A Teacher v Disclosure and Barring Service & Anor

An anonymity order made under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is directed to the Upper Tribunal’s own proceedings. Its statutory context does not permit it to control a separate decision made by another public authority under a different statutory regime. The order may prevent publication which identifies protected persons as participants in the Upper Tribunal proceedings, including through jigsaw identification. It does not generally prevent a regulator from publishing its own decision where publication is required by statute. Challenges to the regulator’s publication decision fall within the jurisdiction of the High Court, ordinarily by judicial review.

The appellant had successfully appealed a Disclosure and Barring Service barring decision. The Upper Tribunal’s earlier decision allowed the appeal and remitted the matter, while making a rule 14 order preventing disclosure or publication of anything likely to identify the appellant, her children or the pupil involved in the proceedings.

Separately, the Teaching Regulation Agency conducted professional disciplinary proceedings and the Secretary of State decided to make a prohibition order. The Secretary of State was required to publish specified information, including the appellant’s name and reasons for the order. The issue was whether the proposed publication would breach the rule 14 order and whether the Upper Tribunal had jurisdiction to control publication otherwise.

1. The proposed publication would not breach the rule 14 order. The Summary Decision had been redacted so that it contained nothing enabling readers to identify the appellant, her children or the pupil as persons involved in the Upper Tribunal proceedings. Publication of the appellant’s name, without more, did not breach the order.
2. The scope of rule 14 is confined by the Upper Tribunal’s statutory context. Although rule 14(1)(b) is not expressly limited on its face, it forms part of procedural rules governing proceedings before a statutory tribunal. The power is therefore available only in relation to the Upper Tribunal’s own proceedings. It may, depending on the terms of the order and how third parties are notified, affect non-parties to the extent necessary to protect anonymity within those proceedings, but it cannot regulate a separate professional disciplinary process.
3. Section 25 of the Tribunals, Courts and Enforcement Act 2007 does not confer a general inherent jurisdiction. Its reference to matters incidental to the Upper Tribunal’s functions supplements existing functions and does not create additional jurisdiction over decisions of the Secretary of State or the Teaching Regulation Agency.
4. The Upper Tribunal therefore had no jurisdiction to require the further amendments sought by the appellant or otherwise control the Secretary of State’s publication decision. Any challenge to the statutory publication decision lay in the High Court, by judicial review. An undertaking that publication would be delayed for 21 days after issue of the decision was recorded.
5. Applications by third parties for copies of the earlier Upper Tribunal decision were to be referred to a judge for directions.

• Upper Tribunal: On 10 February 2022, the Upper Tribunal allowed the appellant’s appeal against the DBS barring decision, identified errors of law and remitted the matter to the DBS. It also made a rule 14 anonymity order.
• Present decision: The Upper Tribunal determined the subsequent dispute concerning the effect of that order on publication of the Secretary of State’s separate professional disciplinary decision.