DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal.

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 21 February 2012, following a paper hearing on 09 February 2012, under file reference EA/2011/0101, in relation to the Appellant’s appeal against Decision Notice FS50312558, involves an error on a point of law. The First-tier Tribunal’s decision is accordingly set aside. The case is remitted to be reheard by a different First-tier Tribunal, subject to the Directions below.

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1)	Assuming any further application to have the Appellant’s appeal to the First-tier Tribunal struck out is unsuccessful, the re-hearing should be at an oral hearing; 

(2)	The new tribunal should be differently constituted from the First-tier Tribunal which made the decision dated 21 February 2012.

These directions may be supplemented by later case management directions issued by or on behalf of a Tribunal Judge in the General Regulatory Chamber (Information Rights) of the First-tier Tribunal. 

REASONS

The reason why this appeal to the Upper Tribunal succeeds
1.	This appeal succeeds because of a procedural error by the First-tier Tribunal. The case needs to go back to a different tribunal. The fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication of the likely outcome of the case when it goes back for re-hearing.

The background to this appeal
2.	In May 2009 the Appellant asked English Heritage, the public authority, for information about consultation which had taken place over the Cathedral Close in Norwich.  A year later she wrote to the Information Commissioner, complaining about the way that English Heritage had handled her request. It is fair to say that the Commissioner had some difficulty in getting clarification from the Appellant as to what precisely was the scope of her request.

3.	In March 2011 the Commissioner issued a decision notice (FS5031255). The Commissioner ruled that the public authority did not hold any further relevant information beyond that which had already been disclosed to the Appellant. The Appellant appealed to the First-tier Tribunal (FTT). It is again fair to say that her grounds of appeal were somewhat confused. Whilst she was clearly unhappy with the way that the public authority had handled her request, it was unclear precisely what aspect of the Commissioner’s decision notice was being challenged. What was clear, however, was that the Appellant wanted an oral hearing, as she put a cross in the relevant box on the notice of appeal form.

4.	On 1 June 2011 the Commissioner submitted a response, opposing the appeal and applying for it to be struck out as having no reasonable prospects of success. Following initial directions dated 29 July 2011, the FTT held a telephone case management conference on 19 August and then, following further directions, another telephone conference on 29 November 2011.

5.	On 14 December 2011 the FTT issued further case management directions, ruling that “the matter is to be considered on the papers without an oral hearing” (clause 1). That paper hearing took place on 9 February 2012. The FTT issued its decision with reasons on 21 February 2012, dismissing the Appellant’s appeal.

6.	The Appellant then applied for permission to appeal to the Upper Tribunal. She sent in seven handwritten pages setting out her grounds of appeal. These grounds included the following:
	
“Procedural irregularity: The Appellant was assured of an ORAL hearing she could attend. This has been pre-empted. The Appellant had further time, to such a hearing to obtain public law advice. This has been denied to her.”

7.	Given the allegation of a procedural impropriety, the FTT Judge concerned gave permission to appeal to the Upper Tribunal.

The proceedings before the Upper Tribunal
8.	The appeal was first considered by Judge Turnbull. He reviewed the papers and formed the provisional view that the FTT may have adopted the wrong approach in considering its role on an appeal under section 58 of the Freedom of Information Act (FOIA) 2000. He suggested that the FTT, rather than considering whether English Heritage actually held extra documents which had not previously been provided, may have confined itself simply to considering whether the Commissioner’s approach involved an error of law.

9.	The Commissioner submitted a response opposing the appeal, and explaining why he took the view that the FTT had asked itself the right questions and why its decision involved no error of law.

10.	English Heritage also submitted a response, indicating that its position remained that the Appellant had been provided with all relevant documents. The public authority included a copy of a long e-mail to the Appellant, dated 13 October 2011, setting out the history of the matter as they saw it. This e-mail was described as one that “concludes our correspondence”. It added that should the correspondence be continued, then English Heritage might need to consider invoking section 14 of FOIA and/or regulation 12(4)(b) of the Environmental Information Regulations 2004 (SI 2004/3391) on vexatious and/or manifestly unreasonable requests. It is fair to say that e-mail expressed a degree of exasperation.

11.	The case was then transferred from Judge Turnbull to me. Having considered the respondents’ submissions, I took the view that the FTT had in fact asked itself the right question. I agreed with Judge Turnbull that there were certain aspects of the way in which the decision had been expressed that might lead to the criticism that the Upper Tribunal Judge had raised in his initial directions. However, reading the decision as a whole, I concluded that the potential error identified by Judge Turnbull had not in fact been made out.

12.	There was, however, a procedural problem that I identified. In further directions, I made the following observations:

‘The procedural history
4. The Information Commissioner applied for a strike out of the Appellant’s appeal in its response (on 01 June 2011), and on 29 July 2011 the FTT Judge directed a telephone case management hearing (CMH). On 03 August 2011 the Commissioner objected to the case proceeding in the absence of a ruling on the strike out application. On 10 August 2011 the Judge confirmed that he would deal with the strike out application at the directions hearing.  The Commissioner indicated that he would not be represented at the hearing, and the hearing proceeded by telephone on 19 August 2011 in his absence. This led to the FTT’s directions of 02 September 2011, in which the Judge refused to strike out the appeal but indicated that the application could be revisited at the oral hearing. The Judge also gave the parties until 30 September to agree directions for the oral hearing.

5. On 13 September 2011 the Commissioner objected to the case proceeding to oral hearing in the absence of a formal decision on the strike out application, and expressed the view that any further case management directions were a matter for the FTT and the Appellant (but did suggest brief directions). On 04 October 2011 the Judge directed the parties to provide agreed directions within 5 days or explain why they had been unable to agree. On 08 October 2011 the Appellant e-mailed, further to the Commissioner’s indication that he would not take part in any oral hearing, complaining that she had understood that all parties would be required to attend the oral hearing.  

6. In the absence of any agreement between the parties as to case management directions, the Judge directed on 11 November 2011 that there should be a further telephone directions hearing. On 14 November 2011, despite expressing some dissatisfaction, the Commissioner agreed to take part in the directions hearing. That hearing was held on 29 November 2011, and subsequently the Commissioner submitted proposed directions on 05 December 2011, which provided that “The matter is to be considered on the papers without an oral hearing”.

7. On 09 December 2011 the Appellant submitted her own revised version of the proposed directions, which provided that “The matter is to be considered on the papers with thereafter, possibility of an oral hearing”. However, the Judge’s directions adopted the Commissioner’s provision that the appeal was to be heard without an oral hearing. While there are several subsequent emails from the Appellant to the FTT and the Commissioner, I cannot see any specific objection to the direction for the appeal to be determined on the papers.

Provisional analysis
8. Rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976) provides as follows (neither rule 32(2) or (3) is relevant to the present matter):

“Decision with or without a hearing 
32.—(1) Subject to paragraphs (2) and (3), the Tribunal must hold a hearing before making a decision which disposes of proceedings unless— 
(a) each party has consented to the matter being determined without a hearing; and 
(b) the Tribunal is satisfied that it can properly determine the issues without a hearing.”

9. The term “hearing” in this context means some form of oral hearing (see rule 1(3)) and so excludes a paper hearing.

10. Putting to one side the matters identified by Judge Turnbull in his initial directions, it seems to me plainly arguable there was a breach of rule 32 by the FTT in this case. While the Appellant did not expressly challenge the Judge’s directions of 14 December 2011 that the case was to be considered on the papers (and so might be argued to have given implied consent to the paper hearing), she had on more than one occasion expressed her wish for there to be an oral hearing of her appeal.  In her e-mail of 07 December 2011 she stated that she did “not yet commit to there being no hearing”. In those circumstances it is plainly arguable that the FTT had not done enough to establish that rule 32(1)(a) was satisfied.  

11. In addition, there is no evidence on file of the FTT having specifically considered whether it could properly determine the issues without a hearing, as required by rule 32(1)(b). In Dransfield v IC (GIA/1053/2011) I emphasised the need for the FTT to consider rule 32(1)(b) separately, and to take into account the overriding objective when doing so (at paragraph 2). In the present case it might have been necessary for the FTT to take into account, when considering whether it could proceed without an oral hearing under 32(1)(b), the fact that the Appellant’s communications were confused and often hard to follow and whether she might have been able to express herself more clearly in person.

Conclusion
12. I am therefore directing concurrent further submissions on this appeal from the parties, as directed below. My provisional view is that the FTT’s decision should be set aside for failure to comply adequately with rule 32. The parties are invited to make submissions on that point and that point alone. If the parties are agreed, I will then remit the matter to a different FTT for a fresh hearing. If the parties are not all agreed on that course of action, I will consider further what steps are appropriate in disposing of this appeal.’

13.	The public authority has responded by indicating that it has nothing to add to its previous submission. It is perhaps understandable that English Heritage has no wish to get involved in the procedural issues raised by the directions above. I note that the public authority was not even a respondent to the proceedings in the FTT. I suspect that this may have added to the Appellant’s sense of frustration.

14.	The Appellant’s written submission to the Upper Tribunal, by way of a reply to the responses of the Commissioner and the public authority, is not entirely easy to follow in parts. However, she states categorically that “the ORAL hearing [the FTT Judge] INSISTED via TWO CONFERENCE calls would NOT be prejudiced. ALSO that costs could be kept down by not having an oral hearing was noted by [the Appellant] SO LONG AS THIS WAS NOT INTERPRETED as a view that an oral hearing could be waived. [The FTT Judge] agreed no loss of right to an oral hearing.”

15.	The Information Commissioner disagrees with the analysis in my provisional observations and objects to the proposed course of action. The Commissioner’s representative makes two points.

16.	First, he argues that rule 32(1)(a) was in fact met. He contends that the Appellant had two months between the directions of 14 December 2011 and the date of the paper hearing to make her objections known. She did not do so and so the FTT was entitled to infer that she was content with a paper hearing.

17.	Second, the Commissioner acknowledges that there is no formal note recording the FTT’s consideration of rule 32(1)(b). However, given the procedures adopted, and the two case management conferences, the FTT must have properly satisfied itself that it could proceed without an oral hearing in accordance with rule 32(1)(b).

The Upper Tribunal’s analysis
The relevant legal principles 
18.	Rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 is set out in paragraph 12 above, at paragraph 8 of my earlier observations on the appeal. Rule 32(1) has also been considered in at least two earlier Upper Tribunal decisions in the information rights jurisdiction: IICUS v IC, DBIS and Ray [2011] UKUT 205 (AAC) and GIA/1053/2011 (Dransfield v IC, not to be confused with IC v Devon CC and Dransfield [2012] UKUT 440 (AAC) (GIA/3037/2011)).

19.	In IICUS v IC, DBIS and Ray I pointed out that (as in the present appeal) “the FTT’s decision also made no reference, explicitly or implicitly, to the test in rule 32(1).  It was not enough that the FTT was satisfied that it could properly determine the issues without a hearing; it had to hold a hearing unless ‘each party has consented to the matter being determined without a hearing’” (at paragraph 24).

20. In GIA/1053/2011 (Dransfield v IC) I stressed the importance of looking at all the circumstances to establish whether or not an appellant had indeed consented to a hearing on the papers within rule 32(1)(a). In my initial observations in that appeal (at paragraph 20), which I confirmed in my final decision (at paragraph 2), I further observed as follows:

‘Not only must each party have consented, but the FTT had also to be “satisfied that it can properly determine the issues without a hearing” (rule 32(1)(b)). It is not apparent from the FTT’s statement of reasons that the tribunal actually asked itself that question. In doing so, the tribunal would have to consider the overriding objective (see rule 2), including, where appropriate, ensuring, so far as is practicable, “that the parties are able to participate fully in the proceedings” (rule 2(2)(c)). There is no mention by the tribunal of the overriding objective or the considerations that might apply to the exercise of that discretion.’

21.	Rule 32 does not exist in a statutory vacuum. There are other equivalent or at least broadly similar procedural rules in the other Chambers of the FTT. The parallel rule in the Social Entitlement Chamber is rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685). In allowing the claimant’s appeal in MM v Secretary of State for Work and Pensions (ESA) [2011] UKUT 334 (AAC), Judge Mesher ruled as follows (at paragraph 11):

“… There was nothing in any documents apart from the statement of reasons to indicate that the tribunal addressed its mind to rule 27(1) or to whether or not it was fair and just to adjourn for a hearing to take place (or possibly, to give the claimant a further opportunity to make written representations or put in further evidence without there necessarily being a hearing). Then there was nothing in the statement of reasons to indicate that that had been done either.”

22.	Judge Mesher also held as follows (at paragraph 12):

“It is necessary for the tribunal to acknowledge explicitly that it has considered both of the necessary conditions for excluding the duty under rule 27(1) to have a hearing and to give some reasons (which may, in appropriate circumstances, be very shortly expressed) for its conclusion.”

The application of those principles in the present case
23.	I am satisfied that the FTT erred in law in the approach it took to rule 32(1). I disagree with both of the Information Commissioner’s contentions on this procedural issue.

24.	The starting point in rule 32(1) is that “the Tribunal must hold a hearing before making a decision which disposes of proceedings”. So the presumption is that there is an oral hearing (see also rule 1(3)). The next question is whether “each party has consented to the matter being determined without a hearing” within rule 32(1)(a). The Commissioner had certainly so assented. But had the Appellant actually consented? The Commissioner’s argument, in effect, is that there was a deemed consent through the lack of any express objection on her part (see paragraph 16 above). I disagree for the following reasons.

25.	First, it was plain from the history of this matter that the Appellant had, from the outset, wanted an oral hearing. She said so in her notice of appeal to the FTT. She repeated that request in various e-mail communications to the FTT office before the final case management directions on 14 December 2011. That history has to be looked at in the round. In her e-mail of 7 December 2011, the Appellant stated “PAPERWORK EXERCISE TRIBUNAL DECISION is NOT finally agreed was said and is possible was also said and wholly DEPENDANT upon the DISCLOSURE issues”. Her subsequent e-mails of 30 December 2011 and 5 January 2012 both complained about what she regarded as inadequate disclosure. True, the Appellant did not expressly state in either e-mail that “I object to clause 1 of the case management directions and insist on an oral hearing”. However, she had not agreed in terms to a final paper hearing. Furthermore, her subsequent e-mails made it (tolerably) clear that she remained dissatisfied with the documentation provided (and so that any contingent agreement on her part to a possible paper hearing was certainly not made out).

26.	Second, there is, of course, no record before me of the discussion at the two telephone case conferences. The potential for misunderstanding in such circumstances is obvious. Suffice to say that I am satisfied that the Appellant understood from the tenor of those conversations that she still had the right to an oral hearing. I am certainly not satisfied that she gave her consent to a final hearing on the papers.

27.	Third, the Commissioner effectively asks me to find that “silence equals consent”. I have indicated above why that is unacceptable on the facts of this case, given the actual history of the various communications described above. However, the Commissioner’s argument is further weakened when one compares rule 32(1) with its equivalent in the Social Entitlement Chamber (rule 27(1)). Rule 32(1) provides in part that “the Tribunal must hold a hearing before making a decision which disposes of proceedings unless — (a) each party has consented to the matter being determined without a hearing.” Rule 27(1), however, provides that “the Tribunal must hold a hearing before making a decision which disposes of proceedings unless — (a) each party has consented to, or has not objected to, the matter being decided without a hearing” (emphasis added).

28.	In my view the insertion of the phrase “or has not objected to” in rule 27(1), but not in rule 32(1), is significant, given that both sets of rules were made by the same Tribunal Procedure Committee (Tribunals, Courts and Enforcement Act (TCEA) 2008, section 22), under the specific power in TCEA 2008, Schedule 5, paragraph 7(a). Rules 27 and 32 both have the effect that, where each applies, there must be an oral hearing if any party wants one. In the Social Entitlement Chamber, once an appeal has been lodged (which does not have to be on a specific form), the FTT office routinely sends out an enquiry form asking the parties if they want an oral hearing. The caveat in rule 27(1), namely the phrase “or has not objected to”, means that in that jurisdiction a party may be assumed not to have objected (to a paper hearing) if they do not return that form. It is well known that many social security claimants lodge appeals but later, for various reasons, do not actively pursue them. The FTT office procedures and the wording of rule 27 provides for what is in effect a deemed consent to a paper hearing. In my judgment the absence of that phrase in rule 32(1) is significant. I have already found on the facts that the Appellant had not consented to a paper hearing. However, rule 32(1), unlike rule 27(1), simply provides no warrant for any assumed or deemed consent.

29.	The question that the FTT had to ask itself next was whether “the Tribunal [was] satisfied that it can properly determine the issues without a hearing” (rule 32(1)(b)). The Commissioner, in effect, asks the Upper Tribunal to take that on trust (see paragraph 17 above). However, that submission fails to take account of the points I made in the earlier observations in this appeal and also in Dransfield v IC (GIA/1053/2011), which are echoed in Judge Mesher’s decision in MM v Secretary of State for Work and Pensions (ESA). At paragraph 12 of my observations on this appeal, I suggested that “it might have been necessary for the FTT to take into account, when considering whether it could proceed without an oral hearing under 32(1)(b), the fact that the Appellant’s communications were confused and often hard to follow and whether she might have been able to express herself more clearly in person.” I conclude, for the reasons above, not just that it might have been so necessary, but it was so necessary, bearing in mind the overriding objective in rule 2. Indeed, at paragraph 20 of its decision, the FTT confessed that in relation to one of the Appellant’s grounds of appeal, “the Tribunal unfortunately has been unable to comprehend exactly what this ground of appeal represents”. 

Conclusion to analysis
30.	My conclusion is that the FTT’s decision involves an error of law in that rule 32(1) was not properly applied. On that basis I allow the Appellant’s appeal.

What happens next
31.	Even though I have found there to be an error of law by the FTT, I have given serious consideration to refusing to set aside the FTT’s decision. I have a discretion in that regard (see TCEA 2008, section 12(2)(a)). The reason for possibly taking that unusual course of action is that, on reviewing the file, I have some doubts as to whether the Appellant can actually show that her substantive appeal to the FTT should succeed under section 58 of FOIA. I say that not least as the onus will be on her to show that English Heritage holds further relevant information which has not been disclosed under FOIA. I also have regard to the proportionality of the matter.

32.	However, I am acutely conscious that the Appellant has not had the oral hearing which (subject to what will be said in a moment) the procedural rules provide that she is entitled to, if she wishes. There is still mileage in the old adage that justice must not only be done, but it must be seen to be done.

33.	I therefore allow the appeal, set aside the FTT’s decision and remit the matter for re-hearing before a new tribunal (TCEA 2008, section 12(2)(b)(i)).

34.	However, it does not necessarily follow that there will be an oral hearing of the Appellant’s original appeal to the FTT. Although presumptive, the Appellant’s right to an oral hearing is not absolute. The procedural rules allow for an appeal to be struck out without an oral hearing in certain circumstances. I note in this regard that the Commissioner, in his further response to the Upper Tribunal, expressly reserves the right to re-apply for the appeal to be struck out under rule 8. The decision on any such re-application is, of course, a matter for the new FTT. The previous FTT, I note, specifically refused the Commissioner’s original such application. I simply make the following two general observations.

35.	First, I simply reiterate what I said in AW v IC and Blackpool CC [2013] UKUT 030 (AAC) about the high threshold imposed by rule 8 on strike out applications. Such a step is a draconian power of last resort. In the light of the current constraints on public expenditure, it may be understandable that the Commissioner and public authorities may seek to have apparently unmeritorious cases struck out. However, an over-ready willingness to take such a stance may well result in false economies, added delays and further injustice. The relative ease of access to the Upper Tribunal (at least when compared with the previous route of appeal from the former information tribunal to the High Court) is no answer. It may be a cost-free zone for requesters, but there are significant costs both to the Upper Tribunal and to other cases being heard at that level. The answer is that the FTT should follow the relevant procedural requirements at all times, bearing in mind the overriding objective of dealing with cases fairly and justly. 

36.	Second, I also refer to what I said in Craven v Information Commissioner and DECC [2012] UKUT 442 (AAC) about the need for all parties in information rights appeals to avoid an unduly adversarial approach and for tribunals “to be more alive to the importance of making their processes accessible to ordinary citizens acting without the benefit of professional representation” (at paragraph 96).

Conclusion
37. I therefore conclude that this appeal must be allowed. The FTT’s decision is set aside and the case is sent back to the FTT for re-hearing. A FTT judge or registrar will doubtless give directions for the re-hearing.

Signed on the original				Nicholas Wikeley
on 22 May 2013					Judge of the Upper Tribunal