Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
In Coombs v Information Commissioner & Buckinghamshire Grammar Schools [2024] UKUT 195 (AAC), Upper Tribunal Judge Citron dismissed an appeal against a decision of the FTT to dismiss a requester’s appeal for information about errors within the administration of the 11+ exam in Buckinghamshire. The FTT’s decision was a second decision, following an earlier successful appeal to the UT in 2023. It was also unusual in that it was a split decision, with the lay members outvoting the FTT Judge in the case, who delivered a dissenting judgment. The FTT therefore, by a majority, upheld the decision to withhold the information under s.41 (and also s.43). It granted permission to appeal. The appeal focused on the reasons in the dissenting judgment and the alleged failures by the majority to deal with those issues. These were said to be errors of law.
UTJ Citron set out the Upper Tribunal’s error of law jurisdiction as summarised in IC v Experian [2024] UKUT 105 (AAC), and noted that what the FTT had to do in this context as regards the s.41 exemption was carry out evaluative judgments. The fact that the FTT had been split did not help in this regard: the question was whether the decision of the majority was one that no reasonable tribunal could have reached on the evidence before it, or whether it took some immaterial (the judgment says ‘material’ but this must be wrong) into account. It was a classic case where different FTTs might weight the factors differently and reach a different view, but that did not mean that the majority decision was tainted by error of law. Having upheld the FTT’s decision on s.41, there was no need to consider s.43 on the appeal.
This is a helpful summary of the principles relating to errors of law in the FTT in the context of FOIA. The summary of the error of law jurisdiction (separated out from the lengthy Experian decision which was in a data protection rather than FOIA context) is likely to be very helpful when considering bringing or responding to challenges to FTT judgments in future.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
