Wheeler v Information Commissioner

Where a tribunal sets aside its own decision because material submissions were overlooked, the rehearing must be conducted afresh. The same panel should not ordinarily determine it, because a fair-minded observer may apprehend that its earlier conclusion and confirmation bias will compromise objective reconsideration.

A practice statement governing the number and qualifications of tribunal members does not authorise particular individuals to sit and cannot displace the requirements of natural justice. A purported review is insufficient if it does not demonstrate reconsideration of all the evidence and submissions. Where specialist expertise and the participation of an absent interested body are material, remittal to a differently constituted First-tier Tribunal may be appropriate.

Mr Wheeler sought from the Ministry of Defence a fire-risk-assessment report concerning a petroleum storage depot. The request was made under the Freedom of Information Act 2000, although the relevant statutory regime was the Environmental Information Regulations 2004.

The Ministry withheld the report and the Information Commissioner upheld that position. The First-tier Tribunal dismissed Mr Wheeler’s appeal. When it emerged that it had overlooked his comments, its presiding judge set aside that decision under rule 41 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. The same panel then reconvened and again dismissed the appeal, describing the process as a review.

The central issue before the Upper Tribunal was whether that second determination was procedurally lawful and, if not, whether the appeal should be reheard in the Upper Tribunal or remitted.

1. Appeal allowed. The First-tier Tribunal’s second decision involved errors of law. It was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and remitted for a rehearing before a differently constituted panel.

2. The First-tier Tribunal had been correctly constituted for the first hearing. Once it discovered that it had failed to consider Mr Wheeler’s submissions, its presiding judge was entitled to set aside the decision under rule 41 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

3. The relevant practice statement prescribed the number and expertise of members for information-rights cases. It did not determine which particular individuals could sit. Natural justice remained controlling. Although there was no suggestion of actual impropriety, a fair-minded assessment of appearances made it inappropriate for the same panel to rehear a case it had already decided. There was a risk that members would seek, however unconsciously, to confirm their earlier conclusion rather than approach the matter objectively afresh.

4. Further, after the original decision had been set aside, the tribunal had to reconsider the appeal completely afresh on all the evidence and submissions, including the previously overlooked material. The description of the second process as a review did not show that this had occurred and created sufficient doubt that it had not.

5. Remittal was preferable to an Upper Tribunal rehearing. The rehearing would benefit both from the specialist members required in information-rights cases and from considering whether the Ministry of Defence should be joined and make submissions.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, and remitted the case for rehearing by a differently constituted panel.
• First-tier Tribunal (General Regulatory Chamber): Dismissed the information-rights appeal on 31 August 2015, following a second hearing by the same panel after its earlier decision had been set aside because submissions had been overlooked.