[2025] UKUT 177 (AAC)

Applicant: The Information Commissioner

1^st Respondent: The Secretary of State for Health and Social Care

2^nd Respondent: Access Social Care

DETERMINATION OF THE UPPER TRIBUNAL

UPPER TRIBUNAL JUDGE WIKELEY

Decision date: 10 June 2025

ON APPEAL FROM:

Tribunal: First-tier Tribunal (General Regulatory Chamber)

Tribunal Case No: FT/EA/2024/0211

Tribunal Venue: In chambers

Decision Date: 29 November 2024

This front sheet is for the convenience of the parties and does not form part of the decision

[2025] UKUT 177 (AAC)

IN THE UPPER TRIBUNAL Appeal No.UA-2025-000146-GIA

ADMINISTRATIVE APPEALS CHAMBER

On appeal from the First-tier Tribunal (General Regulatory Chamber)

Between:

The Information Commissioner

Applicant

- v -

The Secretary of State for Health and Social Care

1^st Respondent

and

Access Social Care

2^nd Respondent

Before: Upper Tribunal Judge Wikeley

Decision date: 10 June 2025

Representation:

Applicant: Mr Eric Metcalfe of Counsel

1^st Respondent: Mr Christopher Knight of Counsel

2^nd Respondent: No attendance or representation

NOTICE OF DETERMINATION OF

APPLICATION FOR PERMISSION TO APPEAL

I refuse permission to appeal to the Upper Tribunal.

This determination is made under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rules 2, 5, 21 & 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

REASONS FOR DETERMINATION

The subject matter of this application for permission to appeal

1. This application for permission to appeal to the Upper Tribunal concerns an attempt by the Information Commissioner to challenge a case management direction made by the First-tier Tribunal as to which party was to be responsible for the preparation of the open hearing bundle.

The context: the substantive proceedings

2. In May 2023 Access Social Care, a charity, made a Freedom of Information Act (‘FOIA’) request to the Department of Health and Social Care (‘DHSC’ or ‘the Department’) for information about funding for adult social care. In June 2023 the DHSC refused to provide all the information sought on the grounds that it was exempt under FOIA section 35(1)(a) (formulation of government policy). On 3 May 2024 the Information Commissioner, in response to Access to Social Care’s complaint, issued Decision Notice IC-269593-P7Q5. This directed the DHSC to provide the requester with the withheld information. The DHSC then lodged an appeal with the General Regulatory Chamber (‘GRC’) of the First-tier Tribunal (‘FTT’). In the course of preparing for the substantive hearing of the DHSC’s appeal, the FTT directed that the Information Commissioner should prepare the open bundle and that the Department should prepare the closed bundle.

The context: the General Regulatory Chamber’s Bundles Guide

3. In May 2024 the GRC Chamber President issued the latest version of the Chamber’s Bundles Guide for users. This document is divided into three Parts. Part 1 briefly explains the purpose of bundles in proceedings before the FTT, namely:

To help the Tribunal identify the relevant issues and understand the arguments in an appeal, it is important that there is a well-organised bundle of all the documents each side relies upon in support of their case, whether the case is to be considered with a hearing, or without a hearing.

4. Part 2 then sets out a series of more detailed ‘Notes for Unrepresented Appellants’. This includes the following statements:

2.1 Who provides the bundle?

In this Tribunal, because the Respondent (the regulator) is a public body and is usually represented by legal professionals or other officials, they will normally be expected to put together the bundle and send it to you and the Tribunal. …

Sometimes the Respondent may ask the Tribunal to direct that you should provide the bundle, but that is unusual. If that happens a decision will be made by a Tribunal registrar or judge, after considering any comments you have.

5. Part 3 of the Bundles Guide, which deals with ‘Notes for Bundle Providers’, opens with the statement that “The Tribunal usually expects the regulator will be the party that prepares the bundle.” As Mr Metcalfe for the Information Commissioner put it, “that single sentence is the cause of all our misery and woe”. However, that general expectation is subject to potential modification where there is closed material. Paragraph 3.6 relevantly explains:

If the Tribunal needs to see the information in dispute in an Information Rights case, this will need to be placed in a separate “Closed” bundle. When a public authority has joined the proceedings as a second respondent, the Tribunal may ask that they prepare any Closed bundle.

6. That is indeed precisely what happened in the instant case, albeit that the DHSC was the appellant rather than the second respondent.

7. It seems to me self-evident from its tenor that the GRC issued the Bundles Guide in order to provide clarity and consistency of approach on various issues relating to bundles for appeal hearings in its manifold appellate jurisdictions (e.g. responsibility for their production, as well as consistency of content and format). The Bundles Guide is not exclusively devoted to appeals against decision notices by the Information Commissioner. Rather, the GRC hears appeals from a wide range of regulators, large, middling and small. The Bundles Guide adopts as a starting point the position that the regulator will usually have responsibility for preparing the open bundle, given that the regulator will be a respondent in every case and the appeal will inevitably be some form of a challenge to the regulator’s decision.

The saga of the First-tier Tribunal’s case management directions

8. In this case on 5 July 2024 the Information Commissioner requested that the FTT should direct the Department to prepare the bundles for the instant appeal. The Commissioner pointed out that, in civil litigation generally, appellants were responsible for preparing bundles and that this approach was consistent with the overriding objective “given that [DHSC] is the relevant public authority and is legally represented”.

9. On 19 July 2024 the DHSC submitted a note drafted by counsel, inviting the FTT to direct the Commissioner to prepare the open bundle, essentially as this was in line with the FTT’s published guidance in the Bundles Guide.

10. On 2 August 2024 the Information Commissioner filed further detailed submissions, reiterating its request that the Department be directed to prepare the open bundle, in response to the DHSC’s representations.

11. On 25 October 2024 the FTT Judge issued detailed case management directions for the substantive appeal, running to three pages in length. These included (at paragraph 6c) a direction that “the party producing the bundle” (but without actually specifying which party that should be) was required to send a draft index to the other parties for their agreement. Under the heading ‘Reasons’ there were three short sentences, none of which touched on the issue of the responsibility for bundle preparation.

12. On 4 November 2024 the Information Commissioner advised the FTT that the parties had been unable to reach agreement as to which of them should prepare the bundles and repeated its request that the DHSC be directed to undertake this role.

13. On 29 November 2024 the FTT Judge issued a revised version of the case management directions of 25 October 2024. These directions amended paragraph 6c to include the statement that “the Information Commissioner will prepare the open bundle and the Appellant will prepare the closed bundle.” There was no amendment to the very brief reasons provided.

14. On 20 December 2024 the Information Commissioner lodged an application for a review of the decision of 29 November 2024 or in the alternative for permission to appeal.

15. On 2 January 2025 the FTT Judge refused the Information Commissioner’s application, giving the following reasons:

There were no reasons included on the Order dated 29th November. In those circumstances, the Respondent was at liberty to require clarification of the reasons. The Respondent has not done so. Had the Tribunal been asked to clarify its reasons, the Respondent would have been advised that the decision was in accordance with the Bundles Guidance.

It is noted that this is the second appeal from the Respondent against a case management decision about who bears the burden of providing the open bundle; the first case was FT/EA/2024/0136. Rather than make additional applications and creating additional work, the Respondent may be well advised to seek permission from the Upper Tribunal in one case and if given, get guidance that be applied or if refused, accept it is a matter for the First Tier. Sequential applications only serve to delay cases and create extra work for all concerned. The reasons that follow replicate the reasons already given in the first application for permission to appeal which was duly refused.

The Bundles Guidance, primarily aimed at litigants in person, states that the Regulator (in this case the Commissioner) as the Respondent will usually provide the bundle. That paragraph of the Guidance then goes onto explain that on occasion the Appellant may be expected to provide the bundle. For example, contempt proceedings. There is no separate provision in that Guidance as to when the public authority is to provide the bundle save for closed bundles. The 2024 Guidance replicates the understanding of bundles provision prior to the issue of that Guidance. The Guidance was not changing expectations, it was merely formalising them in writing.

The difficulty with the Commissioner’s submission that this public authority has the resources to provide the bundle is that there is then uncertainly and the need for a case-by-case decision as to who is to provide the bundle on each and every appeal. Public authorities like the Secretary of State for Health and Social Care have very different resources to the small parish council. The submission of the Commissioner almost invites the Tribunal to hold a means/resources enquiry before making bundles direction in each case. That would neither be practical nor consistent, and would undoubtedly involve unnecessary additional submissions and extra work.

The Tribunal has issued the Bundles Guidance not only to the Commissioner to but to all Regulators. The Guidance attempts to achieve consistency and certainty amongst numerous Regulators. It would not be in the interests of the overriding objective to have different Bundles Guidance for individual Regulators noting that the Tribunal deals with over 400 appeal rights. It would also not be in the interests of the overriding objective to introduce a resources type argument into every information rights appeal as to whether the Commissioner or public authority should produce the bundle.

The Commissioner states that the submissions about bundles were not repeated in the Order and that the reasons were brief. There is no requirements on the Tribunal to repeat submissions and indeed on an interlocutory application that would be unnecessarily time-consuming. The Tribunal was able to give reasons for its decision when requested and were proportionate to the issue in dispute. It follows that any party can ask for amplification of reasons should they consider it necessary to do so. No application was received.

The Commissioner has not put forward any basis for the Tribunal to consider that the Order dated 29th November was unreasonable or contrary to Rule 1 of the Chamber Rules. The Commissioner simply disagrees with the decision made and the potential precedent it sets. That is not a ground for review or appeal.

In summary, the Tribunal considers that there is no error of law, procedural irregularity or exceptional ground upon which to either review its decision or grant leave to appeal.

Whilst the Chamber is sympathetic as to the resources of the Commissioner, the same challenges also apply to many public authorities and indeed to the Tribunal itself.

The onward challenge

16. The Information Commissioner now applies direct to the Upper Tribunal for permission to appeal.

17. It may be added that the current challenge is just one of (at least) three cases which raise the same issues. The other two cases in the Upper Tribunal are Information Commissioner v Cabinet Office (FTT reference FT/EA/2024/0136; UT reference UA-2025-000159-GIA) and Information Commissioner v Cabinet Office (FT/EA/2024/0431; UA-2025-000682-GIA). Both these applications have been stayed in the Upper Tribunal pending the outcome of the present application.

Applications for permission to appeal: the general principles

18. An appeal to the Upper Tribunal lies only on “any point of law arising from a decision” of the FTT (see section 11(1) of the Tribunals, Courts and Enforcement Act 2007). The Upper Tribunal will give permission to appeal only if there is a realistic prospect of an appeal succeeding, unless there is exceptionally some other good reason to do so: Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538.

19. The error of law must also be material. The Court of Appeal has set out a summary of the main errors of law in its decision in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraph 9. The main examples of where the FTT may go wrong in law include (in plain English):

• the tribunal did not apply the correct law or wrongly interpreted the law;

• the tribunal made a procedural error;

• the tribunal had no evidence, or not enough evidence, to support its decision;

• the tribunal failed to find sufficient facts;

• the tribunal did not give adequate reasons.

20. It was also common ground that the threshold for appealing against a case management decision is high. As Chadwick LJ observed in Royal & Sun Alliance Insurance plc v T & N Ltd [2002] EWCA Civ 1964 (at [38]):

… this Court should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.

21. In the same case Arden LJ (as she then was) explained the thinking behind that approach (at [47]):

The principle that an appellate court should only interfere in matters of case management where a judge is plainly wrong is well-established and has been emphasised on many occasions since the introduction of the CPR. Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process. Moreover, the judge dealing with case management is often better equipped to deal with case management issues.

22. More recently, in another case management context – whether to make a debarring order against a party in FTT proceedings – Lord Neuberger held in BPP Holdings Ltd v Revenue and Customs Commissioners [2017] UKSC 55; [2017] 1 WLR 2945 as follows (emphasis added):

the issue whether to make a debarring order on certain facts is very much one for the tribunal making that decision, and an appellate judge should only interfere where the decision is not merely different from that which the appellate judge would have made, but is a decision which the appellate judge considers cannot be justified…In other words, before they can interfere, appellate judges must not merely disagree with the decision: they must consider that is unjustifiable.

The oral permission hearing of this application for permission to appeal

23. I held a rolled-up oral hearing of the Information Commissioner’s application for permission to appeal on 5 June 2025 at Field House in London. This was by way of a conventional face-to-face hearing. The Information Commissioner was represented by Mr Eric Metcalfe of counsel. The Secretary of State was represented by Mr Christopher Knight of counsel. I am indebted to both counsel for their careful written and oral submissions. As an effective bystander to this aspect of the litigation, the Second Respondent (Access Social Care) understandably neither attended nor was represented at the oral hearing.

The Information Commissioner’s two grounds of appeal