[2025] UKUT 171 (AAC)

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 30 January 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

At the hearing on 13 February 2025, Counsel representing the ICO and Hampshire Constabulary both invited me to go on to decide, as a matter of law, whether PMPs exercise the judicial power of the state. Counsel for the parties present at the hearing submitted that this approach was consistent with the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008, for the reasons set out in paragraph 24 above.

At paragraph 15 of Sarkar v Secretary of State for the Home Department [2014] EWCA Civ. 195, the Court of Appeal stated the following:

“15.

If it finds that the First-tier Tribunal has made a material error of law the Upper Tribunal may (but need not) set aside its decision. If it decides to do so, it has only two options: to remit the case with directions for its reconsideration or to re-make the decision itself. Remission, however, does not necessarily require the First-tier Tribunal to start all over again; the Upper Tribunal has power to give directions which limit the scope of the reconsideration.”

The FTT made its decision by only considering the exemption in section 32 of FOIA. The power in section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 allows the Upper Tribunal to remit the case to a FTT with directions. The use of “case” is distinct from the wording in section 12(2)(b)(ii), which provides for remaking the decision (my emphasis added). Having considered Sarkar and having considered section 12 of the 2007 Act, I am satisfied that, in the event of concluding the FTT made a material error of law, it is open to the Upper Tribunal to take any of the following steps: (a) decide not to set aside the FTT’s decision, (b) set it aside and remit the case (appeal) to a new FTT with directions about the basis on which the FTT is to decide it or (c) remake the decision (and not remit it to the FTT).

I have therefore proceeded on the basis that all the options set out above are open to the Upper Tribunal. I have decided to set aside the FTT’s decision and to either remake the decision or to remit it to a new FTT with directions about the basis on which the FTT is to decide it (which can include limiting the scope of the reconsideration).