argument that various matters were simply not taken into account at all but, assuming the argument is qualitatively different, it is not made out. The weight to be given to a relevant consideration is for the Tribunal to determine, and will only be interfered with on an appeal limited to points of law on the ground of perversity (R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 at [70]). The Appellant’s case overlooks this and wrongly assumes that the Upper Tribunal’s jurisdiction permits it to decide for itself what weight should have been given to a particular consideration.

The Appellant argues that SoSE’s offer to enable her to view the Slides should have been left out of account in the public interest analysis because she was not made aware of it. I note that, before the First-tier Tribunal, the Appellant argued that the opportunity to view the Slides afforded by the School was inadequate, but her case did not rely on SoSE’s uncommunicated offer. The Tribunal was putting itself in the shoes of a court dealing with a (notional) action for breach of confidence brought by SoSE. In my judgment, such a court would not be bound to reject as irrelevant evidence that SoSE were prepared to use, as an alternative to disclosure of teaching materials to the entire world, other more targeted means of dealing with parental concerns about the content of teaching materials. The Tribunal was entitled to factor this consideration into its public interest analysis.

The Appellant argues that the Tribunal failed to take into account that the Appellant’s statutory complaint was successful and led to changes in practice. The Appellant does not explain why this was relevant, which is not obvious especially as the Appellant made her complaint without the benefit of having access to the Slides.