[2025] UKUT 114 (AAC)

I should also say, however, that I do not accept ground 3 of the grounds of appeal (though in oral argument both sides accepted that it was now not necessary to deal with it). Insofar as that ground repeats ground 1, it is sufficient to have accepted the concessions made in that respect by the ICO. Insofar as the ground asserts that the Tribunal effectively abdicated its judicial function and failed to exercise its own independent judgment about the merits of the appeal, I do not accept it.

Given the eight areas of significant divergence between the decision notice of the ICO and the decision of the Tribunal, which I have set out at some length in paragraph 70 above, the submission that there was no sign from the decision of the Tribunal bringing to bear its own judicial analysis to decide the relevant issues afresh, but that it simply adopted (and to some extent embellished) what it understood to be the ICO’s position, summed up under the single word heading “abdication”, is simply untenable.

On the contrary, it is apparent rather that the Tribunal embarked on its own analysis of the issues, of its own motion and without some of them having even been argued by the ICO. It is the position of the parties that it did so defectively, as I have accepted, but it did not simply rubber-stamp what the ICO had decided. Far from it.

Indeed the submission itself was constrained to accept that the first, second, sixth and seventh points were all examples of the Tribunal appearing not to place weight on factors on which the ICO had relied, which is hardly consistent with wholesale abdication of function. The submission went on to suggest that the third, fourth and fifth points highlighted divergences, but then sought to explain them away as being better explained by the Tribunal’s misunderstanding of the ICO’s position than by any exercise of independent judgment. The more compelling explanation is that the Tribunal had not misunderstood the ICO’s position, but that it had perfectly well understood it, but had gone radically (and erroneously) beyond it.

The Cabinet Office argued that “gilding the lily with additional factors did not constitute a substantive difference.” On the contrary, the decision can only be read as a substantive and substantial departure from the decision of the ICO, albeit that the Tribunal reached the same outcome as the ICO, but on radically different (but flawed) grounds.

I therefore reject the third ground of appeal in any event.