Marshall v The Information Commissioner [2025] UKFTT 407 (GRC) (07 April 2025)

Introduction

1. This is an appeal against the Commissioner's decision notice IC-258796-G1Q0 of 13 December 2023 which held, on the balance of probabilities, that the Local Government and Social Care Ombudsman (the Ombudsman) held no further recorded information within the scope of the request.

2. The tribunal originally met to consider the appeal on 5 December 2024 but considered that it needed further information and evidence from the Ombudsman to determine the issues before it. That information was provided and the parties given the opportunity to make further submissions.

Background to the appeal

3. The background to this appeal is a refusal by the Ombudsman to investigate a complaint made in May 2021 by Mr Marshall about what he asserts to be negligence on the part of Westminster City Council (the Council), involving the use of inaccurate Ordnance Survey (OS) mapping to assign geographical coordinates to Mr Marshall's property.

4. Mr Marshall states that the Council was the cause of that erroneous OS mapping because several years earlier it had provided OS with inaccurate and/or incomplete information concerning the creation of a number of new addresses. The erroneous geographical coordinates were later uploaded to the GPS/SatNav system.

5. When Mr Marshall's father suffered a cardiac arrest and was in urgent need of medical assistance there was a serious delay in London Ambulance Service reaching him because the crews could not locate his address. Mr Marshall's father died three days later, which Mr Marshall says is as a direct result of that unnecessary delay.

6. Mr Marshall states that he gave notice to the Ombudsman that he intended to seek judicial review of the Ombudsman's decision not to investigate his complaint about the Council and that they instructed external lawyers, Bevan Brittan. He says that Bevan Brittan's response to his proposed Judicial Review application contained a number of ambiguous and misleading statements. Mr Marshall therefore wrote to the Ombudsman to obtain further information in relation to, inter alia, its decision-making process in general and in relation to his complaint of May 2021. Mr Marshall refers to this correspondence as a pre-action request for disclosure.

7. The specific request for information in issue in this appeal was made because the Ombudsman refused to comply with the pre-action request for disclosure made by Mr Marshall. This request is Mr Marshall's attempt to find out the basis on which that decision was made.

Requests, Decision Notice and appeal

The Request

8. This appeal concerns a request made to the Ombudsman on 3 July 2024:

"Please advise the legal basis upon which Andrew Hobley has refused to comply with a request for disclosure dated 1 June 2023 (further clarified on 5 June 2023) made pursuant to the provisions of the PreAction Conduct Protocol Practice Directions."

The response

9. In its response on 19 July 2023 the Ombudsman stated that it did not hold the requested information. This was upheld on internal review. The internal review was conducted by Andrew Hobley, the Assistant Ombudsman, who stated:

"Although you called your letters of 1 June 2023 "... a pre action letter for disclosure ..." as I told you in my letter of 1 June, it did not say under what Act of Parliament or which pre-action protocol the request was made and so we were unable to respond. Your letter of 5 June cast no further light on this.

I do not consider I need a specific legal basis to reply to your correspondence, other than the delegation of his powers the Ombudsman has given to me, under paragraph 13, Schedule 4 of the 1944 Local Government Act. This will include dealing with general correspondence. So Ms Barrow was right to say we did not hold this information."

The Decision Notice

10. In a decision notice dated 13 December 2023 the Commissioner decided that the Ombudsman did not hold any further information relevant to the request.

11. The Commissioner stated that he had reviewed Mr Marshall's request and had put the following query to the Ombudsman:

"Please clarify whether there is a specific note on file referring to the reason for not considering the complainant's complaint/appeal regarding the LGSCO's original refusal to investigate their complaint against the Council regarding Ordnance Survey mapping and therefore not responding to their letters of 1 and 5 June 2023."

12. The Commissioner noted the Ombudsman's response to the Commissioner which was:

"There are three documents explaining why we will not investigate their complaint - the decision statement, the review decision and the entry in Notes and Analysis, all of which [the complainant] has seen. Our subsequent correspondence with [the complainant] has added nothing to those reasons. Our reasons for any other decisions we have made are in our letters to [the complainant].

13. The Commissioner was satisfied that Mr Marshall had seen the documents referred to by the Ombudsman in previous correspondence. The Commissioner accepted that the Ombudsman held no further recorded information within the scope of the request.

Notice of Appeal

14. The Grounds of Appeal are, in essence, that the Decision Notice is wrong because it relies, in paragraph 7, on the Ombudsman's 'spurious and misleading' excuse for refusing to disclose evidence pursuant to the Civil Procedure Rules and Practice Directions.

15. The tribunal notes that paragraph 7 of the Decision Notice states as follows:

"The LGSCO provided an internal review response on 5 October 2023.

The internal review stated that, although the complainant referred to a 'pre-action' letter it did not state under what Act of Parliament or which pre-action protocol this was made, so it was unable to respond. It also stated that it did not require a legal basis to deal with correspondence other than that provided under the 1944 Local Government Act."

16. Mr Marshall set out the outcome he sought from the appeal as follows:

"I seek the dismissal/revocation of the ICO Decision Notice and that ICO to use its powers to require LGSCO to comply with my Pre Action Request for Disclosure.

LGSCO made a false statement in purported support of its decision not to investigate a complaint brought to it.

I am seeking to ascertain the reason for that statement by way of FOIA 2000 and/or CPR 23 CPR PD 23A"

The Commissioner's response

17. The main points of the Commissioner's response are as follows.

17.1. Paragraph 7 of the Decision Notice does not form part of the reasons for the decision.

17.2. In the light of the explanation provided by the Ombudsman (set out above in the summary of the Decision Notice) the Commissioner was satisfied that the Ombudsman held no further information. He is entitled to accept the responses of the public authority at face value unless there is some reason why he should not do so.

17.3. The outcomes specified by Mr Marshall are outside the remit of the Commissioner and the tribunal.

Legal framework

18. Section 1(1) FOIA provides:

"Any person making a request for information to a public authority is entitled -

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case to have that information communicated to him."

19. The scope of a request is determined objectively, in the light of all the surrounding circumstances.

20. The question of whether information was held at the time of the request is determined on the balance of probabilities.

The role of the tribunal

21. The tribunal's remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner's decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

Issues

22. The issues for the tribunal to determine are:

22.1. On the balance of probabilities did the Ombudsman hold any information within the scope of the request?

Evidence

23. The tribunal read an open bundle. We also read and took account of:

23.1. A witness statement from Andrew Hobley, Assistant Ombudsman, dated 13 December 2024.

23.2. 6 additional pages of correspondence dated 4 and 20 September and 13 December 2023 submitted by Mr Marshall.

23.3. A document entitled 'Appellant's comments on the statement by Andrew Hobley' dated 18 December 2024

Evidence from Andrew Hobley

24. In his witness statement Mr Hobley addressed a number of questions raised by the tribunal. In essence he explained why he had reached the view that he was unable to respond to the pre-action request for disclosure. He confirmed that he did not seek advice from the lawyers used by the Ombudsman, that he did not make any written record or note of the reasons for not responding, that he did not communicate in writing with any colleagues about his decision. He confirmed that no file note existed and that the Ombudsman had searched for a file note/written record of information of the reasons/legal basis for not complying in the file on Mr Marshall's complaint reference 21 003 042 on their data base. He explained that the separate files on Mr Marshall's original information requests have been destroyed. He stated that no other records are held elsewhere, including individual's email accounts, and that the Ombudsman has no hard copy files.

Mr Marshall's comments on the witness statement

25. Mr Marshall provided the following comments, which the tribunal has taken account of, in so far as they are relevant to the issues we have to determine:

"1 The appellant respectfully suggests Mr Hobley chose to block the appellant's email contact with Local Government and Social Care Ombudsman (LGSCO) solely because he wanted to avoid disclosure of information that would reveal the organisation's egregious failures. Because his email address was blocked the appellant was forced to create a new email account in order to raise a legitimate request for information.

2 Following receipt of LGSCO's unsatisfactory response to his request the appellant requested an Internal Review (IR) by way of LGSCO's appeal process. LGSCO failed to respond so the appellant raised a complaint with the Information Commissioner (ICO) which was immediately accepted because the 40 day period for providing a review response had already elapsed. In due course ICO required LGSCO to take action.

3 Mr Hobley in his capacity as Assistant Ombudsman handled ICOs request. However in view of his previous attitude towards the appellant and his handling of the original information request the appellant submitted he ought to recuse himself from adjudicating on an issue that (inter-alia) concerned his behaviour because there was an obvious conflict. ICO agreed with the appellant's point of view as regards conflict of interest. Mr Hobley chose not to recuse himself.

4 In respect of paragraph 25 of Mr Hobley's statement the appellant asserts Mr Hobley is fully aware the appellant gave notice of intention to seek Judicial Review (JR) and that LGSCO instructed external lawyers Bevan Brittan (Reference BB-M.FID4866560) to oppose the same. Accordingly paragraph 25 is patently false and is perhaps an attempt to mislead the Tribunal.

5 The appellant would respectfully draw the Tribunal's attention to the fact that Bevan Brittan's response to his proposed application for JR contained a number of ambiguous and misleading statements. The appellant therefore sought to obtain further information from LGSCO in relation to (inter-alia) its decision making process in general and his complaint of May 2021 in particular.

6 The appellant is astonished and appalled to read paragraph 22 of Mr Hobley's statement and would in view of the seriousness of LGSCO's actions respectfully urge the Tribunal to consider whether it be appropriate to require Mr Hobley or some other duly authorised person at LGSCO to fully explain why where legal requests for information under FOIA and a pre-action request for disclosure in accordance with the rules of court were still outstanding the case file (21 003 042) and the other documentation mentioned in paragraph 22 were allowed to be destroyed.

7 The appellant's letters of 1 and 5 June 2023 were provided to Mr Jonathan Lodwick of Bevan Brittan who advised that his firm was not instructed in relation to information request issues. However the appellant has no reason to believe the letters were not copied to Mr Hobley and/or LGSCO at the earliest opportunity. In any event on Sunday 2 July 2023 the appellant raised a further request for information and the said letters were attached. The email would have been received by LGSCO on Monday 3 July 2023.

8 The appellant rejects the content of paragraph 12 of his statement. The appellant can only conclude this is another attempt to cover-up the unending catalogue of LGSCO's incompetence. To which must now be added the extremely disturbing revelation by Mr Hobley at paragraph 22 of his statement. The appellant respectfully submits this is clear evidence of LGSCOs utter contempt for both the rules of court and legislation.

9 In conclusion the appellant would respectfully ask the Tribunal to bear in mind that his complaint to LGSCO related to negligence on the part of Westminster City Council (WCC). This involved the use of inaccurate Ordnance Survey (OS) mapping to assign geographical coordinates to the appellant's property. WCC was the cause of that erroneous OS mapping because several years earlier it had provided OS with inaccurate and/or incomplete information concerning the creation of a number of new addresses. The erroneous geographical coordinates were later uploaded to the GPS/SatNav system. When the appellant's father suffered a cardiac arrest and was in urgent need of medical assistance there was a serious delay in London Ambulance Service reaching him because the crews could not locate his address. The appellant's father died three days later as a direct result of that unnecessary delay. LGSCO either by design, incompetence or outright bias chose to completely overlook those facts and decided not to investigate WCC."

Discussion and conclusions

26. First, it is important to note that we are limited to considering whether the Commissioner was correct to decide that the Ombudsman did not hold information within the scope of the request.

27. We do not have the jurisdiction to:

a. Require the Ombudsman to comply with any pre-action request for disclosure in proposed judicial review proceedings.

b. Determine whether or not the Ombudsman was justified in not complying with any pre-action request for disclosure in judicial review proceedings.

c. Determine whether the Ombudsman made a false statement in support of its decision not to investigate a complaint.

d. Consider Mr Marshall's complaint that his case files should not have been destroyed or order the Ombudsman to explain why those files were destroyed.

28. We are therefore unable to make any ruling on those matters.

Did the Ombudsman hold any recorded information within the scope of the request?

29. FOIA gives a right to recorded information. Information that is simply held in the mind of an employee is not recorded information.

30. The request asks for 'the legal basis upon which Andrew Hobley has refused to comply with a request for disclosure dated 1 June 2023 (further clarified on 5 June 2023) made pursuant to the provisions of the PreAction Conduct Protocol Practice Directions'

31. If the Ombudsman holds any recorded information which sets out the legal basis upon which Mr Hobley refused to comply with the request, that would fall within the scope of the request. The tribunal considered that Mr. Hobley might have sought advice from colleagues or legal advice in relation to the legal basis for his decision, or that he might have recorded his decision making process in a file note. In those circumstances there might have been recorded information within the scope of the request.

32. We therefore ordered Mr. Hobley to provide a witness statement to explain the process by which he reached his view and to provide evidence on whether he sought or received any advice in writing or made any written record of his reasons or communicated in writing about the reasons for not responding.

33. Mr. Hobley's witness statement dated 13 December 2024 addresses those questions. He confirms there is no written record for his reasons for not complying with the requests for disclosure and confirms that he did not seek any advice or conduct any correspondence about those reasons. On this basis we conclude on the balance of probabilities, that the Ombudsman does not have any written record of the legal basis upon which Mr. Hobley refused to comply. As no written record was made, it is unclear what would be revealed by any searches, although Mr. Hobley has confirmed that searches were undertaken in any event.

34. On that basis we find, on the balance of probabilities, that the public authority holds no recorded information within the scope of the request.

35. For all those reasons the appeal is dismissed.

Signed Sophie Buckley Date: 7 April 2025

Judge of the First-tier Tribunal

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You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Marshall v The Information Commissioner [2025] UKFTT 407 (GRC) (07 April 2025) URL: https://www.bailii.org/uk/cases/UKFTT/GRC/2025/407.html Cite as: [2025] UKFTT 407 (GRC)

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