Gary Shipton v The Information Commissioner & Anor

A First-tier Tribunal hearing a Freedom of Information appeal must comply with its statutory composition. Where a three-member panel is required, the parties may consent to the matter being decided in the absence of one member, but the legislation does not permit that member to miss the effective hearing and later rejoin the panel for deliberations. A tribunal member’s absence while live evidence is given will ordinarily breach natural justice unless the parties’ consent is voluntary, informed and unequivocal. Even where an error of law is established, the Upper Tribunal may decline to set aside the First-tier Tribunal’s decision where there has been no unfairness and setting it aside would be disproportionate.

Mr Gary Shipton appealed against a decision of the First-tier Tribunal (General Regulatory Chamber) dated 28 November 2022 concerning his Freedom of Information request to Dorset County Council. The FTT panel comprised a judge and two specialist members. One specialist member was absent during the effective hearing, which included the oral evidence of four witnesses, but was later given access to the recording and participated in deliberations with the parties’ consent.

The FTT allowed the substantive appeal in part. Mr Shipton appealed to the Upper Tribunal on the ground that the panel’s composition and procedure involved an error of law and unfairness. Permission was granted on that ground alone. The central questions were whether the FTT could proceed in that manner under the Tribunals, Courts and Enforcement Act 2007, and whether the procedural arrangement breached natural justice.

1. Appeal allowed, but decision not set aside. The FTT’s decision involved an error of law in relation to panel composition. Nevertheless, its decision stood.
2. The statutory and procedural framework required most General Regulatory Chamber FOIA appeals to be determined by one judge and two specialist members. Paragraph 15(6) of Schedule 4 to the Tribunals, Courts and Enforcement Act 2007 permits the parties to agree that the matter may be decided in the absence of one or more, but not all, of the members chosen to decide it.
3. The statutory reference to deciding the matter covers the whole decision-making process. That process is a seamless web, including preparation, hearing the evidence, evaluating the evidence and submissions, and formulating the decision. Paragraph 15(6) therefore permits a short tribunal where a member is unavailable, but does not permit the composition to change from three members to two and then back to three after one member has missed the effective hearing.
4. The Court of Appeal’s decision in R (on the application of Hill) v Institute of Chartered Accountants [2013] EWCA Civ 555; [2014] 1 WLR 86 established that absence during live evidence will normally breach natural justice unless the parties agree. Such consent must be voluntary, informed and unequivocal. Although the FTT’s procedure was legally defective under the statutory composition provision, Mr Shipton’s consent satisfied those requirements, so there was no breach of natural justice.
5. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal had a discretion not to set aside the FTT’s decision. In the absence of unfairness, and with the remaining grounds certified as totally without merit, setting aside the decision for remittal or re-making would have been disproportionate.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal on the ground that the First-tier Tribunal’s decision involved an error of law, but declined to set aside that decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (General Regulatory Chamber): on 28 November 2022 allowed the substantive Freedom of Information appeal in part, finding that the Council held some information within the scope of the request but did not hold other alleged information.