[2025] UKUT 308 (AAC)

Appeal No. UA-2023-001104-GIA

Clare Page

Appellant

-v-

The Information Commissioner

1^st Respondent

&

School of Sexuality Education

2^nd Respondent

Before: Upper Tribunal Judge Mitchell

Hearing: 16 & 17 September 2024, Rolls Building, Fetter Lane, London

Representation:

Appellant: Jonathan Moss, of counsel, instructed by Sinclairs Law solicitors.

1^st Respondent: Will Perry, of counsel, instructed by solicitor to The Information Commissioner.

2^nd Respondent: Susan Wright, of counsel, instructed on a direct access basis.

On appeal from:

Tribunal: First-tier Tribunal (General Regulatory Chamber)

Tribunal ref: EA 2022/0330

Date of decision: 6 June 2023

SUMMARY OF DECISION

93. Information Rights.

93.4. Freedom of information – absolute exemptions.

Judicial summary

The First-tier Tribunal did not err in law in holding that a parent was not entitled, under section 405 of the Education Act 1996 (the parental right to request a pupil’s excusal from relevant sex education), to be provided with sex education teaching materials relating to a sex education lesson after it had taken place. Section 405 is to be construed as imposing an implied obligation to provide parents with information about proposed relevant sex education although this is not necessarily a right to be provided with all teaching materials. In the Appellant’s case, information was sought in relation to sex education that had already been provided so that the information could not have been sought for the purposes of deciding whether to exercise parental rights under section 405.

The First-tier Tribunal did not err in law in deciding, for the purposes of section 41 of the Freedom of Information Act 2000, that disclosure of sex education teaching materials, prepared by an organisation commissioned to provide sex education at a maintained school, would constitute an actionable breach of confidence. The Tribunal dealt properly with the case before it, which bore little resemblance to the highly developed case on the law of confidence that was argued before the Upper Tribunal. Had that case been put to the First-tier Tribunal, the outcome might have been different but an appeal to the Upper Tribunal limited to points of law cannot be used to remedy perceived shortcomings in a party’s case before the First-tier Tribunal.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge and members follow.

DECISIONS OF THE UPPER TRIBUNAL

The Appellant is granted permission to appeal against the First-tier Tribunal’s decision (ref. EA 2022/230) to the extent described below in paragraph 243.

The decision of the First-tier Tribunal (ref. EA 2022/230) did not involve the making of an error on a point of law. This appeal is DISMISSED under section 12(1) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION