[2025] UKUT 319 (AAC)

The ICO brings his appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”). Section 12 of TCEA 2007 requires the Upper Tribunal to identify whether the making of the decision by the First-tier Tribunal in question concerned the making of an error on a point of law (section 12(1)). An error of law must be material for its setting aside to be warranted: see [9] to [10] of the Court of Appeal’s decision in R (Iran) v SSHD [2005] EWCA Civ 982, which sets out a list of examples of the errors of law commonly encountered and explains that they incorporate a requirement of being “material”.

The Upper Tribunal must exercise judicial restraint when examining the reasons given for a First-tier Tribunal’s decision. The relevant principles were summarised at [64] to [65] of the decision of the three-judge panel of the Upper Tribunal in Information Commissioner v Experian Limited[2024] UKUT 105 (AAC):

“64.

As is well-known, the authorities counsel judicial “restraint” when the reasons that a tribunal gives for its decision are being examined. In R (Jones) v FTT (Social Entitlement Chamber) [2013] UKSC 19 at [25] Lord Hope observed that the appellate court should not assume too readily that the tribunal below misdirected itself just because it had not fully set out every step in its reasoning. Similarly, “the concern of the court ought to be substance not semantics”: per Sir James Munby P in Re F (Children) at [23]. Lord Hope said this of an industrial tribunal’s reasoning in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at [59]:

“ …It has also been recognised that a generous interpretation ought to be given to a tribunal’s reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.”

65.

The reasons of the tribunal below must be considered as a whole. Furthermore, the appellate court should not limit itself to what is explicitly shown on the face of the decision; it should also have regard to that which is implicit in the decision. R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790 (per Lord Lane CJ at page 794) was cited by Floyd LJ in UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095 at [27] as explaining that the issues which a tribunal decides and the basis on which the tribunal reaches its decision may be set out directly or by inference.”