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

The Applicant’s personal statement refers to her suffering from periods of low mood and depression throughout her life, this includes in relation to events wholly unrelated to the Authority’s investigation or these proceedings, such as the COVID-19 lockdown [][HB/21/287]. See for example [5]: “Throughout my life I have struggled at times with depression and anxiety” and [9]: “COVID and the lockdowns were a dark time for me”. The Tribunal accepts this evidence that she has previously suffered and continues to suffer from these conditions or illnesses.

Whilst the Applicant has said that she is not eligible for an NHS referral to a psychiatrist, there is no explanation for this in the GP correspondence, or anywhere else. The Applicant has also stated that she cannot afford a private psychiatric assessment, but she has not provided copies of the quotes that she has apparently received for the psychiatric services, nor has she adduced any evidence of her financial situation to explain why those services are unaffordable. The Applicant requested [HB/45/407], and was granted [HB/16/270], a further opportunity to adduce evidence to the Tribunal regarding her inability to obtain a private psychiatric assessment, however, has not adduced any such evidence. The Applicant has had over 9 months since first raising the ground either to provide expert or medical evidence in support of her mental illness and the impact of publication or evidence as to why she cannot obtain this.

In relation to her ability to fund a psychiatric assessment, it is noted that the Second GP Letter says that the Applicant has “been accessing therapy sessions privately” (presumably at her own expense), but does not explain why she might be unable (for unspecified financial reasons) to obtain a private psychiatric assessment [HB/23/301].

In the circumstances, the Applicant’s financial situation does not reasonably justify the lack of medical or expert evidence (such as from a psychiatrist or clinical psychologist) in support of the Privacy Applications (and the Tribunal is not satisfied that her financial circumstances reverse the presumption in favour of publication). As set out above, while the lack of supporting evidence from an expert is not determinative of the Privacy Applications it reduces the cogency of the evidence provided on this ground.

The Tribunal accepts that the Applicant has given some evidence of the effect upon her mental health of publication:

“17.

This process has crushed my spirit and aggravated my depression to the point where I have had thoughts of suicide and felt so despondent that I felt I could not cope with living with all this hanging over me. These thoughts recently reoccurred shortly before the Decision Notice was issued, and it was only with the assistance and intervention by my Counsellor [] and my doctor in increasing the dosage of my anti-depressant medication that I was able to bring myself back from the brink of maybe ending my life.

18.

My work has been a source of pride, and it has really helped me to try and focus on more positive things. To be labelled as someone who lacks integrity pains me immensely and causes me to question my existence and purpose in life. The thought of the world being told by the FCA in a Decision Notice that I am not to be trusted, and that I am thoroughly incompetent, before I have had the chance to try and clear my name in the Upper Tribunal sends me into a spiral of anxiety and despair. I have felt like an after-thought for several years while the FCA did its investigations and then, without ever mentioning it beforehand, the FCA blindsided me at the annotated warning notice phase of its investigation accusing me of lacking integrity.

19.

The Decision Notice subsequently reduced the level of criticism I face, but it is still devastating to me to have the threat of the Notice being published to the world.

20.

The FCA has suggested I should see a psychiatrist and obtain a medical diagnosis of some sort if I am to ask for the non-publication of the notice. It is not that easy; I cannot afford to do that privately and the process in the NHS is lengthy. I can confirm that whatever diagnosis I may or may not have, that the dread I feel about the notion of public criticism on matters I know to be incorrect, before I have the chance to demonstrate my innocence, is real and consuming me. It is an overwhelming sense of despair that I cannot be sure that I will be able to manage if the Decision Notices are published.

…

23.While I do not plan to do anything detrimental, I am unable to control that. I was close to the edge last November which was due to the ongoing extensions and deferral of the final decision. I have many more months of anxiety and stress to face during the court and trial process, which I hope and believe will finally enable me to clear my name.

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.”

The question is what weight to give this evidence in the absence of it being adopted in oral evidence on oath and tested in cross examination.

The Tribunal repeats its sympathy towards the Applicant. However, it is not satisfied that this is cogent evidence relating to psychological harm flowing from publication. The Applicant’s statement and evidence primarily refers to the impact upon her of the past investigation by the Authority and existing reference proceedings rather than that any additional impact of publication. To the extent the evidence directly relates to publication ([18] and [24]), it is purely the Applicant’s belief and is not accompanied by any expert evidence in support, despite the Applicant being given more than reasonable opportunity to serve this and there not being a reasonable explanation for its absence.

While the Tribunal accepts that this is the Applicant’s genuine belief, it is not satisfied it is cogent evidence and concludes that it does not establish a significant likelihood of harm caused by publication of the relevant information. In so far as the Authority’s Decision Notice and the Applicant’s belief that publication would cause her harm or that the allegations are unfair and causing her stress, depression and anxiety, the Tribunal notes that the Applicant has received professional and personal support for several years and has continued access to this. The level of anxiety and depression has been previously and properly managed for several years.

Further, the non-publication of the Decision Notices without more would not of themselves provide the Applicant with total relief or complete reassurance that the allegations against her would not be published to the world. Even if these Privacy Applications were granted, she would further need to persuade the Tribunal that the reference proceedings as now joined with Mr Fenech’s, including the substantive hearing of the references, should be held in private pursuant to Rule 37 or subject to any other anonymity or non-disclosure orders under Rule 14. The practical consequences of how the hearing of joined references could be managed where one party benefited from anonymity and another did not do not need to be considered given this decision.

The fundamental remedy that the Tribunal can grant to the Applicant for the anxiety caused by the allegations made by the Authority contained in the Decision Notice is to give the Applicant the opportunity to challenge all of the allegations in the Decision Notice within a fair hearing of her reference.

The Tribunal is not satisfied that this ground is made out. When the Decision Notice is published it will also make clear that the Applicant disputes the matters contained within it and it will contain the representations she made to the Authority denying the allegations. The publication of the reference on the register will also make it apparent that the allegations are challenged or disputed.