[2025] UKUT 066 (AAC)

In a decision issued by the Upper Tribunal on 22 November 2023, I gave permission to appeal on the ground that it was perverse of the FTT to find (or, in the alternative, its finding was inadequately explained) that HSE held no other information within the scope of Mrs O’Hanlon’s information request, given

This was the only ground on which permission to appeal was given.

My reasoning for giving permission to appeal on this ground was set out at [18-21] of the permission decision, as follows:

18.

Mrs O’Hanlon argued that (contrary to the FTT’s finding at [64]) HSE held information within the scope of her request that it had not made available.

19.

This argument seems to me to identify a realistically arguable error of law in the FTT’s decision, so far as it relates to information that was

a.

not within that specified at parts 1-11 of Mrs O’Hanlon’s request (as, with regard to that, the FTT explained its decision adequately) but

b.

nevertheless, was arguably within the scope of her request by reason of the “catch all” wording at the start of it (as noted at [3], Mrs O’Hanlon’s request started out by asking for “any documents or correspondence held by the HSE in relation to this site”).

20.

In other words, it seems to me realistically arguable that Mrs O’Hanlon’s request was not restricted to parts 1-11 of her request. In the alternative, it is realistically arguable that the FTT’s decision erred in not explaining adequately why it took the view that Mrs O’Hanlon’s request was so restricted.

21.

The information falling into this category (and not made available by HSE), as identified by Mrs O’Hanlon was:

a.

notification of contravention letters served against Amark, as referred to in Ms Cloherty’s witness statement (dated 14 April 2022) at paragraph 22 (which also said that Amark “disappeared” and HSE was therefore unable to take its investigation any further);

b.

email of 24 March 2020 to HSE from A Ltd, a third party engaged by the site developer to undertake sampling of material at the site, forwarding a sample report on the presence of asbestos (and referred to in Ms Cloherty’s witness statement at paragraph 129a). I note that at paragraph 130 of Ms Cloherty’s witness statement, Ms Cloherty gave her opinion as to why this email is outwith part 11 of Mrs O’Hanlon’s information request, and in anycase covered by regulations 12(5)(b) and 13; however, it is realistically arguable that the FTT’s view of these matters (being questions of law or interpretation, rather than matters of fact) was not adequately explained;

c.

prohibition notice served on the site developer on 6 April 2020 (and referred to at paragraph 18 of Ms Cloherty’s witness statement). I note that the witness statement states Ms Cloherty’s opinion that this notice was not part of Mrs O’Hanlon’s request; however, it is again realistically arguable that the FTT’s views on this (legal) matter were not adequately explained. Mr Tabori’s post-hearing submissions assert that this prohibition notice was publicly available; however, it is odd that Ms Cloherty did not make this point in her witness statement; and, more fundamentally with regard to deciding if an arguable error of law is disclosed here, the FTT’s decision does not appear to have made a finding of fact in the terms of Mr Tabori’s assertion;

d.

email from A Ltd to HSE of 17 March 2020 (Mrs O’Hanlon says this is one of the documents referred to at para 134 of Ms Cloherty’s witness statement (email exchanges between A Ltd and HSE and Amark and HSE)). I note that the witness statement states Ms Cloherty’s opinion that these were not within Mrs O’Hanlon’s request; but it is again realistically arguable that the FTT’s view of this (legal) matter was not adequately explained.