UT (Tax & Chancery) UT-2024-000010 - [2024] UKUT 00416 (TCC)

Mr Cherry submitted that in addition to the medical evidence provided by Dr S, the Applicant also entirely properly and permissibly relies upon the evidence of her counsellor, []. The letter dated 7 October 2023 (B/18) describes the scope of work the counsellor had done with the Applicant and confirms that the counsellor has known the Applicant since July 2021 as her counsellor and therapist. [The Applicant’s counsellor] states at [2] that:

“A large percentage of the work we have undertaken during those last two years, has been to do with teaching her [the Applicant] coping mechanisms, and giving her space to talk, so she is able to work through the emotions she is experiencing surrounding the case brought against her by the Financial Conduct Authority (FCA) and Regulatory Decisions Committee (RDC).”

He argued that this is cogent evidence that the Applicant sought independent professional intervention and assistance to assist her in coping with the Authority’s processes she was subjected to. Paragraphs 5 and 6 of this letter go on to describe the counsellor’s “suspicion” that the Applicant is highly likely to be autistic. It stresses that such a formal diagnosis was not made by her and would need to be made by a psychiatrist. The Applicant does however rely upon the results of the “NovoPsych” autism spectrum disorder (“ASD”) screening product used by her counsellor and described at [6] of the letter, as evidence that in addition to her depression, she returned a score which is highly likely to indicate that she is also autistic. In this regard [the Applicant’s counsellor] refers to the statement that:

“The scale for the Autism Spectrum Quotient screening runs from 0 – 50 and the point above which someone is considered likely to have ASD is 29. Heather’s score came up as 40 therefore, this indicates that she is highly likely to have Autism Spectrum Disorder.”

It is accepted that this is not evidence from a medically qualified psychiatrist, but it remains evidence of the makeup of the Applicant and her mental health. The continued passage in this letter [para 8] evidences that the Applicant has difficulty expressing her emotions:

“If I ask Heather how she ‘feels’ she will often respond with what she ‘thinks’. It is usual for us to explore together how she feels during our sessions because she does not know how to vocalise it. In fact, Heather has had difficulty on multiple occasions being able to voice what emotions she feels other than “I’ve been crying loads”.

Mr Cherry contended that this was evidence of the likelihood of the Applicant having ASD. In the same section of the letter [para 10], the counsellor observes of the Applicant that:

“Heather has absolutely no self-esteem and has regularly commented on the belief that “people would be better off without her” or “people wouldn’t notice if she wasn’t there”; she feels like she is constantly judged negatively and believes that most people in the world would think she was “weird”.”

He argues that this further evidences and echoes a persistent theme of poor self-image and reflects the feelings of suicide articulated by the Applicant herself in her Personal Statement.

Mr Cherry also relies on a second letter from the Applicant’s counsellor (B/20) which provides further evidence by way of implication, of the likely impact of publication of the Decision Notices on the Applicant’s mental health. At [5] the counsellor confirms that:

“My experience, whilst working with Heather, is that the more the case has dragged on, the worse her mental health has got. Once the Financial Conduct Authority brought their part of their proceedings to an end, I was able to assist Heather in starting to increase her mental wellbeing. However, once the Regulatory Decisions Committee took off with their part of the proceedings, Heather’s mental wellbeing decreased further still and it was all I have been able to do, to stop her from having a complete nervous breakdown.”

At [6] of this letter the counsellor confirms the impact of the highly likely fact that the Applicant is also autistic, and the impact of relevant traits because of that fact. Mr Cherry argued that this clearly demonstrates a disposition, beyond the ordinary, for the Applicant to suffer significant mental and related physical health impacts resulting from her thinking about the matters currently before the UT:

“Heather’s genetic make-up being that of someone on the autistic spectrum, means that she gets a hyperfocus, where she can focus on nothing but the proceedings, going over and over everything increasing her stress levels and leaving her unable to sleep for weeks at a time.”

He submitted that the letter provides a reasoned, rational, professional opinion that the publication of the Decision Notices would have a serious negative impact on the Applicant. At [9] and [10]:

“From the time I have spent with Heather, it is my opinion that her conviction would be extreme concern that people reading a publication of the Decision Notice or any details of the case taken against her, would be led to the belief that she had not followed due process. Heather is so close to a breakdown, I truly believe that it would not take much more to tip her over the edge and without any exaggeration, I do not feel confident that I would be able to keep her safe should these details be published before she has the chance to clear her name.”

Mr Cherry contended that the above passage occurs following a professional counsellor / therapist relationship of around 3 years prior to this hearing, and during which the principal theme, cause and aggravator to the Applicant’s depression and ASD characteristics has been and remains the Authority’s action and Decision Notices.

Mr Chery concluded by submitting that in combination, the medical evidence from both Dr [S] and [the Applicant’s counsellor] is valid, cogent and corroborative of the very clear unequivocal statements of the impact publication of the Decision Notices would have on the Applicant as set out in her own evidence. It is a clear and reasonable inference that the entirety of the Authority investigation process was the initial cause of the Applicant requiring medication (in 2017) and then at various ‘pinch points’ of the investigation and its statutory notice process components, significantly increased dosages and low mood, culminating in suicidal thoughts and imminent mental breakdown regarding the production and/or publication of the Decision Notices. This has culminated in the current phase of matters, with the Applicant summarising the position herself in her Personal Statement (B/21) at [24]:

“I am very worried that even with the marvellous support I have, from my legal team, [counsellor], my family, and friends, which have enabled me to survive thus far, being publicly denounced, before I get that chance, as lacking integrity and being incompetent and not fit to be authorised may be just too much to bear.”

Mr Pritchard made submissions opposing the application, many of which I have adopted in the discussion section below.