IN THE UPPER TRIBUNAL 		Appeal No: GIA/886/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright 

DECISION 

	The Upper Tribunal dismisses the appeal of the appellant.

Although the decision of the First-tier Tribunal of 15 January 2013 under reference EA/2012/0163 involved an error on a point of law that error was not material to its decision and its decision is therefore not set aside.

This decision is made under section 12(1) and 12 (2)(a) of the Tribunals Courts and Enforcement Act 2007

REASONS FOR DECISION 

Introduction
 
1.	This appeal has its roots in a decision made by the second respondent on 31 January 2012 that the request the appellant had made to it on 25 November 2011 was “vexatious” under section 14(1) of the Freedom of Information Act 2000 and so did not require a response. More importantly, however, the narrower issue for the Upper Tribunal to decide is whether the First-tier Tribunal erred materially in law in agreeing with the first and second respondents that the request was vexatious.

2.	This last point needs to be stressed given the shape of many of the appellant’s submissions on this appeal. The Upper Tribunal is not concerned on this appeal with deciding itself whether the request is vexatious, less so is it concerned with whether the speed camera and driver awareness courses used by the Dorset Police are merited. The Upper Tribunal’s sole, and narrow focus, is on whether the First-tier Tribunal erred materially in law in confirming the first respondent’s decision that the relevant request was vexatious. I explain further below what is meant by material error of law.              

3.	In summary my decision is that: (a) the First-tier Tribunal did not err in law by either being biased or failing to give adequate reasons for its decision, (b) the First-tier Tribunal erred in  law by failing to establish to its satisfaction that all parties to the appeal had consented to the appeal being decided without a hearing, but (c) that this error of law was not material to its decision (on s.14(1)) and therefore it is not appropriate to set its decision aside.    

Background 

4.	The appellant in his own words is an accomplished engineer. He holds strongly held views about the relevance of speed to road safety and Dorset Police’s use of speed cameras and driver awareness courses in respect of the same.  His contention is that the use of speed cameras, and spin-offs for those caught by them such as driver awareness courses, are not primarily aimed at road safety but “jobs, money and empires”.
    
5.	The appellant has made a number of requests to Dorset Police for information relating to the cost of and money generated from speed cameras and driver awareness courses.    In April 2011 he had asked Dorset Police to provide him with the cost per person of provision of driver speed awareness courses run by that police force in partnership with “Dorset Road Safe”, and what made that cost up.  Dorset Police eventually responded on 24 June 2011 by saying that the information was accessible by other means, and directed the appellant to a pdf file on its website.  On the same day the appellant responded by making a further request, or an amendment of his first request, in which he noted that in the 2010/2011 budget 20,507 had attended such a course at a total cost of £813,000, which he calculated at a cost per person of £39.65, and he asked for a breakdown of what made this cost up.  On 25 November 2011 Dorset Police provided the appellant with a breakdown, but of the budget figures relevant to its 2011/2012 budget. 

6.	It is this last response that led to the appellant’s further request on 25 November 2011, which has been held to be vexatious. By a letter dated 31 January 2012 the Assistant Chief Constable (Operations) for Dorset Police wrote to the appellant and refused the request as vexatious.  That letter set out the Dorset Police’s perspective of the appellant’s past, numerous requests for information and contacts with Dorset Police on the same issue. It is that decision that led to the appellant’s complaint to the Information Commissioner’s Office (the “ICO”).

The ICO’s Decision of 12 July 2012 
 
7.	The ICO’s decision was that Dorset Police correctly determined the request to be vexatious.  The ICO’s decision notice set out its then guidance for determining “vexatious request” cases at paragraph 18.  That guidance referred to five considerations: (i) could the request fairly be seen as obsessive; (ii) is the request harassing the authority or causing distress to staff; (iii) would complying with the request impose a significant burden in terms of expense and distraction; (iv) is the request designed to cause disruption or annoyance; and (v) does the request lack any serious purposes or value?

8.	The ICO found that the request was obsessive when viewed in the context of other similar requests made by the appellant; that it was harassing when viewed against the tone of the language sometimes used by the appellant, the number of request and the likelihood that it would only lead to further complaints, criticisms and requests without generating a productive outcome; that compliance with the request would impose a significant burden on Dorset Police when viewed in the context of past requests; and, drawing on evidence from the appellant’s website, on balance the intention behind the request was to cause disruption or annoyance. However the ICO accepted that the request had a serious purpose.  Weighing these  five criteria, the ICO determined that Dorset Police had demonstrated that the 25 November 2011 request made by the appellant was vexatious.

The appeal to the First-tier Tribunal

9.	This decision led to the appellant’s appeal to the First-tier Tribunal (“the tribunal”). In his appeal grounds the appellant sought to draw a distinction between the request and the requester and submitted that the decision was flawed because it was concerned only with the latter and not the former.  He then referred to the background and said that it had nothing to do with the request, which was an entirely simple one in his view.  He disputed the number of requests he had made, or information he had provided to, Dorset Police and said he would continue to make requests until they were properly answered; prior requests having been considered badly by Dorset Police.
  
10.	He also submitted that it was not possible to harass a competent and ethical person, and if staff felt victimised and upset they should have responded more professionally earlier: any competent organisation would hold proper records concerning its finances. It was “absolute nonsense” to suggest Dorset Police staff had tried to engage positively.  Further, it was not a burden for Dorset Police to reveal that which they should not be hiding.  Moreover, Dorset Police had been told “over, and over and over again” that the purpose of the request was to properly explain its practices that Dorset Police’s motivation in running the driver awareness courses was not to save life but to make money.  
11.	In the Notice of Appeal form at paragraph 10 the appellant recorded under his requirements that he would prefer as much as possible for the appeal to be carried out in writing, but that if he did have to attend any hearing he would prefer it to be near his home address.

12.	The Information Commissioner’s response to the appeal opposed it and concluded by saying that he believed that it would be appropriate and proportionate for the appeal to be decided on the papers.

13.	Dorset Police were also a party to the appeal after the Chamber President’s, Judge Warren, directions of 22 August 2012 (page 116). On 11 September 2012 Dorset Police notified the clerk to the tribunal for her information that “Dorset Police do not intend to make a separate submission to the Tribunal in this matter”. 

Tribunal’s decision
 
14.	The tribunal dismissed the appellant’ appeal, with reasons, on 15 January 2013.  It directed itself, correctly in my judgment, that the guidance referred to above was not to become a box ticking exercise, and that “vexatious” in the context of freedom of information “represents conduct, here a request or requests, which bear no sensible proportion to the supposed objective”.  In its view, the character of the request has to be judged against the background of what preceded it and the person making the request.

15.	From this perspective, the tribunal found that there had been a long history of requests, criticism and campaigning against Dorset Police and Dorset Road Safe by the appellant conducted from a hard-hitting website.  It found that the exact volume of requests and emails was of little consequence but that the appellant kept up a pretty constant stream of demands over a considerable period.  The tribunal concluded, in dismissing the appeal and upholding the ICO’s decision:

“It is our clear conclusion from what we have seen, especially the Appellant’s own submissions, that he was not making requests in order to obtain campaigning information but rather to maintain unrelenting pressure on [Dorset Police] and to demand their time and resources. Whatever the replies he obtained, it seems he would still come back with further demands”.  

16.	That reasoning was repeated and explained further when the tribunal refused permission to appeal (pp 104-106).

Permission to appeal 

17.	I gave permission to appeal on 17 April 2013, and said this when so doing:

“Permission
 
I give permission to appeal because in my judgment it is arguable that the First-tier Tribunal erred in law in two respects concerning rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI No. 1976 of 2009) (the “TPR”). I shall refer to these as the “procedural grounds”.
	        
[Appellant’s] grounds 

As I have given permission to appeal on the procedural grounds identified below I prefer, at this stage, to express no concluded view on the grounds of appeal relied on by [the appellant]. 

Procedural grounds                                                 
  
Rule 32 of the TPR provides as follows:    

“32.—(1) Subject to paragraphs (2) and (3), the Tribunal must hold a hearing before making a decision which disposes of proceedings unless— 
(a)each party has consented to the matter being determined without a hearing; and 
(b)the Tribunal is satisfied that it can properly determine the issues without a hearing. 
(2) This rule does not apply to a decision under Part 4 (correcting, setting aside, reviewing and appealing Tribunal decisions). 
(3) The Tribunal may in any event dispose of proceedings without a hearing under rule 8 (striking out a party’s case). 
(4) Notwithstanding any other provision in these Rules, if the Tribunal holds a hearing to consider a preliminary issue, and following the disposal of that preliminary issue no further issue remains to be determined, the Tribunal may dispose of the proceedings without holding any further hearing”. 

Rule 32(1) of the TPR (the rest of rule 32 is irrelevant) is in two parts.  On the face of it both parts must be satisfied if an appeal is not to be decided at a hearing. (“[H]earing” is defined in rule 1(3) of the TPR as meaning “an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication”).
 
The first part is that each party has consented to the appeal being decided without a hearing. Therefore if one party has not consented then an oral hearing must be held, and the second part of rule 32(1) does not arise.

Assuming, however, that all parties have consented to the appeal being decided on the papers alone, the second part of rule 32(1), on its face, is to the effect that the tribunal must (still) hold an oral hearing unless it is satisfied that it can properly decide the appeal without a hearing.                       

There was no hearing in this case.  As the front sheet of the First-tier Tribunal’s decision and reasons shows (page 88 of the Upper Tribunal’s bundle), the appeal was determined on the papers on the 7th of December 2012. The appellant had very arguably consented to the appeal being decided without a hearing when he said in Section 10 of his Notice of Appeal (page 62) that he would “prefer as much as possible [for the appeal] to be carried out in writing/email”. The Information Commissioner, too, gave his consent in paragraph 42 of his Response (to [the appellant’s] appeal to the First-tier Tribunal)(page 74) when he said he believed that “it would be appropriate and proportionate for the appeal to be decided on the papers”. (The directions that then follow on page 78 were the Information Commissioner’s suggested draft directions, but there is no evidence that these were adopted or issued by the First-tier Tribunal).  The problem, however, lies in whether the Dorset Police ever gave such consent.

The relevant history, as I have been able to identify it, is that on the 17th of August 2012 the Dorset Police emailed the First-tier Tribunal asking to be joined as a party to the appeal…….. That led the Chamber President, Judge Warren, on 22 August 2012 to make a direction saying that “Dorset Police are joined as a party to this appeal”. That direction was issued by email to the parties on 22 August 2012, together with, inter alia, some possible directions for all the parties to agree.  Those “possible directions” were seemingly predicated on there being a hearing of the appeal and set out potential steps to be bring the appeal on for hearing.  There is no evidence that the possible directions were ever agreed by the parties, or indeed that any other directions were ever agreed. As noted at the end of paragraph 12 above, the draft directions attached to the Information Commissioner’s response – directions which included a direction that the appeal be decided on the papers – were, as far as I can ascertain, never agreed by the parties.  The response and the draft directions were notified to [the appellant] and Dorset Police by the First-tier Tribunal by email on 29 August 2012.  That email also notified Dorset Police that their response to the appeal was due by the 19th of September.  In a separate email of the same date, the First-tier Tribunal sent a copy of the Information Commissioner’s response and draft directions of 28 August 2012 to Dorset Police.  This was acknowledged by Dorset Police on the same day. The last communication from Dorset Police with the First-tier Tribunal  after this and before the tribunal made its decision was an email of 11 September 2012 in which Dorset Police stated simply that it did “not intend  to make a separate submission to the tribunal in this matter”.
  
The critical date for rule 32(1) of the TPR must be the date of decision of the First-tier Tribunal (or perhaps the date when the determination was made, if, as here, different), because that is the last point at which a hearing could be held before the decision is made. Accordingly, the critical issue is whether Dorset Police consented to the appeal being decided on the papers before 15.01.13.  On the above chronology it seems to me well arguable that the Dorset Police did not provide such a consent before 15.01.13, and it is therefore arguable that the tribunal erred in law in deciding the appeal in a manner which was not open to them, namely without a hearing. That arguably so fundamentally breaches the imperative “must” in rule 32 of the TPR as to make it a material error of law.  

The contrary argument, it seems to me at this stage, must be based on the email from the Dorset Police of 11 September 2012 to the First-tier Tribunal. However, can the statement that the police do not intend to make a separate submission to the tribunal amount to its consent (whether express or implied) to the appeal being decided without a hearing, absent the email saying the Dorset Police adopted and relied in full on the Information Commissioner’s response?  Moreover, is there any room for consent to be implied under rule 32(1) of the TPR or does the rule require an express consent to be given? A contrast with the equivalent rule in the procedure rules for the Social Entitlement Chamber of the First-tier Tribunal (rule 27 of SI2008/2685) – where the relevant wording is “each party has consented to, or has not objected to, the matter being decided without a hearing” (underling added for emphasis) – might suggest that the giving of consent has to be a positive act. And, in any event, given the importance of consent from all the parties to the tribunal’s ability to decide the appeal without a hearing, is it not arguable that the tribunal in law in failing to explain in its reasoning why it was satisfied that all three parties to the appeal had in fact given their consent to the appeal being decided without a hearing.    This lack of consent point (or reason on it) I will refer to as the “first procedural ground”.

The second procedural ground concerns the second part of rule 32(1) of the TPR, which is to the effect that, even if all the parties have consented to the appeal being decided without a hearing, the tribunal must hold an oral hearing unless it is satisfied that it can properly decide the appeal without a hearing. Given: 

i.	Upper Tribunal Judge Wikeley’s views in paragraph [73] of Ainslie –v- Information Commissioner and Dorset CC [2012] UKUT 441 (AAC) (and the reasons he gave for those views in paragraph [72] of the decision) that “[t]he very nature of the issues involved in appeals which have been found to be…vexatious….is such that every effort should be made to ensure that the parties can participate in an oral hearing. This allows the relevant issues to be properly explored  in a way that is simply not always possible on the papers”;

ii.	the requirement of the overriding objective in rule 2(2)(c) of the TPR  includes “ensuring, so far as is practicable, that the parties  are able to participate fully in the proceedings”;

iii.	[The appellant’s] apparent willingness, if necessary, to attend a local tribunal hearing (see his comments after giving consent on page 62); and 

iv.	the decision of Upper Tribunal Judge Mesher in MM-v- SSWP (ESA) [2011] UKUT 334 (AC), 

I consider it is arguable that the First–tier Tribunal erred in law in not, as far as I can see, giving any reasons explaining why it considered under rule 32(1) of the TPR that it could properly decide the appeal without a hearing.                     

18.	Each party has filed submission in reply to the grant of permission to appeal.

Upper Tribunal’s Decision 
 
19.	I regret the time it has taken me to make my decision since the submissions on this appeal closed at the end of June this year. Part of this delay was deliberate as I had another information rights appeal that concerned, inter alia, the consequences of the First-tier Tribunal not holding an oral hearing, in which I held an oral hearing in late September 2013, and I thought some of the learning there might be relevant to this appeal. It wasn’t. In that case the appellant wanted, and indeed thought he was going to have, a hearing of his appeal, and so the consequences of not holding a hearing differed there from this case where, in the final analysis, no-one wanted a hearing before the tribunal.

Bias and inadequate reasons
 
20.	The grounds arguing error of law on bias and inadequate reasons grounds are, with all due respect to the appellant  (who in fairness to him is not a lawyer), somewhat difficult to discern and disentangle from his general attack on the First-tier Tribunal’s decision as being wrong on the merits.
 
21.	It is important to emphasise that an appeal to the Upper Tribunal is not open-ended. It is available only on a point of law. It is therefore not the function of the Upper Tribunal to decide an appeal again on the merits.  Point of law means if the First-tier Tribunal got the particular legal test or tests wrong, or if it failed to consider all the relevant evidence, or if it failed to explain its decision properly, or it breached natural justice.  But if the First-tier Tribunal does all of this correctly, simply disagreeing with the tribunal’s conclusions on particular facts or with the overall outcome is not itself a point of law.

22.	The argument that the Judge (or the First-tier Tribunal that he was part of) was not impartial is really an argument either that the Judge (or the tribunal) was biased in fact against the appellant or that a reasonable onlooker would perceive bias on the part of the Judge (or tribunal).  However, the basis of the appellant’s argument here is really no more than that the appeal was decided against him when in his view it ought to have been decided in his favour. It thus comes down to no more than the fallacious logical syllogism (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased; and any such argument is bound to fail. Moreover, having read all the documents that were before the First-tier Tribunal, in my clear judgment there is no credible evidence to support (i) the grave allegation that Judge Farrer (or the tribunal) was in fact motivated by bias in deciding the appeal against the appellant, or (ii) a case that a reasonable onlooker would have had a perception of bias in respect of Judge Farrer (or the tribunal) deciding the appeal.  The  tribunal’s reasons for its decision shows an entirely proper and impartial assessment of the evidence before it and, likewise, application to that evidence of the section 14 “vexatious request” issue that was before it.
         
23.	As for the adequacy of the tribunal’s reasons, the appellant criticises these on the basis that “I explained a large number of failings of Dorset Police in some detail, but absolutely none of this, or the simple question itself [meaning the relevant information request], has been mentioned at all at any point throughout the history of the case by Dorset Police, the Information Commissioner, or the tribunal. The complete failure to answer the largest quantity of most serious points is a failure to give adequate reasons for the decision”. However, the issue before the tribunal was not whether it agreed that Dorset Police had made such failings as alleged or whether the request should have been answered by Dorset Police, and its reasoning therefore did not need to address these issues.  What the tribunal was concerned with, and as the tribunal (rightly) made plain in its final sentence in paragraph 6 of its reason the only issue it was concerned with, was in effect whether the said request was vexatious within section 14 of the Freedom of Information Act 2000.  The adequacy of its reasoning therefore has to be gauged against how it addressed this issue.
 
24.	In my judgment, the reasoning of the tribunal on this issue was adequate.  The reasoning explains why the request was vexatious, it shows that the tribunal applied the correct legal test of what a vexatious request is (which does not differ, materially, in my judgment, from the test as explained by Upper Tribunal Judge Wikeley in Information Commissioner –v- Devon Country Council ad Dransfield [2012] UKUT 440 AAC; [2013] AACR 28), it shows how the tribunal applied that test to the evidence, and it explains what evidence the tribunal relied on and why.

Consent of all parties to hearing on papers
 
25.	However, in my judgment the tribunal did err in law in not satisfying itself, or failing to show in its reasoning that it had satisfied itself, that all parties to the appeal had consented to the appeal being decided without a hearing.

26.	The terms of rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (the “TPR”) are mandatory, and deliberately so given the importance of the general right to an oral hearing before the First-tier Tribunal: a hearing must be held by the First-tier Tribunal to determine the substance of an appeal. The only exceptions to this are: (i) post-decision matters (r. 32(2)); (ii) where it is being determined whether to strike out proceedings (r.32(3)); or (iii) where each party has consented to the appeal being decided without a hearing and the tribunal is satisfied it can properly determine the appeal without a hearing.  There is no issue that (i) and (ii) were not in play here. 

27.	Accordingly, the tribunal could only have acted as it did – to decide the appeal on the papers – if, first, it was satisfied that each party had consented to the appeal being decided without a hearing and, if so, second, that it could properly determine the appeal without a hearing.                        

28.	There was in my judgment no sufficient evidence before the tribunal to show that Dorset Police had in fact consented to the appeal being decided without a hearing. Again, given the importance of this exception to the general rule that a hearing must be held, and given the wording of rule 32(1)(a) of the TPR, there must in my judgment be evidence of consent positively having been given.  An absence of an objection will not suffice. If it did then the rule could have said so: contrast here the wording of rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.     

29.	Dorset Police’s statement that it did “not intend to make a separate submission to the tribunal on the appeal” does not amount to it consenting to the appeal being determined without a hearing. Without wishing to appear over simplistic, what Dorset Police had to say was it did not wish to attend a hearing of the appeal and agreed to it being decided on the papers alone.  A standard form issued to all the parties to the appeal by the tribunal in which such a question was asked would have addressed this issue.  Absent that consent, however, the tribunal had no jurisdiction to decide the appeal as it did (without a hearing). It therefore erred in law in proceeding as it did and in failing to confirm to its own satisfaction that each party had so consented.  If the tribunal  in fact had done this and, on the basis of unrecorded evidence, obtained the relevant consent from Dorset Police before it made its decision, it nonetheless erred in law in failing to set this out in its decision or the reason for the decision.

30.	I have noted the argument made by the Information Commissioner that Dorset Police may in fact have given such consent by telephone. Quite why this argument is being made by the Information Commissioner and not the Dorset Police is unclear.  However, in the end the trouble with this argument is that (a) it is after the event evidence and, (b) more importantly, even if such a telephone conversation did occur there is nothing to show that the tribunal was aware of it.  It important to emphasise that is the tribunal that is required by rule 32 of the TPR to hold a hearing of an appeal, and likewise in my judgment it is for the tribunal to be satisfied, and show it has been satisfied, that each party has consented to the appeal being disposed of without a hearing. That consideration is entirely lacking from the tribunal’s decision and reasoning.

31.	Similar criticisms may be made about the tribunal in respect of the second limb of rule 32(1) of the TPR. In a sense this is an artificial exercise because the tribunal did not show it had satisfied itself that all the parties to the appeal before it had consented to the appeal being decided without a hearing and therefore the enquiry did not reach whether the tribunal was satisfied that it could properly decide the appeal without a hearing: of itself the lack of consent of one party meant a hearing had to be held.

32.	However, I mention the second limb because it emphasises and gives added focus to the general force of rule 32, namely that in all relevant cases a hearing of the appeal must take place and that can extend to situations even where none of the parties want to have a hearing. Just as important as whether all parties have consented to no hearing is the consideration of the First-tier Tribunal as to whether it can properly decide the appeal without a hearing. That calls for a focus by the First-tier Tribunal on the reasons why it is deciding the appeal on the papers and whether it is appropriate for it to do so.  This is not an empty gesture or one that calls for a formulaic tick box approach. It calls on the First-tier Tribunal in each “paper” appeal before it to: (i) ascertain whether each party to the appeal has consented to the appeal being decided without a hearing; and (ii) even if that is case, whether on the facts of the individual appeal before it the First-tier Tribunal is satisfied that it can properly decide the appeal without a hearing.  

33.	The reasons why the First-tier Tribunal may direct a hearing even where each party has consented to none being needed may only arise infrequently and will, of course, vary depending on the facts of the individual appeal. An example may be where the First-tier Tribunal is concerned that an unrepresented party may be better able to express himself in person rather than in writing.   

34.	The error of law here, however, was the tribunal’s failure to show that it had given any consideration to the rule 32(1) cumulative tests, tests which went to the root of its jurisdiction to decide the appeal without a hearing and which it therefore needed to address and show it had addressed.

35.	However, in the light of the Dorset Police’s post-decision evidence that it would not have asked for a hearing and would have consented to the appeal being decided without a hearing, and having reviewed the evidence before the tribunal and is reasoning for rejecting the appeal, I do not consider the above error of law was material to the tribunal’s decision, and I therefore refuse to set the tribunal’s decision aside.  

36.	As to rule 32(1)(a) of the TPR – each party consents to no hearing – it is clear that either Dorset Police did consent or, if not, it would have done so.  In other words, the error of not getting or identifying Dorset Police’s consent to no hearing made no difference to the decision reached by the tribunal as manifestly it would have taken the same approach and made the same decision if it had known of Dorset Police’s consent to no hearing.

37.	As to rule 32(1)(b) of the TPR – even if consent in place, whether tribunal satisfied it can decide appeal without  hearing – it seems clear to me that the tribunal either was or would have been so satisfied. I say this notwithstanding the quote from Ainslie which I set out when I gave permission to appeal.  This was an observation by Judge Wikeley, no more. It was not saying that oral hearing must be held in all cases, but rather that the First-tier Tribunal may need to be astute to ensuring that unrepresented parties are able to participate fully in the proceedings. I do not consider that any such issue arose here. The appellant is an intelligent and literate person who has evidenced that he is well able to explain himself in writing and argue his case about whether the request was vexatious. In those circumstances, I am left in no doubt that the tribunal would have been properly satisfied that it could decide the appeal without a hearing, and so its error of law in not addressing this issue in its reasoning was not material to its decision.                                                                                                                            

 (Signed) S. M. Wright
Judge of the Upper Tribunal
                                                                                                          
          Dated 15th November 2013