Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 066 (AAC)

Fecha: 14-Ene-2025

Email of 24 March 2020 from A Ltd to HSE

Email of 24 March 2020 from A Ltd to HSE

30.

This was referred to at paragraph 129a of Ms Cloherty’s witness statement. It appears that A Ltd was a third party surveyor engaged by the site developer to undertake sampling of material at the site; and this email forwarded a sample report on the presence of asbestos.

31.

The email is also referred to, it would seem, at [29], in the section of the FTT’s decision headed “Second Respondent’s Response”; it appears in a list of further information identified by HSE as falling within part 11 of Mrs O’Hanlon’s request (but not “identified” as held at the time of the request) – it is item “a” on the list. It is recorded there that “HSE withholds this email from disclosure in reliance on the exception in reg 12(5)(b) and 13”. The section of the decision is not the FTT’s own findings, but a recording of submissions received from the parties.

32.

The question here is whether, had the FTT not erred – i.e. if it had recognised that this email was within the scope of Mrs O’Hanlon’s information request – would the FTT have been bound to find that regulations 12(5)(b) and 12(1)(b) applied (as it found for information in other parts of Mrs O’Hanlon’s request, such as part 2 (complaints from public/councillors/MP) and part 11 (HSE/MP/council/developer correspondence), such that HSE could refuse disclosure.

33.

Mr Tabori’s argument, which I essentially accept, is that the reasoning adopted by the FTT in considering information in parts 2 and 11 of Mrs O’Hanlon’s information, is such that the FTT would be bound to come to the same conclusion as regards this email. This is because:

much of the reasoning which the FTT applies to communication of the HSE with complainants (section 2) and with other third parties and the person being investigated by HSE (part 11) applies to A Ltd: in particular, the reasoning about the adverse effect on investigations (in the form of detriment to voluntary disclosure to, and cooperation with, HSE during investigations) if third parties’ association with a party found in breach is disclosed; and

the FTT’s evident high degree of confidence in Ms Cloherty’s evidence, combined with the reasoning at paragraph 130 of her statement that is specifically directed to the adverse effect of disclosure of communications between HSE and A Ltd. The reasoning at paragraph 130 is that disclosure of information could be detrimental to the third party with which HSE was communicating (here, A Ltd), as it could link that third party to the health and safety failure associated with the “duty-holder” being investigated. The paragraph emphasised that, here, A Ltd was a third party, not itself being investigated for health and safety failings. Disclosure of such information would make third parties, like A Ltd, likely to be less cooperative regarding the provision of information; this would ultimately impact on HSE’s ability to regulate and enforce health and safety legislation.