[2025] UKUT 114 (AAC)

Weight to be afforded to the qualified person’s opinion

Before the Tribunal, the Cabinet Office relied on the well-established principle that it should give appropriate weight to the views of the qualified person, entrusted by Parliament to make the decision under s.36. In Malnick, the Tribunal’s consideration of the public interest balancing test had been “flawed by the FTT either ascribing no weight at all to the QP’s opinion or, if it did, failing to give it appropriate weight” (at [65]). The Tribunal recited that principle, at [35], but failed to act accordingly.

The ICO disagreed that a qualified person’s opinion “carries substantial inherent weight”, calling that a “misreading” of the Court of Appeal’s dictum in Department of Work and Pensions v IC & Zola [2016] EWCA Civ 758; [2017] 1 WLR 1 (“Zola”) that it “is clearly important that appropriate consideration should be given to the opinion of the qualified person”. It was not clear how that could be squared with Malnick, in which the Upper Tribunal at [29] cited Lloyd Jones LJ’s dictum in Zola and remarked that “although the opinion of the QP is not conclusive as to prejudice … it is to be afforded a measure of respect”; it went on to uphold the appeal on the basis that the Tribunal had erred by failing to give the qualified person’s opinion any, or any appropriate, weight (at [65]). Again, it might be that that was a semantic question and there was in fact no material difference between the parties on the point.

It appeared that, aside from that (possible) divergence, the ICO agreed with that criticism of the decision.

It was incumbent on the Tribunal to explain how and why it disagreed with the qualified person’s opinion as to the public interest balancing test. It failed to discharge that burden. It appeared to have considered that Mr Dowden’s opinion was undermined by the fact that he could not have been aware of certain circumstances at the time (at [45]), but did not say so expressly nor explain why that should be so. The decision failed to engage with the factors which Mr Dowden identified, and the balance he reached, in the context of his role as qualified person.

Moreover, it was wrong for the Tribunal to dismiss the later opinions of other qualified persons (namely Chloe Smith and Baroness Neville-Rolfe) in such a peremptory fashion at [45]. Having (seemingly) relied on the chronology to rob Mr Dowden’s opinion of the weight which it was due, the Tribunal should have engaged with the substance of subsequent considerations by qualified persons which did have the advantage of the relevant information.

As set out below, the Tribunal’s consideration of the weight to be afforded to the qualified person’s opinion was in any event vitiated by its erroneous regard to irrelevant considerations.