Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Permission to appeal against the decision of the First-tier Tribunal (made on 21 October 2010 under reference LGS/2010/0513) is given.

As the decision involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

Reasons for Decision

A.          introduction

1.           This is my decision following an oral reconsideration of Mr Fahn’ application for permission to appeal against the decision of the First-tier Tribunal, Upper Tribunal Judge Ward having refused permission on the papers on 25 March 2011. The hearing took place at Harp House in London on 18 August 2011. Mr Fahn attended and was represented by Ms Estelle Dehon of counsel. The Standards Committee was represented by Mr Mark Woolsey of counsel. I am grateful to them both for their submissions. They agreed that, if I were to grant permission, their submissions could stand as on the appeal.

B.          the decision of the standards committee

2.           The Standards Committee considered a number of complaints against Mr Fahn made by Paul Howard of Denial Promotions on behalf of himself and six others. The Committee found that Mr Fahn had breached the Code of Conduct in these three respects: (i) he had failed to treat two named persons with respect; (ii) he had bullied those persons; and (iii) he had brought the Council into disrepute. It imposed a sanction of two months suspension from 28 May 2010. In doing so, it said that ‘the finding of bullying … made the matter more serious.’

3.           The powers of the Committee are contained in regulation 19 of the Standards Committee (England) Regulations 2008 (SI No 1085):

19 Findings of standards committees

(1) Following a hearing held under regulation 18, a standards committee shall make one of the following findings-

(a) that the member who was the subject of the hearing had not failed to comply with the code of conduct of any authority concerned;

(b) that the member who was the subject of the hearing had failed to comply with the code of conduct of an authority concerned but that no action needs to be taken in respect of the matters which were considered at the hearing; or

(c) that the member who was the subject of the hearing had failed to comply with the code of conduct of an authority concerned and that a sanction under paragraph (2) or (3) should be imposed.

C.          the law that the First-tier Tribunal had to apply

4.           Mr Fahn applied for permission to appeal to the First-tier Tribunal on 28 June 2010. This is governed by regulation 21:

21 Appeal to the First-tier Tribunal

(1) Where a standards committee makes a finding under regulation 19(1)(b) or (c), the member who is the subject of that finding may …-

(a) seek permission to appeal to the First-tier Tribunal; and, if appropriate,

(b) apply to the First-tier Tribunal for the suspension of any sanction imposed under regulation 19(3)(b) to (k) until such time as any appeal is determined.

…

(4) In deciding whether to give permission to appeal the First-tier Tribunal shall have regard to whether, in its opinion, there is a reasonable prospect of the appeal being successful (either in whole or in part).

(5) Permission to appeal or to suspend a sanction may be given in relation to the whole or any specified part of the finding or sanction.

5.           The application was put before Judge Laverick, who gave permission on 26 July 2011. Along with the grant of permission, the judge gave a series of initial directions. Two are relevant to this appeal. The judge directed the Standards Committee to provide a response to the appeal. Then he directed:

4. The response must include a statement as to whether the Standards Committee seeks to contest the Appellant’s case and if so on what grounds. The Standards Committee is required by the Tribunal Rules to send a copy of any response directly to the Appellant at the same time it provides the response to the Tribunal.

5. The Standards Committee is also asked to provide the Tribunal with copies of all relevant documents including reports and exhibits (if not already supplied) considered at the original hearing and if available, any relevant minutes.

6.           The judge gave permission on limited grounds. Those grounds are discernible from his grant of permission, but appear more clearly in his subsequent directions on 20 September 2010. They are:

(a) whether Mr Fahn’s actions towards the two people constituted bullying, the issue essentially being the interpretation of the word ‘bullying’ in the Code of Conduct; and

(b) whether at the time of the actions giving rise to such a finding, he was acting in his official capacity.

It is clear both from the wording of those grounds and from the judge’s detailed directions on how the tribunal should proceed that permission was limited solely to the issue of bullying.

7.           The First-tier Tribunal decided the appeal on the papers. It found that Mr Fahn’s conduct did not amount to bullying, but that he had been acting in his official capacity at the time of the incidents. It remarked that permission had not been given in respect of the sanction, but considered that the two months suspension remained proportionate.

8.           Section 78A of the Local Government Act 2000 imposes a duty on the First-tier Tribunal in respect of an appeal:

78A Decisions of First-tier Tribunal

…

(2) Where the First-tier Tribunal adjudicates on any matter under this Act, it must decide whether or not any person to which that matter relates has failed to comply with the code of conduct of the relevant authority concerned.

Consistently with that duty, regulation 25 deals with the outcome of an appeal:

25 Outcome of appeals

(1) The First-tier Tribunal must uphold or reject the finding or, where permission to appeal was granted as to only part of the finding, that part of the finding, to which the appeal relates, or may allow the appeal as regards a specified part of the finding.

(2) Where the First-tier Tribunal rejects the finding, the decision of the standards committee (including any sanction imposed) shall cease to have effect from the date of the rejection.

(3) Where the First-tier Tribunal upholds the finding of a standards committee made under regulation 19(1)(b), it may confirm the decision of that committee to impose no sanction or it may impose any sanction which was available to the standards committee.

(4) Where the First-tier Tribunal upholds the finding, or part of a finding, of a standards committee made under regulation 19(1)(c), it may confirm any sanction imposed by that committee, or vary it by substituting any other sanction which was available to the standards committee.

(5) Subject to paragraph (6), any sanction imposed under this regulation shall take effect immediately after its imposition.

(6) The First-tier Tribunal may direct that any sanction imposed under this regulation shall take effect on such date, within the period of six months after its imposition, as the First-tier Tribunal may specify.

This regulation reinforces section 78A(2) by making clear that the tribunal must decide afresh the facts and the nature of any sanction that is appropriate.

D.          the law that the Upper Tribunal has to apply

9.           There are two rights of appeal to the Upper Tribunal. An appeal lies on ‘any point of law arising from a decision’ under section 11(1) of the Tribunals, Courts and Enforcement Act 2007. And an appeal lies on any other ground under section 78B(4) and (5) of the Local Government Act 2000. There is a discretion to give permission to appeal if there is a realistic prospect that the decision was erroneous in law or if there is some other good reason to do so (Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538).

10.        Judge Laverick gave detailed reasons for refusing permission to appeal. I am not reviewing those reasons: CIS 4772/00 at [2]-[11]. Nor may they be used to show that a point of law arises from the decision: Albion Water Ltd v Dŵr Cymru Cyf [2009] 2 All ER 279 at [67].

E.           analysis

11.        I have given permission to appeal on the following grounds.

Document not before the First-tier Tribunal

12.        I was shown a printout of a MSN conversation involving Mr Fahn on 9 February 2008. It was before the Standards Committee when it made its decision, but it appears not to have been put to the First-tier Tribunal.

13.        Judge Ward remarked that it was Mr Fahn’s responsibility to ensure that all relevant evidence was before the tribunal. As a general proposition, that is undoubtedly correct. However, Judge Ward did not have Judge Laverick’s initial directions before him. He could not, therefore, have known of the contrast been direction 4 and direction 5. The Committee’s response had to be copied to Mr Fahn, but the documents had to be sent only to the tribunal. As the hearing was conducted on the papers alone, Mr Fahn could not have known that all the relevant documents were not before the tribunal. In those circumstances, there was a failure to disclose to the First-tier Tribunal, which is analogous to a breach of natural justice: Al-Medhawi v Secretary of State for the Home Department [1990] 1 AC 876. The panel members could not have been aware of this problem.

14.        This error would not alone have secured either permission to appeal or a rehearing. Ms Dehon argued that it was significant for two reasons. First, it showed that the tribunal had made a mistake as to the date of the bullying. Second, it showed the nature of the relationship between Mr Fahn and those involved in the allegations around that date. I am far from persuaded that either of those points are likely to have affected the ultimate outcome on the official capacity issue. However, that is now a matter for the rehearing.

Official capacity

15.        The issue is whether Mr Fahn was within the scope of paragraph 2 of the Code of Conduct:

… you must comply with this Code whenever you-

(a) conduct the business of your authority (which, in this Code, includes the business of the office to which you are elected or appointed); or

(b) act, claim to act or give the impression that you are acting as a representative of your authority.

16.        The tribunal considered and distinguished Livingstone v The Adjudication Panel for England [2006] EWHC 2533 (Admin). The terms of the Code that applied in that case are different from those I have set out above. The authoritative decision on this issue is now that of Judge Ward in MC v Standards Committee of the London Borough of Richmond [2011] UKUT 232 (AAC). That decision was not available to the First-tier Tribunal when it decided this case and the panel cannot be criticised for not following it. However, it applies (like all judicial decisions) retrospectively. I accept Ms Dehon’s argument that the tribunal misdirected itself by failing to distinguish the questions whether Mr Fahn was acting as a councillor and whether he was acting as a representative of the authority. The tribunal did, in paragraph 24 of its reasons, express its conclusion in terms that Mr Fahn ‘acted or gave the impression that he was acting as a representative of the Town Council’, but the tribunal’s analysis of the evidence does not show that it distinguished between paragraphs 2(a) and (b) of the Code.

17.        There is also another aspect of official capacity that concerns me. I mentioned it at the hearing, but it did not form part of Ms Dehon’s submissions. The way in which limited permission was given left open this possibility. The tribunal might find that Mr Fahn had not been acting in an official capacity at the time of the ‘bullying’ incidents, while the Committee’s findings that he was acting in an official capacity in respect of the other breaches would remain. I have not considered all the evidence on this, but it is possible that the circumstances of all the incidents were indistinguishable. That would leave Mr Fahn in an unfortunate position, with contradictory findings and perhaps not knowing for the future when he was and was not within the Code. The tribunal might have considered that, in those circumstances, it was appropriate to extend the grant of permission.

Sanction

18.        Mr Fahn did not challenge the suspension in his application for permission to appeal to the First-tier Tribunal, but that simply reflected the fact that he predicted (correctly) that he would have served his suspension before the appeal was heard. It did not mean that he had no interest in it.

19.        If the tribunal was right that the issue of the sanction was not before it, it was left in an invidious position. It had decided that the bullying allegation had not been established and the Committee had considered that the allegation made matters more serious. The suspension had been served and history could not be rewritten, but it was possible to vindicate Mr Fahn by reducing the sanction that would be recorded against him. If the tribunal was right, the proper course in those circumstances was to extend the permission to appeal to include the sanction.

20.        I consider that the tribunal was wrong and the sanction issue was before it. It was not part of the direction given by Judge Laverick, but it was implicitly within its jurisdiction under regulation 25. Paragraphs (3) and (4) expressly authorise a tribunal to vary the Committee’s decision on sanction if it upholds its findings. It confers that power on the tribunal independently of the terms of the grant of permission. It would be anomalous if the tribunal were not allowed to vary a sanction if it did not uphold the Committee’s finding. The regulation was probably drafted on the assumption that the sanction would naturally fall with the finding. That does not take account of cases like this, in which a single sanction was imposed for a number of findings. The tribunal should have considered whether to vary the sanction.

21.        Mr Woolsey pointed out that the tribunal had given its views on sanction, even if it believed that the issue was not before it. I have considered whether they are sufficient to justify leaving the sanction unchanged, but they are not. Given that the Committee specifically singled out the bullying issue as an aggravating factor, it is surprising that the tribunal should consider no reduction in sanction was appropriate and its remarks are not sufficient to justify that conclusion. The tribunal did say that the other breaches were significant. It is possible that the panel considered that two months was lenient for the breaches found by the Committee and was appropriate even without the finding on bullying. If that is what it meant, it did not say so.

22.        The tribunal may have found it difficult to remove the bullying element from the sanction when the other breaches were not before it, especially given the form in which the Committee’s report was presented. This serves to underline the difficulty in giving only limited permission in the circumstances of this case.

F.           why i have set aside the First-tier Tribunal’s decision

23.        One analysis of the First-tier Tribunal’s decision is this. Despite the errors I have identified, Mr Fahn won. He was given permission in respect of bullying and the tribunal accepted that what he did was not bullying. He lost on the official capacity issue, but the capacity in which he did not bully is irrelevant. The sanction was served and passed. He had vindication and moral victory in the tribunal overturning the Committee’s finding. On that analysis, the errors that the tribunal made were immaterial to the outcome. I should either refuse permission to appeal or acknowledge the tribunal’s error without setting aside its decision, as authorised by section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

24.        Ms Dehon argued that the outcome was material to Mr Fahn as it left in place the official capacity finding, which had led to criticism both in the Council and in the press. I accept that argument and have taken into account this dimension, which is not generally present in appeals to this Chamber. That is why I have set the tribunal’s decision aside for the errors it made.

25.        Mr Fahn runs the risk that the First-tier Tribunal may now decide both the bullying issue and the official capacity issue against him, leaving him worse off than if he had not brought this appeal. It could even increase his sanction, leaving him worse off than if he had not brought his appeal to the First-tier Tribunal. However, he is legally advised, is aware of the risk and is willing to take it.

G.          why i have directed a rehearing rather than decide the case myself

26.        In part, the outcome of this case requires an assessment of whether Mr Fahn was acting or appearing to act as a representative of his local authority. That will benefit from the experience and understanding of the panel members of the First-tier Tribunal. That is why I have directed a rehearing and not decided the case myself.

 

Signed on original on 18 August 2011

Edward Jacobs Upper Tribunal Judge