[2025] UKUT 99 (AAC)

Under section 12 of the TCEA 2007, I have power where I conclude that the First-tier Tribunal has erred in law to set the decision aside and either remit the case for re-determination by the same or a fresh Tribunal or to re-make the decision myself. If remitting, I can make directions as to the scope of the remitted hearing: see generally Sarkar v SSHD [2014] EWCA Civ 195, [2014] Imm AR 911 at [15].

In this case, there is no challenge on this appeal to the First-tier Tribunal’s conclusion that ONS was not entitled to rely on section 14(1) in relation DPR 188. That part of the First-tier Tribunal’s decision is not disturbed by this appeal. To the extent that I need formally to ‘remake’ that part of the decision in order to preserve it following this appeal, I do so.

It follows from my decision above that it was perverse for the First-tier Tribunal to regard the appeal as not including a challenge to the ICO’s conclusion that DPRs 189 and 190 were requests within the meaning of section 1(1) of FOIA. I have concluded that it did. I do not consider, though, that it would be appropriate for me to continue to decide the substantive issue as to whether they were requests within the meaning of section 1(1) of FOIA. While some might think the answer to that question to be obvious, the parties have not on this appeal advanced arguments on this point and there is also the issue (to which I have referred when dealing with Ground (1) above) as to what the First-tier Tribunal should do if it concludes that they were requests for information within the meaning of section 1(1) of FOIA that were requests for the appellant’s personal data. That is an issue on which the appellant, IC and ONS are likely to wish to make submissions.

I also consider that it would not be appropriate for me to re-make the decision as to whether the appellant should have permission to amend his appeal to include appeals on grounds that the ONS was not permitted to rely on section 14(1) in relation to DPR 189 and 190. I acknowledge that the appellant appears to be under the misapprehension that the IC has agreed that I should remake the First-tier Tribunal’s decision by allowing his amendment application, but I did not indicate I might do that and the IC did not agree to that course. I am aware also that the appellant has sought to re-open his case in this respect with the IC, in the light of the First-tier Tribunal’s decision in his appeal in relation to DPR 188, and the IC has indicated that he should instead pursue this through these proceedings. I agree that seems to me to be the appropriate course, but I still do not consider that it would be appropriate for me to decide this issue for myself.

The First-tier Tribunal’s knowledge of this case is far greater than mine and it is much better placed to assess the extent to which DPR 189 and 190 raise the same or different issues to those it has already decided in relation to DPR 188. I have no reason to doubt that the First-tier Tribunal will approach the issues that I am remitting to it with complete professionalism. It would be disproportionate, and not in accordance with the overriding objective, to remit this case to a different Tribunal, given the amount of work that this Tribunal put in to deciding (with scrupulous care) the issues that it did accept were before it.

The case is therefore remitted to the same Tribunal to decide: (i) whether requests DPR 189 and 190 were requests within the meaning of s 1(1) of FOIA; and (ii) whether the appellant should be permitted to amend his appeal to include a challenge to ONS’s reliance on section 14(1) of FOIA in relation to those requests. Depending on the outcome of its decisions on (i) and (ii), the Tribunal will need to continue to deal with the appeal in the usual way. For the appellant’s benefit, I emphasise that the Upper Tribunal does not retain a ‘supervisory’ role over remitted cases.

As the appeal is at an end, I do not consider it would be appropriate to remove ONS as a respondent now. ONS will no doubt wish to consider its position in the light of my decision and may yet wish to participate in the remitted hearing before the First-tier Tribunal.