Liam Gerard Harron v The Information Commissioner & Anor
[2024] UKUT 275 (AAC)
Gary Shipton v The Information Commissioner & Anor
12 July 2023
[2023] UKUT 170 (AAC)
Upper Tribunal
Someone appealed a decision because a judge missed part of the hearing. Even though the way it was handled wasn't quite right, the person agreed to it, so the original decision stands.
Key Facts
- •Appeal concerning the composition of a First-tier Tribunal (FTT) in a Freedom of Information Act (FOIA) case.
- •One FTT panel member (Palmer-Dunk) was absent during the hearing of oral evidence, but with the parties' consent, viewed the recorded evidence later and participated in deliberations.
- •Appellant, Mr. Shipton, argued that the consequences of the absence were not explained to him, rendering his consent involuntary, uninformed, and not unequivocal.
- •The Information Commissioner and Dorset County Council opposed the appeal.
- •The Upper Tribunal considered the relevant legislation (TCEA 2007 and related orders) and case law (R (on the application of Hill) v Institute of Chartered Accountants [2013] EWCA Civ 555).
Legal Principles
A member of a tribunal may not absent themselves during the hearing of oral evidence and later participate in the decision, unless all parties agree; such agreement must be voluntary, informed, and unequivocal.
R (on the application of Hill) v Institute of Chartered Accountants [2013] EWCA Civ 555
A matter to be decided by two or more members of a tribunal may, if the parties agree, be decided in the absence of one or more (but not all) members.
Tribunals, Courts and Enforcement Act 2007, Schedule 4, paragraph 15(6)
The Upper Tribunal may, but is not required to, set aside the decision of the First-tier Tribunal if an error of law is found.
Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)
Outcomes
The appeal is allowed.
The FTT erred in law by not following Schedule 4, paragraph 15(6) of the TCEA 2007 when dealing with the panel member's absence. However, the error did not result in a breach of natural justice because the appellant's consent was deemed voluntary, informed, and unequivocal.
The FTT's decision is not set aside.
Setting aside the decision would be unreasonable and disproportionate given the circumstances.