The legal minefield of the PHSO re-opening of cases and the PHSO commencement of fresh/new investigations.

M Boyce made this Freedom of Information request to Parliamentary and Health Service Ombudsman

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Parliamentary and Health Service Ombudsman.

Dear Parliamentary and Health Service Ombudsman,

(1) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of the re-opening of PHSO investigations after a case has been closed.

(2) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of fresh/new investigations after a case has been closed.

Yours faithfully,

M Boyce

InformationRights@CMSPHSOLGO.mail.onmicrosoft.com,

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear M Boyce

 

RE: Your information request: R0000929

 

I write in response to your email dated 11 October 2019 regarding your
request for information to the Parliamentary and Health Service Ombudsman
(PHSO) which has been handled under the Freedom of Information Act 2000.

 

Your request has been considered vexatious under Section 14(1) of the Act.
Section 14 (1) states: ‘Section 1(1) does not oblige a public authority to
comply with a request for information if the request is vexatious’.

 

We consider that your request is burdensome with a level of unjustified
disruption. To respond to this request is considered to be disruptive,
burdensome and the PHSO would have to expend a disproportionate effort to
meet the request which engages section 14(1) whereby we cannot reasonably
be expected to comply.

 

If you believe we have made an error in the way I have processed your
information request, it is open to you to request an internal review. You
can do this by writing to us by post or by email to
[1][Parliamentary and Health Service Ombudsman request email]. You will need to specify that the
nature of the issue is and we can consider the matter further. Beyond
that, it is open to you to complain to the Information Commissioner’s
Office ([2]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: [3]www.ombudsman.org.uk

 

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References

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Dear Parliamentary and Health Service Ombudsman,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Parliamentary and Health Service Ombudsman's handling of my FOI request 'The legal minefield of the PHSO re-opening of cases and the PHSO commencement of fresh/new investigations.'.

I do not agree that my request is vexatious.

The ICO have stated that the PHSO failed to provide relevant legal advice to the First-tier Tribunal regarding the review process. This current request is simply in response to this confusion.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t...

Yours faithfully,

M Boyce

InformationRights@CMSPHSOLGO.mail.onmicrosoft.com,

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

J Roberts left an annotation ()

M Boyce,

You might like to read this recent UT decision:

http://www.bailii.org/uk/cases/UKUT/AAC/...

“7.14 Public authorities should avoid using section 14 for burdensome requests unnecessarily. On this basis they should always consider whether section 12 applies in the first instance. For example, if a public authority considers that locating and extracting the information in scope would exceed the cost limit, section 12 is likely to be most appropriate."

Did the PHSO consider whether section 12 was applicable? If so, when did they decide that it was not? If they did consider it, presumably a record would exist confirming that they did. You could make a 'meta request' asking for a copy of the record which confirms that section 12 was considered.

'8. The Commissioner has issued guidance on meta requests. Her guidance advises:

“A meta request is a request for recorded information about the handling of a previous information request...Meta requests do not have any special status under FOIA or the EIR, nor are there any specificexemptions (or exceptions) for this type of request. This means that an authority should treat meta requests in the same way as any other information request”.'

https://ico.org.uk/media/action-weve-tak...

J Roberts left an annotation ()

Link to the Freedom of Information Code of Practice:

https://assets.publishing.service.gov.uk...

M Boyce left an annotation ()

No J Roberts the PHSO have not considered section 12. My submissions so far have not raised your particularly perceptive point. If I get chance to make a further submission that submission most certainly will.

Jason left an annotation ()

Something very strange has happened to the other thread:

https://www.whatdotheyknow.com/request/t...

At around midnight, a significant number of posts/annotations mysteriously disappeared (not just mine).

I also can't add any more annotations.

M Boyce left an annotation ()

Yes Jason this is very strange and worrying. I will get in touch with WDTK to try and find out what has happened.

M Boyce left an annotation ()

I've sent a message to the WDTK team to ask them to look into or explain what is going on.

M Boyce left an annotation ()

What has now happened to the post from whatyoudontknow, or whatever it or who it was? I didn't open it because I thought it looked dodgy.

Jason left an annotation ()

Yes, something very strange is going on.

I opened it, as it was just a PDF. It was a letter from mySociety.org to a WDTK user threatening to take legal action if they continued to use the site. I'm note sure about the legitimacy of it though.

Jason left an annotation ()

Have you had any response to your enquiry?

M Boyce left an annotation ()

Yes, the WDTK Support Team have told me that they have disabled the annotations function from this request. It would have been nice to have been informed beforehand, so I wasn't worrying about malicious intent etc..

The Team say:

'We would respectfully suggest that the use of our annotation functionality may not be the best way to exchange advice on the matters that you are seeking to address with the PHSO.'

It might not be the best way, but I truly believed it was of real value and benefit to the public and myself - I've learnt much from the exchange of information and I hope others have gained something from it too.

Jason left an annotation ()

That is really saddening news, M Boyce. I thought that thread was an extremely invaluable tool to exchange information of significant public importance.

I've also learnt a lot from that thread.

I wonder if someone maliciously reported it? Why were certain posts deleted and not others?

M Boyce left an annotation ()

Thanks very much Jason, and for sending me the OneDrive information.

The WDTK Team have elaborated further and said that they decided to remove the annotation function from the request because the discussion was straying too far towards criticising the PHSO. In any case, they have said that when I get my Tribunal decision they would be happy to let me post that outcome on that request. I will do that and I will post the decision on here too. I will say that the Tribunal have informed me that they will not be able to assign it to a panel until mid-January 2020 at the earliest.

Thanks everyone for their advice and assistance.

InformationRights, Parliamentary and Health Service Ombudsman

Dear M Boyce

 

PHSO reference R0000929

Internal review of your request for information

 

Thank you for your correspondence of 29^th October 2019 in which you
requested an internal review from the PHSO.

 

PHSO response

 

Request:

(1) Please provide all relevant documents (commissioned legal advice,
discussions, emails, legal briefing notes, unabridged Board Meeting
Minutes etc..) that the PHSO possess with regard to the legal status of
the re-opening of PHSO investigations after a case has been closed.

 

(2) Please provide all relevant documents (commissioned legal advice,
discussions, emails, legal briefing notes, unabridged Board Meeting
Minutes etc..) that the PHSO possess with regard to the legal status of
fresh/new investigations after a case has been closed.

 

 

Response to your request:

 

PHSO refused this request as vexatious under Section 14(1) of the Freedom
of Information Act 2000.

 

Time for response:

 

The request was received on 11^th October 2019 and PHSO’s response was
sent on 29^th October 2019. This is within the 20 working-day limit
established under Section 10(1) of the Freedom of Information Act 2000.

 

Request for an internal review:

 

“I do not agree that my request is vexatious.

 

The ICO have stated that the PHSO failed to provide relevant legal advice
to the First-tier Tribunal regarding the review process. This current
request is simply in response to this confusion.”

 

 

Review of your request:

 

PHSO has reviewed its decision and has upheld the refusal of the request
as vexatious as per Section 14(1) of the Freedom of Information Act 2000.

 

 

Context of the request:

 

Since 24^th January 2018 PHSO has received 20 requests (containing 36
questions) from you on the subject of reviewing PHSO’s decisions, and the
legality behind its decision making. Nine of these have gone to internal
review, and four have been to the ICO. None of these appeals have been
successful. One is currently at First Tier Tribunal, but no decision has
yet been reached.

 

The request is similar to PHSO request R0000153, which asked for the same
document types regarding the legal status of PHSO’s reviews, and the
application of refusing a request because an alternative legal remedy was
available. This request was refused under Section 42(1) of the Freedom of
Information Act 2000 as it was legally privileged, and the ICO upheld the
refusal of this request.

 

The request is also similar to PHSO request R0000532, which asked for
whether PHSO obtained and received external legal advice on its review
process. This request was refused under Section 14(1) of the Freedom of
Information Act 2000 as vexatious, and the ICO upheld the refusal of this
request.

 

 

Arguments request is not vexatious:

 

The subject matter of the request concerns PHSO’s function. This has a
wider interest as it has implications for the individuals who bring
complaints to PHSO, and the wider public who benefit from the work of
PHSO’s complaint handling.

 

Arguments request is vexatious:

 

The context of this request shows that this subject has been looked at
previously on numerous occasions by PHSO. Most requests were complied with
in full, but you have previously shown what the ICO have referred to as
“unreasonable persistence”, and this request is your attempt to pursue the
subject further. Request R0000532 asks for confirmation of information
held, this was refused as vexatious by PHSO and this decision was upheld
by the ICO. That this is then followed up with a wider request asking for
a copy of the actual information – and further documents - shows that you
are misusing the formal procedure afforded to you under Freedom of
Information Act 2000.

 

You have stated this request is intended to address a matter concerning
your appeal of request R0000532 to the First-Tier Tribunal. However, any
disclosure to a request under Freedom of Information Act 2000 is to the
world, and is not the appropriate process for ensuring the Tribunal has
all the material it needs before proceeding with an appeal. This provides
further evidence that the purpose of this request is unjustified, and that
the request is vexatious.

 

PHSO considers that this request creates further work to a subject it has
already diverted significant resources to. There have been many requests
on the subject of PHSO’s reviews, and several appeals through internal
review, the ICO, and the First Tier-Tribunal. The PHSO’s only has a small
team to handle freedom of information requests, and a significant amount
of time has been spent dealing with information regarding the review
process. However, PHSO considers the threshold was crossed with R0000532
when it refused a request from you as vexatious (and the ICO agreed), and
yet you have submitted a further request with a wider scope, which would
involve further work. This burden is an unjustified disruption and shows
the request can be considered vexatious.

 

Having considered the above PHSO has upheld the refusal of the request as
vexatious as per Section 14(1) of the Freedom of Information Act 2000.

 

 

Right of appeal

 

If you are not content with the outcome of your internal review, you may
apply directly to the ICO for a decision. The ICO can be contacted at:

 

The Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

[1]https://ico.org.uk/

 

Regards,

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

E: [2][email address]

W: [3]www.ombudsman.org.uk

 

References

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http://www.ombudsman.org.uk/

Dear InformationRights,

I completely disagree with everything you say.

One point is worth highlighting in particular, because it is displays an astonishing lack of understanding by the PHSO. In your response you state:

'...any disclosure to a request under the FOIA 2000 is to the world, and is not the appropriate process for ensuring the Tribunal has all the material it needs before proceeding with an appeal. This provides further evidence that the purpose of this request is unjustified, and that the request is vexatious.'

Really? Then what is the APPROPRIATE process for ensuring that the Tribunal has all the material it needs?

Ask the PHSO directly for this information? This would be refused/ignored.

Wait for the PHSO to publish this information? That would never happen.

Wait for the Tribunal to ask for this material? The burden of proof lies with appellant, who has to obtain the information themselves.

It is quite clear that the PHSO would never volunteer much information to the public. The FOIA is the ONLY process for obtaining information from the PHSO.

So, I ask again: what is the APPROPRIATE process for obtaining information from the PHSO that would be crucial in an appeal to the First-tier Tribunal?

You won't answer, because you don't have an answer.

I will now appeal this request to the ICO. The ICO will, with a tedious inevitability, agree with everything you say and disagree with everything I say. Then off to the FTT.

Yours sincerely,

M Boyce

M Boyce left an annotation ()

No Jason the case has not been heard by the Tribunal yet. I hope it will be assigned to a Tribunal panel in late January 2020.

I'm sorry to hear about your continuing problems with the PHSO. All we want is justice, and it seems that this is in very short supply if you are not rich and well-connected.

Jason left an annotation ()

Any further news, M Boyce?

M Boyce left an annotation ()

Jason
The Tribunal informed me several weeks ago that my case would now be assigned to a Tribunal panel. Unfortunately they do not let you when the case will be discussed.

As soon as I hear the outcome I will post it on this site.

M Boyce left an annotation ()

I've just asked the GRC whether a tribunal panel has now been found to consider my appeal. I was informed that they were still looking for a panel. It has now been well over a year since my case was sent to the Tribunal and sadly it seems it will be many months or possibly years before it is considered.

Jason left an annotation ()

That's very worrying news, M Boyce. Why are they struggling to put together a panel?

M Boyce left an annotation ()

I don't know Jason, but I suspect it is because they have a backlog of cases. As soon as I hear more I'll let you know.

M Boyce left an annotation ()

This case has now been allocated to an ICO caseworker.

If anyone thinks that the ICO behave in a fair and impartial way, let me just relieve you of that misapprehension.

Today I received a response from the above ICO caseworker, which states EXACTLY the following:

'I was allocated the case on 27 February and have not yet had the opportunity to review it in detail. HOWEVER, from the information I have seen so far it does appear that PHSO has correctly cited section 14 [vexatious] in response to your request.'

And there we have it: the ICO have already made up their mind in just a couple of days that an authority is always right and a complainant is always wrong before they have even looked properly at the evidence. The ICO just look at what the PHSO say and they just completely ignore what a complainant says. Now I have the proof in black and white.
And off to the Tribunal I go... again.

Jason left an annotation ()

That says it all, M Boyce. Seems they are closing ranks with the like of the PHSO and other government agencies, true to form.

When I get 'review' decisions from the PHSO I don't even read them anymore, apart from the final paragraph - I just put them straight in the bin.

What a total waste of taxpayers' money...

J Roberts left an annotation ()

The 'similar request' (R0000153) argument:

“1) Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meeting Minutes, guidance etc.) that the PHSO possess with regard to the legal status of reviews of decisions.

(2) Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meetings, guidance etc.) that the PHSO possess with regard to Alternative Legal Remedy."

https://www.whatdotheyknow.com/request/t...

This compares to:

(1) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of the re-opening of PHSO investigations after a case has been closed.

(2) Please provide all relevant documents (commissioned legal advice, discussions, emails, legal briefing notes, unabridged Board Meeting Minutes etc..) that the PHSO possess with regard to the legal status of fresh/new investigations after a case has been closed.

I don't think the similarities in the following are sufficient to render your request vexatious:

i. “with regard to the legal status of reviews of decisions” and “with regard to the legal status of the re-opening of PHSO investigations after a case has been closed”.

ii. “with regard to Alternative Legal Remedy” and “with regard to the legal status of fresh/new investigations after a case has been closed.”

Jason left an annotation ()

I have just had another horrid experience with the PHSO:

I sent them a complaint over a year ago. They contacted the respective Trust for some curious reason and were told the matter was with the ligation team, which was not entirely accurate as I raised a matter of a contravention of the Equality Act 2010 with the Trust (matters the PHSO should not concern itself with).

The PHSO then allege they wrote to me a year ago informing me of the same, however, I never received the said letter. In that letter, which I have only now received, they closed the complaint pending a response to the issues raised with the Trust, which is certainly curious.

I recently chased the matter up with them, and they have now responded by purporting that I they have now permanently closed my complaint, and will not re-open it, because I didn't chase them up sooner, notwithstanding the fact that the complaint was submitted in time.

This is your trusty PHSO, folks...

M Boyce left an annotation ()

Sorry to hear about this awful experience Jason. I obviously understand why you do not trust what the PHSO have said.

J Roberts, my requests are similar, and deliberately so. The latter is merely wanting clarification of the response and sequelae to the former. I know it's not vexatious, but the ICO only listen to what the PHSO have to say and not what I have to say. It's not what you know or can show, but simply who you know - and the ICO know the PHSO and the PHSO know the ICO.

J Roberts left an annotation ()

'I was allocated the case on 27 February and have not yet had the opportunity to review it in detail. HOWEVER, from the information I have seen so far it does appear that PHSO has correctly cited section 14 [vexatious] in response to your request.'

Your experience reminds me of this PIP claimant who fell victim to 'what is known as a “protective essay”'. In this case, the judge included in the decision something specifically aimed at discouraging the claimant from appealing further:

https://assets.publishing.service.gov.uk...

A caseworker “arrogating to himself the right to decide on the adequacy of his own reasoning” does not seem right.

CH v Secretary of State for Work and Pensions (PIP) [2020] UKUT 19(AAC)

Jason left an annotation ()

Indeed, M Boyce.

I believe the fact that the likes of the ICO and the PHSO exercise shameless bias has become no secret. This is something that was discussed and alluded to in the other thread.

The sad reality is we can't expect a fair and proper decision from this rotten bunch; all we will get is bias and layer after layer of whitewashing.

What saddens me is now the Tribunal are also seemingly dragging their heals. It really beggars belief the lengths that the ordinary person has to go through to get a modicum of justice.

M Boyce left an annotation ()

Today I received an email from the ICO in response to my query about anonymity of ICO caseworkers and decision notices. It stated the following:

'I can advise a number of years ago due to the delays in decisions being signed off and the growing backlog of cases, it was agreed the Senior Case Officer (SCO) could sign off their own decision notices. This was on a voluntary basis and for a variety of reasons not all SCO's volunteered, including myself.'

I asked for this information because I wanted to research potential 'bias' in ICO decision notices. It is my belief that certain case officers may well be 'interpreting' the law, instead of applying it correctly. Since most DN's are now signed off by ICO managers, it is obviously difficult to see who has actually made the DN. Difficult, but not impossible. I aim to make an FOI request to the ICO shortly asking for information to see if this 'bias' is substantial or not. I fully expect the ICO to refuse to provide the names of SCO's associated with particular DN's, so I will instead ask for this data to be anonymised, for example, the initials of each SCO associated with a particular DN.
I am only concerned at this stage with section 42 FOIA cases, as this is where some SCO's correctly regard this exemption as qualified, whereas others 'interpret' the law in their own way and regard it as absolute. At the moment, from the published information, there is no way of knowing whether such an apparent 'bias' can be substantiated.

J Roberts left an annotation ()

I have just done a quick search of FTT upheld/partly appeals where the appellant was the complainant and not the public authority. The earliest appeal I looked at was dated 28/10/19. Between that date and today I found eighteen relevant appeals.

In seven instances, the name on the related Commissioner's DN was the same. One individual's name appeared on DNs three times. The remaining eight appeals were each associated with a different ICO employee.

To read the DN of the earliest one I looked at (it's not on the ICO website) go here:

https://www.whatdotheyknow.com/request/d...

(I didn't spend a lot of time doing my search, so my figures could be slightly out!)

J Roberts left an annotation ()

Clarifications:

The person with 7 is a 'Group Manager' and the person with 3 is also a 'Group Manager'.

I incorrectly referred to appeals upheld and partly upheld. I should have said 'allowed' and 'part allowed':

http://informationrights.decisions.tribu...

M Boyce left an annotation ()

Thanks J Roberts.

So the 10 Group Managers could all be the same Senior Case Officer, or they could all be different. That's why it would be informative to find out. I can understand why some Senior Case Officers would wish to remain anonymous - and they can remain so - as I only want the anonymised data.

M Boyce left an annotation ()

What's happened to the Review and Feedback Team Guidance on the PHSO website? It seems to have completely disappeared.

M Boyce left an annotation ()

I phoned the PHSO 'helpline' this morning, but they couldn't help me with this query. They said they knew nothing about technical matters (page 404)and couldn't put me through to anyone that might know. They did say that there is now no Review and Feedback Team (RaFT) with the PHSO anymore. Why has this not been publicised on the PHSO website? Where do complainants go for guidance? Where is the much publicised openness and transparency here? The PHSO appear to be putting up shutters upon shutters.

Jason left an annotation ()

That's alarming as I've recently had correspondence from the purported Review and Feedback Team.

This page also still applies it would seem:

https://www.ombudsman.org.uk/about-us/fe...

M Boyce left an annotation ()

Yes Jason the review form page still exists, but the detailed RaFT guidance has disappeared.
If the PHSO continues to hide this guidance from the public then another FOI request will unfortunately be necessary to try and make it public again. They will, of course, refuse the request as vexatious!

Jason left an annotation ()

They must be up to something.

Let me know if you would like me to make a FOI request, as they seem to be defining all your request as 'vexatious'.

M Boyce left an annotation ()

Thanks for your offer of assistance Jason, it is very kind. I wouldn't, however, wish to put you at risk of being 'vexatious' by association. In any case, the PHSO did reply to my email yesterday and stated that the guidance had been removed because 'it was out of date' and that the new updated guidance would be published shortly. Let's see.

Jason left an annotation ()

No worries, M Boyce.

One wonders what cynical changes they will be making to their guidance on this occasion.

Keep us posted with any developments your end.

M Boyce left an annotation ()

In the above DN paragraphs 19 and 26 are crucial.

In paragraph 19 the ICO state that they cannot comment on an ongoing tribunal case. This is utter nonsense. They regularly comment on tribunal cases - and indeed, it is essential that they do, as the tribunal process simply could not function if the ICO said nothing on cases - ongoing or otherwise.

In paragraph 26 the PHSO say that it is not appropriate, and is vexatious to use the FOIA to obtain information for a tribunal hearing. This is also utter nonsense. The FOIA exists to afford this provision of information.

The PHSO and the ICO are simply wanting to pervert the course of justice. I will vigorously challenge it through the tribunal system, and we will see if they agree with what is happening.

Chris Hunter (Account suspended) left an annotation ()

I wonder if one of the officers listed in the below correspondence under the heading "Information Commissioner's Office (ICO)" was involved in the Decision Notice.

https://tinyurl.com/tedyxt8

M Boyce left an annotation ()

Not that I am aware of. If a Senior Case Officer does not want their name published with a particular decision, then I will respect that. I do of course know who the SCO is. What I am concerned with is that decisions are made fairly and with as much transparency as possible. This transparency could be largely achieved by anonymising decision notices, but still including the initials or some other unique identifier of the SCO so that patterns in decision making - good or bad - can be seen.

Jason left an annotation ()

Yet another shamelessly bias decision. Were you truly expecting any different, M Boyce?

It seems the only way to obtain a crumb of justice is go though the judiciary I'm afraid, and these cynical government agencies will do everything they can to make that as difficult, risky and laborious as they possibly can.

M Boyce left an annotation ()

No, it is exactly what I was expecting.

J Roberts left an annotation ()

“So the 10 Group Managers could all be the same Senior Case Officer, or they could all be different. That's why it would be informative to find out. I can understand why some Senior Case Officers would wish to remain anonymous - and they can remain so - as I only want the anonymised data.”

It would indeed be informative to find out. Their identities could be completely anonymized using numbers to prevent a 'motivated intruder' finding out something they shouldn't!

I was alerted to the possibility of improperly trained staff preparing decision notices for Group Managers by this:

https://www.whatdotheyknow.com/request/t...

M Boyce left an annotation ()

The ICO DN for this FOI request is now also with the First-tier Tribunal. I have been left with no choice as it is now almost fifteen months since my appeal EA/2019/0032 was sent to the Tribunal. The PHSO and the ICO have both worked to make sure that the Tribunal do not get to see the relevant legal advice. I will never accept that trying to make sure that the Tribunal has all the relevant information it needs to make a fair and balanced decision is vexatious. I only want fairness and transparency; I'm not asking for the world.

I will make the FOI request to the ICO shortly about receiving anonymised data on those caseworkers who fail to use the 'correct rule' (act contrary to the law), in the words of the FTT, with regard to section 42 of the FOIA.

J Roberts left an annotation ()

Here is a recent 'finely balanced' decision that was allowed by the FTT. It relates to Section 14 and raises further serious questions about the ICO:

http://informationrights.decisions.tribu...

“11. ...At two places in the decision notice (paras 24 and 42), the Commissioner reports that the Council argues that the stress has led to the resignation of a number of clerks. We should record here (and see below) that the Council has subsequently stated in writing that this is not an allegation it has made.”

The DN is not available on the ICO website, unfortunately, but I have requested a copy:

https://www.whatdotheyknow.com/request/d...

Chris Hunter (Account suspended) left an annotation ()

This is apparently the Decision Notice ref: FS50697903 but is is not in any obvious way publicly available

https://www.gov.uk/government/publicatio...

M Boyce left an annotation ()

Yes this is a deeply worrying case.

What if the Tribunal had believed the incorrect allegation made by the ICO of resignations in this 'finely balanced case'?

What if the Tribunal had agreed with the ICO allegation that the complainant was 'passive-aggressive' in this 'finely balanced case'?

What if the Tribunal agrees with the ICO that it is OK for them to ignore the law with regard to section 42 of the FOIA - effectively turning a qualified exemption into an absolute exemption?

As far as the ICO is concerned anyone asking these sort of quite legitimate questions would be branded vexatious, and therefore would be silenced.
The requestor wanted to obtain information to help improve public services. That is what most of us want to do, and it is what I want to do. I'm not the slightest bit interested in annoying anyone, or engaging in any of the other vexatious 'indicators' - my interest is purely and only to obtain information to improve public services. I notice in this Tribunal decision that it states that a request merely has to be 'burdensome' to be vexatious. Of course the burden on an authority is an important consideration, but I believe that THE most important consideration is the JUSTIFICATION for the request. If the request is fully justified, then that should trump the alleged burden, especially when that burden is self-imposed by an authority by not proactively, or even reactively, publishing important information (as in this case), or not adequately answering previous requests, or not considering that answers to previous requests may quite legitimately lead to further requests as part of a reasonable 'drilling-down' investigation.

J Roberts left an annotation ()

Chris,

Thanks for unearthing the DN reference number. I've provided it to the ICO to assist it in its search.

M Boyce,

You are right, it is deeply worrying. The 'finely balanced' outcome might have been different had the appellant not opted for an oral hearing.

M Boyce left an annotation ()

Yes, but there is now not likely to be any oral hearings for a very long time.
It is also the case that many requests are refused as vexatious due to being an alleged 'burden'. But this 'burden' is often completely unavoidable. If a requestor has a number of 'questions' they wish to ask they know that they can only ask for a very small amount of information at any one time, otherwise the request would be refused under section 12 cost exemption. So they may need to make more than one request, but then the authority and the ICO consider this to be vexatious under section 14. You are damned if you do and you are damned if you do.
One of my FOI requests on the subject of PHSO reviews concerned the promised publication of the new Review and Feedback Team (RaFT) guidance last year. The PHSO had been promising to publish this guidance 'soon' for nearly a year. The ICO intervened and made the PHSO finally publish it. Now the ICO are using this request as an example of my being vexatious! Incidentally, the same situation is now happening all over again. The PHSO removed all its detailed RaFT guidance from its website nearly a month ago. They assured me that the new guidance would be published 'soon' - the exact same promise made over a year earlier. Complainants are again left with no detailed guidance on the PHSO review process - and if anyone dares to ask for it they will be shouted down as 'vexatious'. This is a growing and repeated scandal. The PHSO are failing people over and over and over again in clear and plain sight, and the ICO are actively encouraging this by labelling people as 'vexatious' in an attempt to gag them.

J Roberts left an annotation ()

“If a requestor has a number of 'questions' they wish to ask they know that they can only ask for a very small amount of information at any one time, otherwise the request would be refused under section 12 cost exemption. So they may need to make more than one request, but then the authority and the ICO consider this to be vexatious under section 14.”

A DN from the SIC you might be interested in:

“35. In the circumstances, the Commissioner concludes that the Applicant’s request of 10 August 2018 is not identical or substantially similar to the requests of 5 June 2018 or 14 May 2018.

36. The Commissioner considers it reasonable for the Applicant to use the information obtained from the Council to inform further requests, particularly where previous wide-ranging requests have been refused on grounds of costs. This information has justifiably been used by the Applicant to ascertain the nature and extent of the information held by the authority and to inform subsequent requests.”

https://www.itspublicknowledge.info/uplo...

LPP is also considered (para. 153 and others):

“153. The Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information.”

Some examples are included of when the public interest may favour disclosure.

Chris Hunter (Account suspended) left an annotation ()

https://www.itspublicknowledge.info/uplo...

In the above decision, the Commissioner looks to have followed a pattern which is pretty routine whenever a public interest consideration is a factor.

It starts with an acknowledgement that there might be exceptional circumstances that would favour the public interest in disclosure (they are seen to be acting impartially). They follow this by asserting that after careful consideration they are satisfied that none of the circumstances apply. They then bring the reader's attention to previous decisions and that the courts have long recognised the strong public interest in withholding the information, accompanying this with the citing of a High Court case on which they routinely rely as leverage for their argument.

M Boyce left an annotation ()

The ICO's agenda is to convert the Freedom of Information Act (FOIA) into the Refusal of Information Act (ROIA). I firmly believe that the Government deliberately directed the ICO to effectively neuter the FOIA - to use its power to do everything it could to prevent public access to information. The Government grudgingly enacted the FOIA because it could no longer refuse to implement this long overdue piece of legislation. It knew, however, that the ICO, which was set up to administer this legislation, would dance to its tune.
Refusal under section 14 is supposedly a 'high hurdle' to surmount, and yet the ICO surmount it with the facility of a kangaroo jumping over a garden gate.
Section 42 is a qualified exemption, but the ICO always endeavour to make it an absolute exemption. Their clarion call is that under common law legal professional privilege is 'a fundamental right', and therefore cannot be assailed. But Parliament chose to make section 42 qualified, and probably because public authorities have a special duty to act with transparency. The ICO know full well that statute always prevails over common law - and yet they choose to ignore this central legal doctrine. It remains something of a legal irony and a quandary that a 'fundamental right' (LPP) can be disapplied by statute, but that is what Parliament legislated for, and that is the pre-eminent law, whether the ICO like it or not.
The ICO should follow the law, not make it up as they go along.

J Roberts left an annotation ()

You may like to read this FTT decision. The Appellant was the former MP Justine Greening. It concerns EIR.

“33. In our view to aggregate the requests in this case would also not be in accordance with the Commissioner’s guidance at paragraph 25 where the Commissioner urges public authorities, when considering aggregation, ‘to be sensible about this issue and to only use this approach when dealing with multiple requests would cause a real problem...there must be an obvious or clear quality to the unreasonableness’.

36. In addition, in our view not all four requests should be viewed in the same light...

37. Even if aggregation is applied, then taking a restrictive approach to the manifestly unreasonable test would lead, in our view, in this case to some of the information being subject to disclosure...

38. That seems to us to be a sensible way to approach a case even where aggregation applies, where there is a presumption in favour of disclosure: if there are parts of a request, or parts of an aggregated request, which can be disclosed without breaching the ‘manifestly unreasonable’ test, then that is what should happen.”

The part I'm not sure about is the implication in para. 38 that the Tribunal would not find the approach sensible under the FOIA:

“10. '...40. This is evident also in the fact that the EIR contains an express presumption in favour of disclosure, which the FOIA does not...'”

http://informationrights.decisions.tribu...

M Boyce left an annotation ()

Yes it is interesting that the FOIA and the EIR employ quite different terminology and quite different presumptions. The FOIA uses 'vexatious', whereas the EIR uses 'manifestly unreasonable'; the EIR has an explicit presumption in favour of disclosure, whereas the FOIA has no such explicit presumption. This seems unfair, especially given the imprecision in what constitutes environmental information and what does not. In any case, as I've said before, the ICO treats both information regimes with a presumption of refusal and not disclosure - it is embedded in their very DNA.

M Boyce left an annotation ()

Last Tuesday the PHSO published its 'Equality, Diversity and Inclusion Strategy 2020 -2024.' All good and proper, but it clearly shows that the PHSO does fully expect still to be around in four years time. The PHSO has been 'calling', albeit with an increasingly muted voice, for itself to be replaced by a fairer Public Service Ombudsman (PSO). Will the PHSO raise the issue of the PSO being put on the back burner now for six years so far, or will it ignore this completely unacceptable delay? I spoke to PACAC today to find out when the 2020 annual scrutiny shindig would be happening. I was told it would likely not be before June at the earliest - obviously done remotely.

M Boyce left an annotation ()

The extremely worrying thing about the above decision, which on the whole appears comprehensive and well argued, is what Judge Holmes states in paragraph 103:

'....It would have been open to ANY such party [an enquiring individual] to seek judicial review...'

This sadly shows that some judges are out of touch with reality. Most people could not afford, and would never dare risk, applying for judicial review. The bill could easily reach a six figure sum. The FOIA exists to allow ORDINARY people to obtain information from public authorities - the clue is partly in the name - FREE -dom of Information Act. The judge has refused the above request because he believes, amongst other things, that everyone can just apply for judicial review at the drop of a hat. With that 'reasoning' section 42 of the FOIA slips dangerously towards becoming a de facto absolute exemption by virtue that an alternative legal remedy is 'readily' and 'easily' 'open to any such party'. If only it was.

Jason left an annotation ()

Totally agree, M Boyce. It's a chequebook justice system we have sadly, and most of use don't have big chequebooks.

I've also found that, notwithstanding the above, solicitors with legal aid contracts just are not interested in carrying the risk and working for peanuts.

M Boyce left an annotation ()

Thanks Jason.

I totally agree with what you say too.

I should have an update on my case shortly.

Another couple of issues with the above recent tribunal decision. Firstly, the ICO said in paragraph 45 that legal advice was just 'guidance' - implying that it is unimportant/irrelevant. Then why do authorities waste public money on legal advice if they regard it as unimportant/irrelevant, and then just ignore it? If they are treating it so glibly they are guilty of profound misconduct/misuse of public money.

Secondly, in paragraph 95 of the above decision in relation to the well known 'Mersey Tunnel Users' tribunal case it states that:

'...disclosure [of the legal advice] was the ONLY way for anyone to understand the basis of the authority's actions.'

Funny that, given that later in the above recent decision the judge then completely contradicts this by saying that anyone can just apply for judicial review. Why couldn't anyone just apply for judicial review in the Mersey Tunnel Users case? This was never suggested in that case, and probably because it is simply not a realistic option, and the fact that a possible JR at a later date should never be regarded as a bar to disclosure in section 42 of the FOIA - even the ICO publicly state this in their guidance on section 42 FOIA!
The PHSO and the ICO use the same arguments in my case - the legal advice is just advice - nothing more than a casual conversation, albeit a hugely expensive one. They also state that anyone can just pop round to their lawyer (because we have all got one of them in our back pocket) to apply for judicial review. Perhaps we could if we weren't paying a fortune in taxes to pay for a PHSO that regards its legal advice as nothing more than a casual chat, and its ability to use unlimited tax-payer money to employ the most expensive and showy lawyers in the land to defeat anyone who had temerity or stupidity to apply for JR - and in any case in law, it is not what you know that matters, but simply who you know: the establishment always looks after the establishment.

J Roberts left an annotation ()

"This sadly shows that some judges are out of touch with reality. Most people could not afford, and would never dare risk, applying for judicial review. The bill could easily reach a six figure sum."

“14. As noted by the Clementi review, ‘high quality legal services are important to society, but of limited value if available only to the very rich or those paid for by the state’.”

https://assets.publishing.service.gov.uk...

M Boyce left an annotation ()

How true J Roberts.

In the above Tribunal case the judge says that anyone can just waltz down to their lawyer and get a judicial review, and that is why the legal advice should not be disclosed under the FOIA. Most people would profoundly disagree.
In my case the PHSO told me and the Tribunal that if I wanted to find out if their review process was legal or not I should go and get my own legal advice because their advice was theirs and theirs alone - even though it was paid for by me and every other taxpayer. They knew full well that I could never afford to get legal advice because my case was about tax credits for the working poor, and that included myself. They also knew that legal aid had been decimated under the ConDem Government. Oh how they laughed when they told the Tribunal to dismiss my case because I was at liberty to get my own legal advice. They knew this was utter tosh. I did previously apply for judicial review, but I was able to get legal aid for the application process - several hundred pounds. Little did I know at the time that this legal aid did NOT extend to costs if I lost. My case was refused, but the PHSO incompetently failed to provide a schedule of costs to the judge, so I didn't have to pay. If I had had to pay I would have been paying it off for the rest of my life.
So here we have the PHSO, and then some judges just telling people to get their own legal advice and judicial review. The PHSO knew I could never afford it, and the Tribunal judge in the above case just didn't understand that we are not all paid a fortune - 'judicial review is open to anyone!' It most certainly is not, and that is why the FOIA is the ONLY option for gaining information for most people.

J Roberts left an annotation ()

Paragraph 14 of the Clementi review was clearly not at the forefront of the judge's mind.

I have previously mentioned on WDTK the two cases brought by Morris against the PHSO. In one of them the PHSO asked for costs of £80,654.35:

"73. MR JUSTICE JAY: How much do you seek?

74. MR MAURICI: My Lord, the schedule, the total figure is £80,654.35."

http://www.bailii.org/ew/cases/EWHC/Admi...

'judicial review is open to anyone!'

Like the Ritz Hotel.

M Boyce left an annotation ()

Yes that figure concretely illustrates exactly why judicial review, or obtaining legal advice, is demonstrably NOT available to everyone, or in indeed most people. That is why section 42 of the FOIA and the refusal to disclose legal advice should NEVER occur because everyone can supposedly obtain an alternative legal remedy. It also raises the question of why the more than half a dozen Tribunal cases that have favoured disclosure under section 42 actually came to that conclusion. They clearly did not regard section 42 as a de facto absolute exemption - by virtue of the supposed ready availability of alternative legal remedy.
Most people do not obtain legal advice or apply for judicial review simply and almost entirely because of the serious costs involved. The FOIA SHOULD allow ordinary people access to information, but this basic right, and something that we have all paid for, is being wrongly denied to people by some judges.

Jason left an annotation ()

Any further updates, M Boyce?

M Boyce left an annotation ()

Hi Jason.

With regards to the most substantive case, EA/2019/0032 - the sham review process - the PHSO are still dragging this out. It is now around 18 months since the case went to Tribunal and still the PHSO has not sent the Tribunal all, or perhaps not even any, of the relevant withheld legal advice. There have been well over a dozen Case Management Directions issued by the Tribunal so far, and the way the PHSO are behaving there is likely to be many more.

The Tribunal recently reiterated that delay of justice is denial of justice, and the PHSO are happily embracing this.

Jason left an annotation ()

That is truly egregious, M Boyce. The lengths that the ordinary person has to go through to get a modicum of justice in this country really boggles the mind.

I also think that it is reasonable to infer that, based on what you have said, the PHSO are looking to hide something pretty damning.

I can only commend you again for all your valiant determination, and for so bravely taking on this rotten bunch.

M Boyce left an annotation ()

Thanks Jason

It's not brave, not really, though it is very stressful; it's just an attempt to get justice and to try to make a highly deficient system a little bit better and a little bit fairer.

All over the world many people are trying to make things better for themselves and others, and it is ALWAYS an uphill struggle against the establishment that wants to keep ordinary decent people down-trodden and acquiescent to authority and unjustified privilege.

All lives matter, and all people matter - not just the rich and powerful.

Jason left an annotation ()

You're being a tad modest there me thinks. You must have known the likes of the PHSO would make things as stressful and difficult as possible for you, but you ploughed on regardless. You also issued JR proceedings at one point, which was immensely brave.

I agree wholeheartedly with your comments regarding unethical and high-handed authorities etc.

We do really need more people like you in this world.

M Boyce left an annotation ()

Thanks my friend. It is nice to have supportive comments.

I'll keep you updated on what happens.

M Boyce left an annotation ()

A quick update on Tribunal appeal EA/2019/0032.

The Judge decided around three months ago that this case could not proceed without an oral hearing. The ICO declined to take part and the PHSO have now twice failed to inform the Tribunal whether they will take part or not.

The Tribunal have also asked the PHSO for a number of pieces of clarificatory information/documents. These have not been forthcoming from the Ombudsman.

I have no idea what is going to happen next, but what I am certain about is that both the ICO and the PHSO have always regarded this case as 'in the bag'. Why else would they have been so disengaged with the whole process ?In fact, their only real engagement has been to procrastinate and to frustrate the case for nearly nineteen months so far.

Both the PHSO and the ICO must have taken huge succor
from my Appeal EA/2019/0334 where Judge Shanks declared that he did not need to see crucial evidence from myself. Justice cannot be done, and importantly, seen to be done, if evidence is not provided when requested, and neither can it be done when evidence is ignored.

It is not hard to see where the PHSO and the ICO's confidence in their assured success and good old 'British justice' comes from.

Jason left an annotation ()

Thanks for the update, M Boyce.

This sounds a bit concerning. Either they are complacent, or they are looking to hide as much as they can, which is reflected in the fact that they are not disclosing documents etc. Perhaps a combination of both. Can you not get an ‘unless order’, or something along those lines?

I have very little faith in the justice system in this country. For the most part, the only people that benefit from litigation are solicitors and barristers who generally get paid a fortune. As you know, the justice system clearly favours the rich and powerful too.

M Boyce left an annotation ()

Yes Jason, it is definitely a combination of both.

I think instead of an 'unless order', a 'useless order' or a 'couldn't care less order' might be more appropriate.

J Roberts left an annotation ()

The latest ICO annual report was published a few days ago. From page 45:

'Openness by Design also commits us to making the case for legislative reform to improve transparency in the public sector, as set out in our Outsourcing Oversight? report published last year. Our focus here will be about building a debate about the importance of openness and transparency as a fundamental part of a healthy, functioning democracy.'

https://ico.org.uk/media/about-the-ico/d...

Indeed!

M Boyce left an annotation ()

Openness and transparency from either the PHSO or the ICO?

Both organizations have never been less open and less transparent and all this does is undermine the rather fragile liberal democracy that we live in.

J Roberts left an annotation ()

Dr Bruce Newsome writes:

'According to heart-breaking testimonials, most complainants are treated by PHSO staff as time-wasters, liars, idiots, fantasists, egotists, and objects of ridicule. The victims have nowhere else to go. Parliament’s Select Committee on Public Administration has complained since 2015 that the PHSO is unaccountable to Parliament except through annual reports. The PHSO’s only practical accountability is to the executive, which controls its funding and appoints its person, but every executive has said that the PHSO is “independent.” Its own solution to criticism is to demand more powers.'

https://thecritic.co.uk/democracys-accou...

M Boyce left an annotation ()

Yes J Roberts it makes very depressing reading.

John C, if you read this I would like to help if I could, but I hope you understand that I am wary of divulging my email to people via the internet.

Obviously I don't know your case, but if you are thinking of going down the PHSO route I would just advise you to think very carefully about it. You will need the patience of a saint and the constitution of an ox, because they will do anything and everything to grind you down.

It does not matter whether your grievance is genuine, and I don't doubt that it is, or how eloquently you make your case, the establishment will deny everything.

Persistence in the fight for justice should be a virtue, but the establishment will turn that virtue into an accusation of vexatious behaviour.

If you are prepared for a very long and stressful battle, then go for it. If not, don't.

Jason left an annotation ()

That article was a very interesting read, J Roberts. This paragraph was also quite pertinent:

"Then there are the QUANGOs you hear even less about despite their impressive powers. Take the Information Commissioner and its Office (ICO), which are regulators, investigators, and enforcers of criminal laws relating to data protection. Formally, they are accountable to the Select Committee on Digital, Culture, Media, and Sport, but the DCMC is hardly a paragon of virtue itself, and has taken little interest. "

This was very good advice, M Boyce. The more I learn about the PHSO, the more I form the view that they are an unaccountable whitewashing machine.

To add insult to injury, they tend to treat the genuinely aggrieved with disdain and contempt in my opinion. Just recently, they denied receiving an important e-mail from me (requesting a review from the caseworker as she was obliged to carry out insofar as I can remember), which is very curious because they certainly received all other e-mails from me over the course of many years. It took a letter before claim for them to reverse their position, whilst allegedly a "technical error", which is probably a euphemism for "we just couldn't be asked to respond". Incidentally, I noted a very similar issue posted by a Google reviewer in respect to exactly the same caseworker. Mere coincidence?

J Roberts left an annotation ()

Jason,

It is indeed an interesting article. You mentioned the ICO as well as the PHSO in your comment. To complain about the former QUANGO you must contact the latter QUANGO. In 2018/19 not a single complaint made against the ICO to the PHSO was accepted for investigation:

https://www.whatdotheyknow.com/request/c...

The actual PHSO document from which I extracted the figures appears to have been taken down from the PHSO website because of a data breach, but D Moore has requested the figures:

https://www.whatdotheyknow.com/request/s...

For anyone considering legal action:

https://phsothetruestory.com/going-to-co...

Judicial Review:

https://phsothetruestory.com/judicial-re...

Potential costs:

"73. MR JUSTICE JAY: How much do you seek?

74. MR MAURICI: My Lord, the schedule, the total figure is £80,654.35."

[2014] EWHC 4364 (Admin)

http://www.bailii.org/ew/cases/EWHC/Admi...

(and getting legal aid to bring a JR does not rule out the possibility of your being pursued for costs)

J Roberts left an annotation ()

Frompage 44 of the annual report:

'We received and responded to 17 pre-action letters in 2019-20. Ten did not convert into legal proceedings. There were a total of 16 new applications for judicial review of our decisions. Two claims were withdrawn and eight claims were refused permission to go forward to a full hearing. Three of those decisions were appealed but were not successful. Six of those claims have been recently issued and are pending.'

'In 2019-20, we carried out 942 reviews of our decisions and upheld 120 of them. In 2018-19, we completed 1,199 reviews of our decisions and upheld 43 of them.'

https://www.ombudsman.org.uk/sites/defau...

Jason left an annotation ()

That is very interesting indeed, but also somewhat unsurprising, J Roberts.

Based on my experience, the PHSO purported that it only looks at where the ICO didn’t follow the procedure (e.g. not completed an assessment or not followed the complaints procedure). This, however, is not the impression given by the ICO:

“If, having exhausted our case review and service complaints procedure, you remain dissatisfied about any aspect of any service you have received from us or think we have not acted properly or fairly, you can take the matter to the Parliamentary and Health Service Ombudsman.”

https://ico.org.uk/make-a-complaint/comp...

Yep, these QUANGOs certainly close ranks.

As for avoiding the PHSO altogether and pursuing a clinical negligence claim for example, the risk of costs is also astronomical:

“NAO 2017 Report found that in 61% of cases (involving the NHS) the Claimant’s legal costs of pursuing a claim is greater than the value of the damages the Claimant recovers.“

https://www.mills-reeve.com/insights/pub...

Another demonstration of how access to justice in this country is appalling, especially if you are not rich and/or powerful.

christina evans left an annotation ()

I made a complaint to phso. Despite extensive evidence and another organization saying I should go to the police my complaint was not upheld. Subsequently because the public body got away with what they did now any engagement with them is bias. This despite the fact the one organization Cygnet Coventry is under special measures and the innacurate misleading information passed on to St Georges hospital Stafford by Cygnet still been used. I have requested a review because of the bias. Also because if it wasnt because of us our relative would still not be well and would not have their liberty.

M Boyce left an annotation ()

Good luck with your request for a review Christina. Stick with it and fight for the justice you deserve.

Today I contacted the FTT to ask why they had published so few decisions over the last four months. They informed me that there were 105 decisions that had been 'disposed of' -presumably made - over the last four months. They have promised to upload the remaining 70-80 or so cases to the website over the next few weeks. Some of these will be PHSO V ICO cases.

M Boyce left an annotation ()

Another quick update on appeal EA/2019/0332 - legal advice about the PHSO review process.

The Tribunal judge stated that the case was not suitable for a paper hearing and that there should be an oral hearing.

Both the PHSO and the ICO have now confirmed that they do not want to attend any hearing.

Neither the PHSO or the ICO want to be asked any difficult and illuminating questions from the judge.

The Upper Tribunal has today asked for the papers in both Appeals EA/2019/0032 and EA/2019/0334.

So the PHSO and the ICO don't want the First-tier Tribunal to be able to ask any probing questions, and Judge Shanks in appeal EA/2019/0334 ignored the most important evidence that I presented.

Justice can't be done if judges don't have, and don't consider, the full evidence from which to make a fair decision.

J E Garner left an annotation ()

It is par for the course for many Judges to adopt a Nelsonian approach to written evidence, in order that us pond life do not succeed. Well done you for your tenacity. As for the ICO? Just check out their reviews on Trust Pilot!

M Boyce left an annotation ()

Thanks GE Garner

We are supposed to have the best justice system in the world, but when judges are turning a blind eye to evidence sent from the little people then they should be sacked.

The ICO are a government quango that is only interested in shielding the establishment from scrutiny and criticism, and most people's dissatisfaction with this organization proves this.

J Roberts left an annotation ()

The link I provided to a SIC decision on 5/4/20 appears to be broken. Here is the content of the paragraph I referred to dealing with LPP:

'153. The Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information. For example, disclosure may be appropriate where:

· the privileged material discloses wrongdoing by or within an authority

· the material discloses a misrepresentation to the public of advice received

· the material discloses an apparently irresponsible and wilful disregard of advice

· a large number of people are affected by the advice

· the passage of time is so great that disclosure cannot cause harm.'

Maybe this link will work:

http://www.itspublicknowledge.info/Appli...

Decision Notice 039/2020
Public authority: Glasgow City Council

M Boyce left an annotation ()

The factors favouring disclosure of the legal advice about the PHSO review process are compelling:

Large of number of people potentially affected.

Large amount of money involved.

The legal advice is now around 4 years old.

This legal advice may never have been followed or relied upon.

Contradictory information supplied to the public: PHSOthefacts told the review process is legally allowed for; the PHSO Board Minutes say the review process is not legally allowed for.

A judge has recently described the review process as in a muddle and needs sorting out and the legislation is unclear.

He also states that the reasons for disclosure are weighty.

An important consideration is what would be the benefit of disclosing this legal advice?

It is not just a question of transparency; far more importantly it is a matter of empowering complainants with knowledge: if the review process is not legally allowed for then no-one can be forced to use it, instead of a judicial review. It is simply a matter of giving people a choice or denying people a choice.

This is about holding the PHSO to account AND even more importantly, giving information to people for them to make INFORMED choices.

How can any of this not be in the overwhelming public interest?

M Boyce left an annotation ()

Another very important consideration is that the PHSO know full well that there is a serious problem with the legal ambiguity/uncertainty/peril around their review process, and now a judge has stated this. So what do they do about this? Yes, that's right, absolutely nothing.

Over the past few years Rob Behrens has gone on record many times to call for reform of PHSO legislation. He has repeatedly called for 'own-initiative powers', for the removal of the MP filter, and other reforms to the 50 year old legislation.

So why has there not been a single mention - not a murmur - from Mr Behrens about the PHSO review process, which is causing so much trouble?

The reason must be that the process greatly benefits the Ombudsman by putting complainants in a dire legal no-man's land.

Why else would the Ombudsman have never even mentioned this much needed reform? Why else would PACAC never mention this much needed reform and tell me directly that they would never ever do so?

If it smells bad, it is because it is bad.

M Boyce left an annotation ()

29. The PHSO is part of the legal and judicial landscape of the UK and public
confidence in the system is of primary importance. It is vital that the Ombudsman,
as a public official, is seen to act with honesty and integrity. Any suggestion that he
might act unlawfully is harmful to his office and the legal and judicial system. It
would not be in the public interest to withhold information that might reveal
unlawful conduct by a public official and to allow that conduct to continue. If the
information is released it will hopefully show that the Ombudsman has behaved
lawfully and will restore public confidence.

The above is from a First-tier Tribunal decision that should be published on the GRC website by this coming Wednesday. It concerns the PHSO 'quashing' of reports. What is says is vitally important. The most important sentence is perhaps where it says:

'It would not be in the public interest to withold information that might reveal unlawful conduct by a public official and to allow that conduct to continue.'

In relation to the PHSO review process the PHSO themselves openly state in the December 2017 Board Minutes that their review process is unlawful.

How can it therefore be in the public interest for the legal advice around this unlawful behaviour to be witheld and to allow this unlawful conduct to continue?

J Roberts left an annotation ()

'29. The PHSO is part of the legal and judicial landscape of the UK and public confidence in the system is of primary importance. It is vital that the Ombudsman, as a public official, is seen to act with honesty and integrity. Any suggestion that he might act unlawfully is harmful to his office and the legal and judicial system.'

I don't think there is much public confidence in the PHSO. The number of complaints on Trustpilot keeps increasing:

https://www.trustpilot.com/review/www.om...

And disappointed PHSO service users frequently talk of the PHSO's lack of accountability and of their evidence being ignored:

https://phsothetruestory.com/

https://thecritic.co.uk/democracys-accou...

https://www.whatdotheyknow.com/request/m...

The 'Miller' appeal concerned two GPs, but the 'not written down, it didn't happen' bit may explain much of the misery experienced by numerous PHSO victims: missing records.

'59. It is also conceded that the ombudsman’s evidence from one of her most experienced Directors, Mr Kellett, contained an unfortunate use of language when he said “if it is not written down it didn’t happen unless there is other corroborating evidence”. I do not accept that this was an erroneous use of language: it reflected the practice of and language used by officials in the documents to which this court was taken ie unless the doctor had noted something in the clinical records, poor practice is assumed. Aside from reinforcing an impression of pre-determination, that is an inappropriate way to conduct an investigation'.

https://www.bailii.org/cgi-bin/format.cg...

Staying with the Miller judgment, I detect less emphasis on the strength of the relationship between the Ombudsman and the 'legal and judicial system' in it:

'55. I would also emphasise that it is important that this court does not import into the informal, non-judicial process of administrative and complaints adjudicators like the ombudsman the procedures of courts and tribunals. The adjudication process is an informal resolution of a complaint or problem where other remedies are not reasonably available or appropriate. The procedure is a matter entirely within the gift of the ombudsman provided that her decision making process is lawful, rational and reasonable.'

Using judicial review to prove that the Ombudsman acted unlawfully requires very deep pockets.

Figures have just been released revealing that NHS compensation for medical negligence amounted to £1.4 billion last year:

https://www.dailymail.co.uk/news/article...

“Ministers are planning a so-called ‘fixed costs’ plan to cap legal fees in cases where damages are less than £25,000 and Mr Dilks said: ‘We hope a way can be found to significantly reduce the cost to the public purse at no detriment to justice.’”

The PHSO is free to use but does it contributes to justice?

M Boyce left an annotation ()

No the PHSO does not contribute to justice. The only thing it seems to contribute to is the prolongation of misery and futility when someone takes a complaint to them.

If it acts within the law, then sadly there is nothing that can be done about this misery and futility. But if it acts outside of the law then something should be done about this.

Jason left an annotation ()

Indeed, Boyce.

I am very concerned to learn that Judge Shanks has ignored the most important evidence that you presented. Will you get another opportunity here, and what evidence was it?

M Boyce left an annotation ()

The evidence that Judge Shanks ignored (not overlooked) was my entire PHSO review. This 8 page document is central to both my appeals because they are about the review process in general, and particularly the legality of it.
The Judge said the review document was not important, but how could he possibly know that without seeing it? After I appealed his decision he then decided to obtain a copy of the document, and very unsurprisingly found he was 'right' all along. Well he would say that wouldn't he. This is not justice, it is a joke - except the Judge is the only one laughing.
Justice not only has to be done, but it has to be seen to be done. Ignoring evidence ticks neither of these boxes.

The Judge also at the very least overlooked a great deal of other evidence too.

My appeal to the Upper Tribunal has been acknowledged and that Tribunal has asked for all the papers from the two related First-tier Tribunal appeals to be sent to it.

Jason left an annotation ()

I see.

Yes, it is very concerning that he failed to even read the document, and then maintained his view to save face no doubt. Unfortunately, based on both our experiences, there seem to be many judges that are just not up for the job, as if access to justice in this country wasn’t bad enough already.

Have you seen this news?

https://www.legalcheek.com/2020/07/staff...

There may be a principle there that also applies to PHSO reviews. It is also good to see someone like that taking on the establishment.

Jason left an annotation ()

J Roberts left an annotation ()

M Boyce,

You are certainly shining a stark light on how our judicial system works. Am I right to say that you are now waiting to find out whether permission to appeal will be granted? I hope your're in the 15!

'The AAC received 59 applications for permission to appeal in 2019/20 relating to the ICO, of which 15 were granted.'

https://www.whatdotheyknow.com/request/p...

Dr Bruce Newsome's criticism is as sharp as any surgeon's scalpel in his latest article on the PHSO entitled 'Healthcare Needs an Ombudsman':

https://thecritic.co.uk/healthcare-needs...

'Your final champion is supposed to be the Parliamentary & Health Services Ombudsman (PHSO), but this is mistermed in so many ways. It is unaccountable to Parliament, except to submit annual reports. It is unaccountable to the Prime Minister’s Office, except through long-term funding cycles and appointments. It can choose for itself which complaints to investigate or reject. No parliamentary committee or politician can overrule it.'

Jason,

I made a request related to the judgment:

https://www.whatdotheyknow.com/request/e...

M Boyce left an annotation ()

Thanks Jason

Yes I am now waiting to hear from the Upper Tribunal.

I wasn't familiar with the Michael Connor Judgement, and it makes very interesting, and not entirely unrelated, reading.

From my initial understanding the Judgement says that ESA Mandatory Reconsideration (MR) is a 'disproportionate interference with the right of access to court.'

Mandatory Reconsideration is somewhat analogous to a PHSO review: both are internal review processes. Both can take a long time, and both can interfere with the right of access to court. The major difference is, however, that MR is provided for by statute, whereas the PHSO review process is not. The PHSO review process does not just interfere with access to justice, it acts to derail it by virtue that it is not legal, and with all the legal consequences that follow.

I'll certainly scrutinise the Michael Connor Judgement more closely over the next few days.

I am also presently appealing a Universal Credit decision on a matter not dissimilar to the Michael Connor Judgement by the First-tier Tribunal and I fully expect this to also go to the Upper Tribunal.

I've been down this road before and won another case with the UTT. That case was very protracted and involved numerous judges, each one successively 'erring in law'.

I've also had extensive experience of challenging the UK Government's EU law breaking with the help of the European Parliament and the European Commission. Sadly the UK Government will be free to act however it wants by the end of the year. But that's a different matter and a different story from a different time.

Jason left an annotation ()

J Roberts,

That is certainly another interesting article. This paragraph was pretty apt:

“Since its employees are not civil servants, we have no idea how they are qualified. They often turnover quicker than the cases they’re handling. One complainant told me that a PHSO report on his complaint “seemed to have been written by a 12 year old.””

Alarming, but somewhat unsurprising, to also note that over the past year the PHSO only upheld or partially upheld 0.6 percent of the enquiries (complaints) it received:

“Remember that 96% of all enquiries did not even get registered as complaints. Thus, the true rate of uninvestigated enquiries in 2019-2020 is more than 99 percent. A different measure confirms this scale: the number of investigations ending in a partial or full uphold is just 650, or 0.6 percent of enquiries received that year.”

I also suspect those were cases where the organisation in question made concessions, which does happen very rarely.

Regarding the Michael Connor case, it seems you’re really on the ball.

M Boyce,

Yes, indeed. I agree that the situation with the PHSO is worse in comparison, particularly in the respects you have alluded to.

Let us know how you get on with your Universal Credit appeal. It is interesting to learn that you’ve been fighting many other serious legal battles too, all whist tackling the PHSO and the ICO matters, which is really impressive. Kudos to you, and more power to your elbow!

J Roberts left an annotation ()

Dr Newsome wrote an article a few years ago concerning the PHSO about which another requester sought information. The PHSO provided copies of emails created by his article:

https://www.whatdotheyknow.com/request/y...

M Boyce left an annotation ()

http://informationrights.decisions.tribu...

I wasn't aware of the above FTT decision until now, but it has interesting parallels to my case EA/2019/0032.

It is also about the PHSO review process.

The PHSO did provide the Appellant with some legal briefing notes on the review process. They have refused to do so under section 42 FOIA - legal professional privilege in my case.

The Appellant above believed that the PHSO held more information, but was concealing it. In my case the PHSO has been forced to provide more and more information to the Tribunal over a period of a year or so. I fully suspect they are concealing much more.

The above FTT case involved a hearing where the PHSO were represented by legal counsel. In my case the PHSO are declining to attend any oral hearing, which has now been tentatively listed for late October this year. The ICO have also declined to attend. This means that I am the only party willing to attend. The Tribunal has stated that my case cannot be heard without an oral hearing, but I now need to find out exactly why this is the case: is it my fault the case has to have an oral hearing, or is the fault with the PHSO and/or the ICO?

To my knowledge my case appears quite unique in that the Tribunal are insisting on an oral hearing which the First Respondent (ICO) and the Second Respondent (PHSO) are not wanting to attend.

J Roberts left an annotation ()

A familiar story, unfortunately:

'18. As to whether she told the Appellant, in response to requests for further documentation, "You can't have that" during that conversation she was certain that if she did say that (which she specifically could not remember saying) it would have been in the context of the fact that the PHSO had no further documents to disclose. She states that she could only assume that the Appellant misinterpreted her meaning if he thought there were other documents that she was refusing to provide.'

21. The Tribunal concludes that Ms Beazley's account is straightforward, cogent and credible.'

I suppose the moral of the story is to record everything, but even then tribunals seem reluctant to admit covertly recorded evidence.

If the Judge has said there must be an oral hearing, then it seems that you cannot be hit with any costs.

FTT powers:

'3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal—

(a) to attend at any place for the purpose of giving evidence;
(b) otherwise to make themselves available to give evidence;
(c) to swear an oath in connection with the giving of evidence;
(d) to give evidence as a witness
(e) to produce a document; or
(f) to facilitate the inspection of a document or any other thing (including any premises).'

https://assets.publishing.service.gov.uk...

Have you seen this FTT decision? (ICO rubber stamp not working!)

'77. Whilst these communications have been annotated “legal advice provided”, the Tribunal cannot see how they can be so characterised... This was not legal advice, but rather practical advice

88. A central feature of this appeal, it seems to us, is that there has been much weight afforded to the fact that much of the material involves communications to and from Sumera Shabir, who is a solicitor with RMBC. To that extent RMBC,and to some extent the ICO, have approached communications to and from her as being legally privileged, almost by virtue of that very fact.'

https://www.bailii.org/uk/cases/UKFTT/GR...

M Boyce left an annotation ()

To my understanding a party can only be hit with costs if they have behaved unreasonably. I don't believe that I have behaved unreasonably. I have always responded to the judges directions in full and on time. This is not the case with the PHSO. If any costs are imposed it should be against them.

The FTT can summons any party to appear at a hearing, but will it and what might be achieved by this? I have said I am willing to appear, but both the PHSO and the ICO have stated that they do not want to appear and have nothing further they could add. So even if they were forced to appear they would likely just play the 'no comment' card - since THEY consider the case is in the bag anyway.

When is legal advice legal advice, and when is it advice given by someone who is legally qualified? This is indeed more than just a question of semantics. Certainly the PHSO regard any and all information they have sent to the Tribunal as 'closed' simply by virtue that it has been provided by someone who is legally qualified. This is not what should happen, and it is not fair.

I need to find out as soon as possible why my appeal cannot proceed without an oral hearing, because that way I'll have a better idea of what is going on.

J E Garner left an annotation ()

Legal advice is only ever between the Client and their Solicitor or Counsel. Once the advice has been shared with a third party, or somebody else has been copied into the advice via an email for example, then it is no longer deemed "privileged".

As for "unreasonable" of course this is at the Judge's discretion, mainly what side of the bed he gets out of that morning!

M Boyce left an annotation ()

If costs were imposed on appellants simply because a judge had got out of the wrong side of the bed then there would be countless examples of such cost orders. Cost orders from the FTT appear to be rare, and rightly so because if they weren't people simply wouldn't risk taking a case to the Tribunal.

J E Garner left an annotation ()

Costs are meant to be rare in all Tribunals, but that doesn't stop some Judges awarding punitive costs because they can, on the flimsiest of evidence, the only effective remedy after this is to Appeal, and get another lot. I am of course referring to Employment Tribunals, hopefully FTT are fairer!

Jason left an annotation ()

Indeed, M Boyce.

It sounds like the PHSO have cynically sought to delay and frustrate the litigation process, unreasonably refused to attend an oral hearing, and failed to disclose documents that are pertinent, albeit to the FTT only. That is unreasonable conduct based on any right-minded assessment.

J Roberts, the article written by Dr Newsome lost me at the moment I noted it was published on a Tory website. I am no fan of the Tories, not least because of what they have done to the justice system e.g. unlawfully introducing Employment Tribunal fees and decimating the legal aid system.

Jason left an annotation ()

J E Garner, yes, I would say that is correct. I have had a lot of experience in Employment Tribunals. In one case, a very unprofessional judge tried to make me pay a Deposit Order without any written reasons, all whist failing to take into account the fact that I couldn't afford it. The reason he did so was plain to me - it was simply because I had brought other cases, which is plainly wrong.

Consequently, my case was struck out because of my financial circumstances, and I was unreasonably denied access to justice.

M Boyce left an annotation ()

I've never had any experience of an Employment Tribunal, but the concept of the deposit order does sound very unfair.

I'm sorry to hear about your experience Jason. Have you had a similar experience JE Garner?

I can only speak from experience of the Information Rights Tribunal and the Social Security Tribunal. The latter cannot impose costs to my knowledge. I am not aware of any case where the Information Rights Tribunal has imposed costs on an appellant. I would be interested to hear if this has happened.

Jason left an annotation ()

Thanks M Boyce. Yes, it was profoundly unfair, and one of many egregious experiences I had at the Employment Tribunal. There are unfortunately many serious problems with the so-called justice system in this country as you know.

J Roberts left an annotation ()

Jason,

Dr Newsome used to work for the RAND Corporation:

https://en.wikipedia.org/wiki/RAND_Corpo...

M Boyce,

Appellants pursued for costs:

https://www.whatdotheyknow.com/request/a...

Two recent decisions. First, an example of a judge's directions working (the appeal was in fact dismissed but...)

'15. In response to these directions, by letter dated 14 February 2020, the CMC has chosen to release all the requested information it holds to the Appellant without giving reasons for its change of mind, and has not produced a witness statement (but has asked for that direction to now be varied)The only information withheld is personal information in the form of some of the officials who have authored or contributed to reports.'

http://informationrights.decisions.tribu...

I have made a request to the ICO related to DN that was appealed:

https://www.whatdotheyknow.com/request/u...

Second, a problem for appellants.

'11. In her Response [40], the Commissioner, relying on Oates v Information Commissioner and Architects Registration Board, argued that she was entitled to take a denial by a public authority that it did not hold information at face value unless there was some reason not to do so (for example, an indication that shewas being misled).'

http://informationrights.decisions.tribu...

J E Garner left an annotation ()

M. Boyce and Jason
The original concept of an ET was that an employee could bring a grievance against an employer, stating their case before a Judge, however this has morphed into a one sided area, where only those with the means to afford an equivalent lawyer, or those represented by their Union or "body" can hope to achieve redress. Add to this the fact that local ET Judges are often known to the Employer, as was observed a ET Court Observer, who saw an ET Judge greet the Respondent Employer by his first name, needless to say the employee lost, and even though the Appeal was heard some distance away, he lost that too. As for "overlooking" evidence and blatant perjury, yes I am aware of this, to enable the High Profile Respondent to win the case! It is of note that the unprecedented Judgment by ET Judge Ord, in the Mr Ben Plaistow v Ministry of Justice (Prison Service) whereby the Judge accuses the MoJ of corrupting and the forgery of evidence, although widely reported b the press at the time (June 2019) not one Journalist appears to have followed up the outcome, whereby the MoJ were supposed to have conducted an internal Review? This is astonishing. See my FOI to MoJ for details of this "Review" which I am currently awaiting a response, due 1 September!

J E Garner left an annotation ()

J. Roberts re ICO
"argued that she was entitled to take a denial by a public authority that it did not hold information at face value unless there was some reason not to do so (for example, an indication that she was being misled).'"
My experience of the ICO, is that even when they were presented with irrefutable written evidence of the forgery of a judicial document to prevent a Subject Access Request, she took the "Nelsonian" approach....ICO independent? I don't think so. It is of great concern to me that all of these so called "independent regulators" who are meant to rectify the wrong doing of Public Bodies, are an illusion created to make us think we can achieve justice, oh and of course, to waste our time!

M Boyce left an annotation ()

Thanks for the further info on Employment Tribunals JE Garner. It's good to get an idea of how other tribunals work. Good luck with your imminent 'review'.

J Roberts thanks for the link to the Dr Reuben Kirkham case (EA/2018/0036). Although the 'unreasonable bar' seems quite high, it is very poorly circumscribed. Do you know whether the invitation for a costs order was followed-up? Any other cases where the FTT has imposed or invited the ICO to impose costs on an appellant? I know the ICO were, as usual, not forthcoming with your enquiries on this issue.

M Boyce left an annotation ()

It does appear that the Kirkham case has the distinction of being the only appeal where the FTT has asked the ICO to impose costs on the appellant.

It is possible of course to check every case listed on the Information Rights website - to date 2601 cases (although this number should increase as a number of cases from earlier this year have still not been uploaded). Two thousand six hundred cases taking roughly 30 seconds to search each one would take around 20 hours.

J Roberts left an annotation ()

J E Garner

'It is of great concern to me that all of these so called "independent regulators" who are meant to rectify the wrong doing of Public Bodies, are an illusion created to make us think we can achieve justice, oh and of course, to waste our time!'

A very disturbing thought indeed: so many paid handsomely to conceal the truth. I would like to think that you are wrong, but...

M Boyce,

I have no information on actual costs being claimed by the Commissioner. I presume that anyone hit with costs would appeal to the UT. I have yet to come across a decision on the matter.

Recent information rights appeal related to an ET case (just to show the similar nature of case management powers):

'43. Like this Tribunal, the Employment Tribunal has case management powers that would, for examples, allow it to require parties and others to provide information to the Tribunal/a party and to require any person to attend any oral hearing as a witness. If she had raised, or was proposing to raise, her concerns about the incident report as part of her unfair dismissal claim, the Employment Tribunal would be in a position to assess the relevance or otherwise of that issue and, if necessary, ascertain the names of any potential witnesses and require their attendance at an oral hearing. The Appellant would not have needed to know the name of the security officer in order to pursue that issue (and indeed she has not claimed that she would).'

https://www.bailii.org/uk/cases/UKFTT/GR...

J Roberts left an annotation ()

I'm pleased to hear that the wheels ar now turning. You made your request in the second decade of the twenty-first century. The Jarndyce v Jarndyce of FOI!

M Boyce left an annotation ()

Thanks J Roberts.

I like your reference to Dickens and his expert critiquing of the English legal system. The wheels of justice sometimes seem to move just as slowly these days. Having said that, my dissatisfaction is not with the slowness of the Tribunal process in this case, but with both the Respondents - the PHSO and the ICO - who have both dragged this process out for far longer than needed through either their incompetence or calculation.

M Boyce left an annotation ()

https://committees.parliament.uk/publica...

And now we have the PHSO wanting more public money for its 'exemplary' service. Has any person who has used the PHSO service ever described it as exemplary? If they have then perhaps the PHSO deserves a large bonus?

J Roberts left an annotation ()

Mr Behrens makes a big thing of the Covid-19 crisis being responsible for a backlog and the likelihood of being inundated with UC complaints. He told PACAC in June that the pause on investigating NHS complaints would end on 1 July. His letter is noticeably short on detail regarding the extent of the backlog. What was productivity like after 1 July, and were steps taken to enable caseworkers to work with optimal effectiveness? As for UC complaints, it takes ages to go through the DWP and Independent Case Examiner complaints procedures.

Will Rob's Academy of Learning have anything engraved on the door? Plato's had 'Let no one ignorant of geometry enter'. Maybe something less challenging: 'we have a template'.

Jason left an annotation ()

A classic case of throwing good money after bad there.

J E Garner left an annotation ()

There is no greater tyranny, than that which is perpetrated under the shield of law and in the name of justice.
Montesquieu

M Boyce left an annotation ()

Couldn't agree more with the last few comments.

It's interesting how Rob Behrens keeps banging on about the PHSO being or becoming an 'exemplary' service. The dictionary definition of exemplary can mean either serving as a model and worthy of imitation OR serving as a warning. Which definition did Mr Behrens have in mind?

Cleary the PHSO should indeed serve as a warning to those thinking about using this service. Don't take my word for it - take everyone else's.

M Boyce left an annotation ()

https://www.ombudsman.org.uk/sites/defau...

Why have the appendices not been published?

How does this demonstrate a commitment to transparency?

Jason left an annotation ()

Not sure, M Boyce. Perhaps there is some sensitive personal information therein. Maybe a FOI request is the way to go, as some of that looks like interesting reading.

J Roberts left an annotation ()

Good point, M Boyce.

I consider it highly unlikely that the question: 'Should the appendices be published too?' was not asked.

If the PHSO continues to keep important information from public gaze the public can hardly be criticised for asking to see it.

J Roberts left an annotation ()

Dr Bruce Newsome shoots to bits PHSO figures in his latest hard-hitting article entitled: 'letting another quango mislead parliament?'

https://thecritic.co.uk/why-is-the-gover...

'The PHSO investigated 30.6 percent fewer cases in 2019-2020 compared to the preceding year, even though enquiries fell by 7.4 percent. Yet, the PHSO misreported 13 percent more enquiries, as recently as August this year.'

M Boyce left an annotation ()

Yes Jason an FOI request may well be the way to go, though I suspect the PHSO will use every trick in the FOIA book to defeat it, particularly its favourite: vexatious requestor.

J Roberts, the article makes very disturbing reading. Every day this quango becomes less and less transparent and more and more evasive, secretive and utterly dismissive.

I am still waiting to hear whether all of the PHSO's last submissions to the Tribunal in my case could be fairly classed as 'closed submissions' under GRC Rule 14. The problem is the PHSO can just make submissions to the Tribunal under Rule 14 to make sure that I never get to see those submissions. When all said and done my case involves the PHSO shouting legal professional privilege at every and any opportunity. This allows them to send the Tribunal information that I will never see and can never respond to. Another example of the PHSO's lack of transparency and lack of accountability.

J Roberts left an annotation ()

I understand your predicament.

"39. As foreshadowed by Lord Taylor in Ex parte B in FOIA Parliament has specifically legislated to permit the disclosure of communications to which legal professional privilege attaches. Neither section 2(2)(b) nor section 42 use words which, necessarily, lead to the conclusion that the party seeking disclosure of information to which section 42 applies faces a more onerous task than a party who is faced with exemptions based upon other sections of the Act."

"48. However, that is not the end of the matter. In the light of the consistent line taken by the Tribunal as to the weight to be attached to the public interest against disclosure in-built into legal professional privilege (an approach which I have found to be the correct one) it was incumbent upon the Tribunal in the instant case to give significant weight to that interest. Further the Tribunal was obliged to consider whether the weight to be given to the public interest considerations militating against disclosure were countered by considerations of at least an equal weight which supported an order for disclosure."

https://www.bailii.org/ew/cases/EWHC/QB/...

Case No: QB/2008/APP/0759

M Boyce left an annotation ()

Yes, but I think the main problem is the issue of what information should remain legally privileged DURING the case progression and what should not. Section 42 cases are very difficult for an appellant because they have to effectively fight blindfolded: I don't know what the PHSO have sent to the Tribunal and I don't know all, or perhaps even much, of what they have told the Tribunal. My concerns are of course multiplied by the fact that the ICO have maintained that the PHSO have sent the Tribunal little but entirely irrelevant information, and by the fact that both the ICO and the PHSO have declined an invitation from the Tribunal to attend an oral hearing to presumably shed light on these and other matters.

Am I wrong or paranoid to be concerned?

J Roberts left an annotation ()

You have every right to be concerned: the process is Byzantine. If the PHSO has sent little information of relevance to the ICO why hasn't the ICO requested information within the scope of your request, or if the ICO has requested relevant information, why hasn't it been provided? You are playing Jenga blindfolded.

Latest Section 14 FOIA appeal dealt with in the UT:

https://www.gov.uk/administrative-appeal...

(an exhausting read)

Related DN:

https://ico.org.uk/media/action-weve-tak...

I can't find the related FTT decision.

M Boyce left an annotation ()

The Judge Wikeley UTT case is interesting, but as you say exhausting. I was lolling in and out of consciousness near the end of it and nearly ended up with whiplash when I fell out of the chair!

Anyone who has spent considerable time looking through the many ICO decision notices on their website cannot fail to notice just how biased they are and how they will do anything to find in favour of the establishment. That anything I now know for certain includes trying to deceive appellants (they told me they couldn't tell me whether the PHSO had sent them and the Tribunal external legal advice, but were later forced, via the FOIA, to admit that they had, albeit later saying it was irrelevant advice), as well as turning a blind eye to the establishment sending the Tribunal all manner of apparent codswallop (irrelevant information) masquerading as relevant 'legal advice'. You couldn't make it up, and promise I am not, as will be seen when this all does finally come out in the wash.

Jason left an annotation ()

This doesn't sound like a fair fight at all, M Boyce. Perhaps that is why the likes of the PHSO feel they have got it in the bag. Essentially you are putting all your faith in the impartiality, care, diligence and skill of the judge, and we all know how often they get it wrong. It sounds like it has happened already in this case.

Moreover, you can't really appeal if the judge does something stupid or exercising bias that you're unaware of.

You mentioned some time ago (it was on the other thread I believe) that the PHSO may have lost their legal professional privilege, or some aspect of it, due to their foolishness. Do you still have that argument at your disposal?

M Boyce left an annotation ()

I don't know what is going to happen with the Tribunal, and obviously I have put my trust in them, but I do know that fairness is not a word that either the PHSO or the ICO are familiar with.

I have argued to the Tribunal that the PHSO effectively, albeit unwittingly, 'waived' legal professional privilege because they disclosed a string of email and other communications on the 'legality' of the PHSO review process to another FOI requestor. The email communications that were supplied could not possibly have been the complete communications because they stopped about a year before the request. Why weren't the rest of the communications sent to the requestor and therefore the rest of the world?

The doctrine of partial disclosure does complicate things, but in any event the unarguable point is that these communications directly contradict the PHSO December 2017 Board Minutes: the former says that the review process IS allowed in law and the latter says that it is not. Is it in the public interest for the public to be at best clumsily supplied with contradictory and confusing information or at worst deliberately misled on such an important matter? The Tribunal will decide on this matter and other issues relating to my request. Let's hope this happens before the second anniversary of my appeal to the Tribunal!

Jason left an annotation ()

Yes, it is quite ironic that the PHSO are an organisation that are meant to act in accordance with the principles of natural justice.

Something also smacks of dishonesty there with the conflicting information. Dishonesty or corrupt behaviour may, of course, amount to or play a part in misconduct in public office.

"Lying to or misleading the public amounts to an abuse of public trust in that office, hence there is, on its face, evidence to meet the ingredients of the offence. The District Judge broadly agreed.":

https://thesecretbarrister.com/tag/misco...

M Boyce left an annotation ()

The PHSO have most certainly misled the public with regard to their review process. Judge Shanks in my case EA/2019/0334 described the review process as 'in a muddle and needs to be sorted out', but he also said that this was because the review process is not provided for in law. So you might ask why doesn't the PHSO want to get itself out of this muddle and work with PACAC to effect a change in the law to allow for the review process? This muddle has never been discussed with PACAC, in fact it has never even been mentioned. Why?
I spoke to the clerk of PACAC on the phone several times and on the last occasion he angrily promised me that PACAC would never ever discuss this issue with the PHSO, nor with me. Why? I kick myself for not recording that conversation!
So neither the PHSO or PACAC want to sort out this illegal muddle. Why?

Jason left an annotation ()

Those are interesting comments from Judge Shanks. Does he actually posses any powers to rectify the mess though, aside from upholding your appeal?

The clerk of PACAC sounds like an extremely dubious character.

I suspect there are a lot of political reasons behind all the inertia. The NHS is a national treasure (at least to the ordinary person), and the majority of the complaints to the PHSO are about the actual or perceived poor service people receive from the NHS. If the NHS is performing badly, and this is highlighted by the PHSO to some degree, this undermines the party in power.

The review process gives the PHSO, and by association the government, an excellent further opportunity just to brush any shortcomings under the carpet, so to speak, both in terms of the PHSO services and the NHS. This also saves the government money in terms of coughing up compensation.

Moreover, the review process affords the PHSO a belt and braces type system which protects it against a Judicial Review challenge, which also assists the Tories in bringing down public spending and the deficit.

All this is just my speculation though.

M Boyce left an annotation ()

The judge did not uphold my appeal: quite the contrary, he dismissed it as vexatious - despite saying that the review process was 'in a muddle and needed to be sorted out'. Work that one out.

The actions of the clerk of PACAC speak for themselves.

The review process does indeed act to benefit both the PHSO and the government, and the judiciary for that matter, so that makes the PHSO's total unwillingness to get the review process sorted out (made legal) all the more inexplicable.

Jason left an annotation ()

Gosh, M Boyce, what an absolute charade all this is. I suspect the like of the ICO and/or PHSO did a great job of using the "vexatious" tactic and brainwashing that judge.

Yes, agreed. I think you've got an uphill battle here though. I truly hope at lease some justice will prevail.

M Boyce left an annotation ()

My main gripe with Judge HH Shanks is his utter disregard for fair process. We all place our trust in judges to be fair and impartial, but how on Earth can they be if they point blank refuse to look at the evidence from an appellant? It is no good coming back later after the appellant has complained and then saying oh well I have now grudgingly looked at the evidence and come to the same conclusion I did without first seeing that evidence.

It is a clear abuse of trust to prejudge and then ignore evidence. I am quite sure the judge would disagree, but no fair-minded person would agree.

Jason left an annotation ()

I totally agree. It seems that judge was exercising bias, at a conscious and/or unconscious level, towards the establishment and/or he was just slapdash in his approach.

Sadly, these judges get paid vast sums of taxpayer's money whether they do a good job or not, safe in the knowledge that most appeals are likely going to fail. Personally, I think that kind of behaviour is egregious, unethical and unconscionable.

M Boyce left an annotation ()

http://informationrights.decisions.tribu...

The Nicholas Wheatley v PHSO case published today on the GRC website nearly six months after it should have been published.

M Boyce left an annotation ()

29. The PHSO is part of the legal and judicial landscape of the UK and public
confidence in the system is of primary importance. It is vital that the Ombudsman,
as a public official, is seen to act with honesty and integrity. Any suggestion that he
might act unlawfully is harmful to his office and the legal and judicial system. It
would not be in the public interest to withhold information that might reveal
unlawful conduct by a public official and to allow that conduct to continue. If the
information is released it will hopefully show that the Ombudsman has behaved
lawfully and will restore public confidence.

'It would not be in the public interest to withold information that might reveal unlawful conduct by a public official and to allow that conduct to continue.'

Indeed. So how do this judicial statement sit with the PHSO's own declaration that its review process is not legally allowed, but nonetheless the public should not be allowed to know the details of this?

M Boyce left an annotation ()

https://committees.parliament.uk/publica...

The above is described as the 'Government Response' on the PACAC website? Is the PHSO now the Government?

Where is the actual Government Response?

Jason left an annotation ()

There is so much pretentiousness on the PHSO's part in that document that it makes me want to vomit.

I see it has been proposed that the PHSO and the Local Government and Social Care Ombudsman should be replaced with a single Public Service Ombudsman, and a Public Service Ombudsman Bill may be put through parliament. One wonders what will happen to the PHSO's treasured and dubious review process if that happens.

Jason left an annotation ()

This paragraph is pretty alarming too:

"We would also welcome the Committee’s support for PHSO having legal powers to offer and charge for training,
which will enable us to assist with professionalising complaint handling across the bodies in our jurisdiction"

I think the PHSO should really get its own house in order first, and the fact that is trying to grab further legal powers is certainly alarming.

J Roberts left an annotation ()

Jason,

You make a good point. Serious and credible allegations highly critical of the PHSO are just a mouse click away. Public confidence in the organisation is disappearing fast. I have enquired about the impressive-sounding learning academy here:

https://www.whatdotheyknow.com/request/p...

Something else of interest, related to Sir Robert Francis QC and his view that the PHSO should become more involved with trusts:

https://www.whatdotheyknow.com/request/i...

M Boyce left an annotation ()

https://committees.parliament.uk/publica...

The above letter above disclosed to me after a conversation with PACAC this afternoon will be like music to the ears of Mr Behrens. There will be no new Public Service Ombudsman, and no reform of the antiquated, legally unsound, and highly inefficient current system.

We can all 'look forward' to much more of what we have long become accustomed to.

J Roberts left an annotation ()

M Boyce,

This part puzzles me:

"There are budget implications for the PHSO if the merger does not occur as the Committee understands that its previous settlement was based on realising the savings that would come from one organisation."

I don't recall seeing anything to suggest that there ever was any strong likelihood that the merger would take place. And why the word 'understands'; presumably information exists spelling things out?

......................................................................................................

'Call for evidence

Written evidence - Parliamentary and Health Service Ombudsman Scrutiny 2019-20

The Public Administration and Constitutional Affairs Committee (PACAC) is responsible for scrutinising the work of the Parliamentary and Health Service Ombudsman (PHSO).

PACAC is launching its annual scrutiny session into the work of the PHSO in the financial year 2019/20.

As set out in its previous report, the Committee intends to consistently scrutinise the following matters and would welcome evidence relating to them:

• The PHSO’s casework performance, including performance against KPIs.

• Staff management and training.

• Value for Money

• Impact on other organisations.The Committee would also welcome evidence on the following subjects:

• The PHSO’s provision of reasonable adjustments to service users.

• The time taken for the PHSO to respond to correspondence, including Subject Access Requests and Freedom of Information requests.

The deadline for receiving written submissions is Friday 30th October 2020'

https://committees.parliament.uk/call-fo...

J Roberts left an annotation ()

Most recent decision notice related to the PHSO and LPP:

'19 The Commissioner agrees with the PHSO that LPP carries with it a strong inherent protection due to the nature of the information that it covers, and the function that it plays in the administration of justice. The Commissioner has not been presented with any argument in favour of disclosure which is sufficiently strong to overturn the protection that LPP requires. The Commissioner’s decision is therefore that the public interest favours maintaining the section 42(1) exemption.'

IC-45662-G8F3

https://ico.org.uk/media/action-weve-tak...

Jason left an annotation ()

Yes, Mr Behrens and his ilk will be undoubtedly tickled pink by the news that there will be no new Public Service Ombudsman.

As of the ICO decision, no surprise they are acting true to form.

M Boyce left an annotation ()

Yes the latest ICO DN on section 42 LPP comes as no surprise. I notice, however, that the ICO seem to have dropped their dogmatic insistence on extreme exceptionality. I wonder why?

Is the requested advice live or not live? Toss a coin and find out.

A new PSO is not in fact necessary for PHSO legislative reform: a simple Statutory Instrument could very quickly and easily amend the outdated and confusing legislation. Why isn't Mr Behrens calling for this simple and cost effective expedient? Could it be that he doesn't REALLY want reform of the Ombudsman and its legislation?

He is to be judged by his actions and not his words.

J Roberts left an annotation ()

The 'very exceptional' criterion appears to have been dropped.

Have you seen this:

“4.1 ...Since April 2013 we have tightened the criteria to provide clarity and to ensure that reviews of decisions are only undertaken where legitimate concerns exist. Since the introduction of the criteria, we have accepted 40% less complaints for review.”

(the document pages are not numbered sequentially, but according to page number of my document reader it is page 77)

https://www.whatdotheyknow.com/request/2...

Increased clarity and wiped out illegitate concerns at the stroke of a pen. Amazing!

M Boyce left an annotation ()

It was never the PHSO that were making and endorsing the 'very exceptional' argument - that was, and maybe still is, the ICO. The PHSO went even further at two-fingering the law: they argued that 'it was NOT POSSIBLE' to use section 42 to obtain legally privileged information from it. The ICO made the 'very exceptional' argument to the Tribunal and the PHSO used the 'not possible' argument. The FOIA simply states that the public interest in disclosure only needs to outweigh the public interest for non-disclosure. Both the ICO and the PHSO are repeatedly corrupting the letter and the spirit of the law to further their agendas.

Jason left an annotation ()

I would be very inclined to agree. The whole thing stinks to high heaven.

Are you any nearer to getting any kind of hearing at the Tribunal?

M Boyce left an annotation ()

Yes Jason I would hope the Tribunal will hear the case fairly imminently. There is now no more (apparent) obstacles to prevent this.

The Tribunal website has been in chaos since the start of the pandemic, but as soon as I get a decision from the Tribunal I will post it here.

J Roberts left an annotation ()

The Tribunal website is still down. It's got a virus worse than Covid!

M Boyce left an annotation ()

Yes J Roberts the Tribunal website has been malfunctioning since the start of the pandemic. I contacted them about this three or four times during the summer, but they just stated that they had reduced staff due to the pandemic and didn't have time to deal with issues such as publishing decision notices.
Six months on the situation appears worse than ever. Justice (such as it ever was), like people's health and sanity, is rapidly going down the pan.

M Boyce left an annotation ()

There are several very serious issues with the FTT website being indefinitely unavailable. Firstly, we now have no idea of how many, if any, cases are being looked at and decided by the Tribunal. Secondly, any appellant wanting to search the Tribunal past cases is now unable to do so and cannot now use past cases to help inform their case.

We currently have high unemployment in this country, and yet the FTT say they do not have enough staff to publish decisions. Why can't they offer some unemployed people a job and simultaneously possibly help to facilitate some justice in this country?

Is this a manifestly unreasonable suggestion?

Jason left an annotation ()

Fair point I would say, M Boyce.

It's not just the FTT that is dragging to a halt - I've been waiting for ages for some progress in regards to my complaints/cases with the Legal Ombudsman and the PHSO. I am certainly not holding my breath in respect to the latter, though, for obvious reasons. Indeed, I have decided that sending the PHSO any further complaints/cases is most likely just going to be a waste of time and energy, and only serves to exasperate my sense of injustice and grievance.

M Boyce left an annotation ()

I agree Jason.

I would say to anyone thinking of taking a complaint to the PHSO to think very carefully about it: if you like endless stress, frustration, disappointment by the bucket load and a miniscule chance of any success whatsoever then go for it; if not then don't bother.

J Roberts left an annotation ()

Unrepresented appellants are now not only hobbled but blinded as well!

As for approaching the PHSO, things seem to be getting worse. Get to a good lawyer before it's too late. Here's what people think of the Ombudsman.

Trustpilot:

https://www.whatdotheyknow.com/request/p...

'What's the Point of the Ombudsman?':

https://www.amazon.co.uk/gp/product/1999...

Latest story by PHSO the Facts on the Ombudsman's venture into radio (spoiler alert: it hasn't gone well):

https://phsothetruestory.com/

Jason left an annotation ()

Yes, the whole thing is an unmitigated disaster. The PHSO claims to be "independent", but it is certainly not impartial. In my humble opinion, it is set up as a whitewashing machine, or has certainly covertly morphed into such an entity over recent years, with the view to protecting government agencies, and by association the government itself, from being held to account and/or challenged by Judicial Review.

M Boyce left an annotation ()

The Tribunal sat this week to hear my case EA/2019/0032 - legal advice about the PHSO review process. The case will be unlikely to be published on the now defunct GRC website, so I will post it here when I get it.

Jason left an annotation ()

Sounds very interesting, M Boyce.

Did you attend remotely, and do you have a sense of how things went?

M Boyce left an annotation ()

No Jason. I wanted to attend a remote hearing, which the Tribunal at first said was absolutely necessary, but both the PHSO and the ICO refused to attend, so the Judge decided it then wasn't necessary!

As for how the hearing on the papers went; well suffice to say that my faith in good old British justice is not strong, but we'll find out soon enough.

Jason left an annotation ()

Yes, I can certainly empathise with your view of good old British justice, as I am been left extremely disillusioned for a very long time.

Jason left an annotation ()

Any further updates, M Boyce?

I would say the way that case has been handled by the respective Judge(s) hitherto is a serious concern.

D. Moore left an annotation ()

Here is an information notice dated 9/11/20 that I came across:

https://ico.org.uk/media/action-weve-tak...

"Section 51

Under section 51 of the Freedom of Information Act 2000 (the “Act”), which is set out below, the Information Commissioner (the “Commissioner”) has the power to serve a notice on a public authority requiring it to furnish her with any information she requires to enforce the requirements of the Act."

"18. In view of the matters described above the Commissioner hereby gives notice that in the exercise of her powers under section 51 of the Act she requires that the PHSO shall, within 30 calendar days of the date of this notice, furnish the Commissioner with a copy of the following information:

The withheld information.

Further more detailed arguments to support the application of sections 40, 42 and 44 of the FOIA as outlined in the Commissioner’s email of 14 April 2020."

M Boyce left an annotation ()

No further updates yet Jason, but I believe that the decision is currently being written by the Tribunal judge.

My main concerns with the case are more about how the PHSO and the ICO have worked to drag this case on for almost two years so far. Time and time again the PHSO failed to adequately respond to the numerous directions from the judge, and time and time again both the PHSO and the ICO tried to deny the Tribunal essential information.

In fairness to the judge, she has provided both the PHSO and the ICO more than ample opportunity to cooperate fully with the Tribunal - without total success.

Thanks for the link to the ICO DN D Moore. It quite aptly shows that the PHSO are still continuing to show what can only be described as contempt for requestors. But to make such an obvious statement of fact is to to risk being muzzled as vexatious by the establishment.

M Boyce left an annotation ()

D. Moore, where did you obtain the above ICO DN, dated November 09 2020 concerning the PHSO? I ask because it has not been published on the ICO website.

It now appears that both the ICO and the FTT are not publishing some (in the case of the ICO) or all (in the case of the FTT) of their decisions.

D. Moore left an annotation ()

M Boyce,

The ICO publishes its information notices and practice recommendations here:

https://ico.org.uk/action-weve-taken/inf...

M Boyce left an annotation ()

Thanks for this info D. Moore.

J Roberts left an annotation ()

Recent report by Open Democracy - 'Art of Darkness: How the government is undermining Freedom of Information':

https://beta.documentcloud.org/documents...

"It is unclear why the ICO makes such infrequent use of Information Notices (the ICO’s website states that as of November 2020 it has issued 28 since June 2019 while processing more than 1,000 complaints).

Information Notices give authorities thirty days to submit a copy of the requested information and its arguments for withholding it, which seems a reasonable time frame. After all, authorities should have prepared this material during the request and internal review stages.

It is plausible, however, that public bodies require extensions because they are not responding to requests in good faith and are betting on requesters failing to use the appeals process." (page 23)

M Boyce left an annotation ()

http://informationrights.decisions.tribu...

And now we have the above decision just published on the FTT website.

It makes very interesting reading. How dare the PHSO still claim it is open and transparent? It is an obstructive, defensive and highly opaque organisation.

It is also interesting how Judge HH Shanks does not pull his punches here, whereas in my appeal before him about the PHSO he describes their review process

M Boyce left an annotation ()

... in a mess and needs sorting out; yet my enquiries about this mess he then categorises as vexatious.

The PHSO time and time again behaves like an unaccountable autocrat.

Jason left an annotation ()

J Roberts,

Yes, that last paragraph seems reasonable to me. The PHSO and its ilk take full advantage of the fact that requestors/appellants/service users would need to be very familiar with judicial processes and have the resources to use them in order to access a crumb of justice.

M Boyce,

I could not agree more, as that has proven to be the case, in my opinion, purely on my own personal experiences.

I note that Judge Shanks, for all intents and purposes, labels the PHSO as a bunch of liars at paragraph 10.

It is good to see a small victory for the ordinary person in regards to that judgment. Needless to say, it further suggests that the ICO are not fit for purpose.

J Roberts left an annotation ()

M Boyce,

"Indeed, leaving aside any technical arguments I am puzzled as to why the PHSO did not just get hold of the documents from the LGSCO and pass them over to Mr McDougall, thereby saving a great deal of unnecessary time and expense."

Indeed!

D Moore made a request to LGSCO about the Joint Working Team Manual in December 2019:

https://www.whatdotheyknow.com/request/p...

The request was based on Mr McDougall's 'not upheld' DN ref. FS50871882:

https://ico.org.uk/media/action-weve-tak...

Versions 2,3 and 4 of the manual were provided.

J Roberts left an annotation ()

Jason,

It seems reasonable to me too.

Here is something from a DN concerning Greater Manchester Police illustrative of inaction:

'22. On 11 March 2020, GMP wrote to the Commissioner outlining its reasons for not having conducted an internal review (which included a lack of resource and “numerous competing priorities”, together with some confidential concerns). It said it would not be able to carry out an internal review until another officer was available and asked for the Commissioner’s view.

23. The Commissioner explained that: “Internal reviews are not a statutory requirement under the FOIA. We always advise public authorities to conduct them where possible. There may, of course, be circumstances where it is neither prudent nor a proportionate use of resources to carry out a review” and said that GMP could, in the circumstances of this case, elect not to conduct an internal review provided it explained this to the complainant and advised him to complain to the Commissioner.

24. GMP wrote to the complainant on 3 April 2020 advising that it would not be carrying out an internal review. The complainant complained to the Commissioner about this that same day.'

https://ico.org.uk/media/action-weve-tak...

In some cases, not carrying out a review seems like a useful way for a public authority to get the Commissioner to do more of the work required.

J Roberts left an annotation ()

M Boyce,

It is indeed interesting how Judge Shanks dealt with your appeal.

Perhaps a distinction could be made between decisions concerning issues with potentially significant implications like yours, and those of less significance like Mr McDougall's. Someone once suggested to me that the perceived implications of a decision invariably colour how a decision-maker views the merits of any related argument.

M Boyce left an annotation ()

Jason, I certainly agree that the ICO are also not fit for purpose: they merely rubber-stamp what an authority says and ignore the general public.

I think reviews are generally a good thing - provided they are both legal and properly and fairly done - neither applies to the PHSO.

J Roberts, you quote:

'...the perceived implications of a decision invariably colour how a decision-maker views the merits of any related argument.'

Yes, and that should cut both ways: good implications as well as bad implications. Ultimately it is in the public interest and for the public good for the PHSO to be open, transparent and to act within the law - the PHSO knows that they are not open, transparent or acting within the law, the ICO knows this, and the First-tier Tribunal knows this, and yet this behaviour is continuously promoted and endorsed under the FOIA, e.g. sections 14 and 42, to name but two.

Joe public are being taken for fools.

J E Garner left an annotation ()

There is to be n Upper Tribunals Appeal Consultation
see link:
https://panopticonblog.com/2020/12/04/up...
and
MoJ-Proposals for reforms to arrangements for obtaining
permission to appeal from the Upper Tribunal to the Court of Appeal link:
https://assets.publishing.service.gov.uk...

Jason left an annotation ()

Really shocking to see this government seek to limit access to justice further, as if things aren't bad enough already.

M Boyce left an annotation ()

Thanks for these links G.E Garner. I will look at them closely over the weekend. It looks quite concerning stuff.

J Roberts left an annotation ()

Appeal Reference: EA/2019/0275V

The Crown Prosecution Service's appeal was allowed, so s42 remains a difficult nut to crack. But I note the judges remark on policy at paragraph 47.

http://informationrights.decisions.tribu...

'18. The Commissioner concluded that the public interest reasons did not need to be ‘exceptional’ to overturn the strong public interest in maintaining the exemption, but she recognised the significant public interest in not undermining the ability of a public authority to freely seek and receive frank legal advice in future, and the need for confidentiality between lawyers and their clients so that advice can be given freely without fear of intrusion.

19. However, the Commissioner noted that the legal note was 17 years old,

20. The Commissioner decided that there was ‘a stronger public interest in the public knowing about the competency and compellability regarding whether the Sovereign can be called as a witness in court proceedings.

35. However, in my view there is nothing in the case law to which I have been taken which indicates that the ‘in-built’ significant weight can vary from case to case.

47. I also do not agree that the advice, even if it is current, amounts to a CPS ‘policy’ on the issue in question which elevates the public interest in disclosure.

48. it is my view tha t the Commissioner erred in finding that the public interest in disclosure outweighed the significant ‘in-built’ public interest in non-disclosure demanded by th ecase-lawi n s42 FOIA cases.'

J Roberts left an annotation ()

Link to the DN of 4 July 2019:

https://ico.org.uk/media/action-weve-tak...

"2. The Commissioner’s decision is that although section 42(1) of the FOIA is engaged, the public interest favours disclosure.

5. Paul Burrell, a former royal butler , faced three charges of theft involving 310 items from the late Princess of Wales’ estate.

7. However, on 2 November 2002 the trial was discontinued as the Queen confirmed that Mr Burrell had told herin a private conversation after the Princess’ death, that he had kept some of her possessions for safekeeping."

M Boyce left an annotation ()

The above case contrasts with mine:

The CPS compellability of the Queen case is 'of interest to the public'; mine is 'in the public interest.'

In the CPS case the ICO pull out all the stops hiring flashy barristers; in mine they refused to even attend an essential hearing.

The CPS case did not involve a serious lack of transparency; in my case the PHSO promoted its not legally allowed behaviour.

In the CPS case the ICO claim that LPP cases need not be exceptional; in my case they claim they must be very exceptional.

The ICO is so Janus-faced the rest of us mere mortals don't know who's coming or going.

J Roberts left an annotation ()

M Boyce,

You are right to point out the glaring inconsistencies between how the ICO dealt with the two complaints. Maybe because the other complainant was a professor, the complaint was not passed to a caseworker who favours the 'very exceptional' baloney.

Jason left an annotation ()

Be inclined to agree with you both.

Anyone heard of the 'Faulks inquiry'? This Tory government are now seemingly trying to screw judicial review law further in their favour:

https://www.lawgazette.co.uk/news-focus/...
https://www.thejusticegap.com/government...

Very worrying.

M Boyce left an annotation ()

No Jason I'd not heard of it.

Judicial review is a valuable constitutional check and balance; but let's be honest: it is and only ever was aimed at helping the rich or legal aid areas such as immigration cases. Judges only ever respect barristers and fancy lawyers, and certainly not litigants in person. If anyone doubts this they need only look at the number of cases of litigants in person (poor people) who are granted permission to proceed with judicial review. Perhaps all litigants in person are incapable of making a convincing case? No, I don't believe it either.

It is not what you know, but simply who you know - or who you can afford to know.

Jason left an annotation ()

Yes, that has been my experience too, albeit in the Employment Tribunal and Employment Appeal Tribunal.

The situation is also worsening all the time due to austerity and legal aid cuts etc. In most cases, there are no incentives for legal aid solicitors to take on cases, and only profound disincentives such as cost risks and very poor remuneration. Of course, every litigation carries some risk, as no outcome is guaranteed. Needless to say, all this is hardly going to attract the most highly skilled solicitors. In my experience, all the other side needs to say is 'boo' and my legal aid solicitor would run a mile.

Britain’s most senior judge, Lord Chief Justice Thomas of Cwmgiedd, has even argued, “our justice system has become unaffordable to most”. This is a remarkable statement about a country whose founding document, the Magna Carta, in a statute that still stands in English law, states that “We will sell to no man, we will not deny or defer to any man either Justice or Right.”

M Boyce left an annotation ()

Yes totally agree.

I see that the FTT website is down again. It has crashed more times this year than a boy racer covered by diplomatic immunity.

Jason left an annotation ()

Any significant updates, M Boyce?

Here is some alarming news:

https://www.theguardian.com/commentisfre...

M Boyce left an annotation ()

Significant enough Jason.

I contacted the First-tier Tribunal last week to ask what was going on with appeal EA/2019/0032 since 11/02/21 marks the second anniversary since the Tribunal acknowledged receipt of the case. So I am now entering the third year of this case being considered by the Tribunal.

The judge responded and said she had more important things to deal with! Other cases that had been waiting for more than two years? Don't know.

It's interesting because the FTT themselves said that justice delayed is justice denied.

The Government's attack on the FOIA is very worrying. It's clear that they would love to abolish it, but might find that a little bit difficult.

J Roberts left an annotation ()

'105. As a matter of practice, I am also aware that like many tribunals GRC is heavily reliant on fee-paid part-time tribunal judges whose first commitment is necessarily to their 'day job’... Furthermore, at the time in question I believe (and take judicial notice of the fact) that the Chamber had just one salaried judge and one registrar in post.'

https://assets.publishing.service.gov.uk...

DVLA-v-Information Commissioner and Williams (Section 31)[2020] UKUT 334(AAC)

M Boyce left an annotation ()

Having done a little research one of the more important things may well be the judge's involvement in what looks like being a landmark case for the 'victory for free speech and openness'. In a hearing in late January 2021 a tribunal decided against restrictions limiting access to the FOIA to UK citizens living in the UK.

Jason left an annotation ()

That delay is very concerning, M Boyce. I note, however, that many public services have ground to a halt due to the pandemic, including the ICO, who have not responded to any of my enquiries for quite a while.

The PHSO have also sat on cases of mine for circa 2 years, not that I am expecting a positive outcome there. It also appears they have no one monitoring or acting on subject access requests etc.

Needless to say, while the pandemic continues, public bodies and quangos are seemingly getting away with murder, not that this is anything new.

That sounds like positive news, though, regarding that landmark case. Hopefully it is a step in the right direction.

M Boyce left an annotation ()

Yes Jason, I agree with what you're saying.

Authorities like the PHSO and the ICO have little excuse for such delays during the pandemic, especially non-NHS work. They work from the safety of home, unlike many others. If you point this out to them they just get their vexatious card out.

An even bigger problem with the PHSO, the ICO and the courts and tribunals is that they have been starved of money under austerity for over ten years. This is leading to huge backlogs of cases and rushed and botched cases.

Justice delayed is justice denied, and equally justice on the cheap is justice denied. That is not a vexatious opinion, just a simple statement of the truth.

Jason left an annotation ()

Totally agree, M Boyce.

The irony is the government and government agencies have very deep pockets when it comes to defending their decisions in court and at the pre-action stage, including the egregious and/or botched ones that you have alluded to that are ultimately caused by austerity, albeit indirectly and in part.

Sadly, given the current state of affairs, and the financial situation attributed to the pandemic, it seems very likely that this awful situation is going to remain for quite some time. It may even get worse. Very depressing…

J E Garner left an annotation ()

Please see recent ruling by Judge Wikeley
https://panopticonblog.com/2021/02/19/bu...
Bundles of Fun
February 19th, 2021
Not infrequently in the Tribunals an issue will arise about the handling of documents or evidence disclosed in the course of an information rights appeal, in a context where the GRC and UT Rules do not contain an equivalent to CPR r.31.22. Some useful guidance has now been given from the Upper Tribunal in DVLA v Information Commissioner & Williams [2020] UKUT 310 (AAC).

Mr Williams wished to post online the entire open hearing bundle for his appeal in the FTT, along with the skeleton arguments, in order, he explained, to solicit assistance with his response to the DVLA’s appeal to the Upper Tribunal. He wanted comments on their arguments from a wider audience given he was acting in person. Mr Williams considered that he did not need the permission of the UT to do so, but agreed to wait until DVLA’s application for a direction preventing him from publishing was considered.

Judge Wikeley dealt with the matter in a separate judgment. He held that Mr Williams did require the UT’s permission before he could publish the bundle on the internet, to the world. He agreed with Moss v Information Commissioner & Cabinet Office [2020] UKUT 242 (AAC) that there was no Article 6 ECHR right engaged in a FOIA appeal, and the right to seek legal assistance did not require publication of the hearing bundle. The UT Rules do not contain the provisions of the CPR, but it was appropriate to import the same solution where CPR r.31.22 (and r.31.12) codified the implied undertaking at common law not to use documents disclosed in legal proceedings for a collateral purpose. The same approach had been taken in the Employment Tribunals, where the rules were equally silent. Accordingly, Mr Williams required permission to depart from that position.

Judge Wikeley accepted that there were distinctions between the case and those which permitted disclosure of documents referred to in open court to non-parties: this was not an open justice matter at all, it pre-dated the hearing and did not involve a request from a non-party. Judge Wikeley did not quite answer whether or not the UT would have the power to permit Mr Williams’ request, or what the power might be if it existed.

He did, however, address the power to restrict publication in rule 14 of the UT Rules, which he agreed could be used to prevent wider publication of material in an open bundle if it was interest interests of justice to do so. Judge Wikeley agreed that he should make a direction doing so, as requested by the DVLA. In particular, he accepted the data protection concerns of publication of all the material in the bundle to the world at large – a rather different proposition to providing copies of some documents to journalists reporting on proceedings, without limitation and without any possibility of subsequent control. The direction made prohibited publication of all documents in the bundles, save for the FTT judgment, but including (in the circumstances) the skeleton arguments.

In an era of remote hearings and electronic bundles, the judgment in DVLA is likely to be of real practical significance, although it will also doubtless give rise to concerns about the ability of the Tribunals to address cases in which a party publishes without notice or application. Revision of the Tribunal Rules to provide clarity would be no bad thing.

I am constantly being referred to the PHSO for my long running case, but will not budge....
J E Garner

M Boyce left an annotation ()

Sadly, this precedent just goes to show how out of touch with reality many judges are. Judge Wikelely says that poor litigants in person can just pop down to their local lawyer and get pro bono legal advice. Not a chance. Access to pro bono legal advice is very rare and very limited and not available to ordinary folk - and I know because I tried. The Government have also abolished legal aid over the past ten years for public law cases especially - they don't want the plebs, and that certainly includes me, to know what they are really up to.
So public authorities can get the very best legal advice (£400 per hour), all paid for by me and you, but now judges are denying the most vulnerable people access to ANY legal advice - legal advice from the public for free.
I have obtained essential legal advice from others about my case(s), especially via the public forum that is WDTK.

I do agree that it might not be fair to publish ALL documents on the web, particularly disclosing things like email addresses. But stopping litigants in person discussing their cases, and therefore eliciting advice, is a step way too far.

This country is becoming more and more unequal and more and more authoritarian: you get justice if you can afford to pay for it, or in a public authority's case, the tax-payer pays for it.

M Boyce left an annotation ()

Notice as well that the Judge Wikeley precedent is not just about data protection principles, or even about data protection principles, but is about preventing any discussion of a case before a hearing whatsoever. He says that 'skeleton' arguments must not be published. But what exactly constitutes a 'skeleton' argument? Is is just the bare bones of an argument/case? Surely that would cover any summary of a case - the whole skeleton? What if it was just some of the bigger bones that were mentioned? The logical extension is that to mention even your funny bone would be illegal? Only the Government and many judges would laugh at that.

M Boyce left an annotation ()

Judge Wikeley makes extremely specious arguments:

(1) It's fine for journalists to publish skeleton arguments, but not Joe Public?
(2) Publication on the web is not allowed, as it is collateral?
(3) Authorities would fail to include documents in a bundle if they thought that an appellant might discuss them?
(4)Open justice can not include an appellant asking for free legal advice from the public?
(5) A tribunal could not control publication if Joe Public published a skeleton argument, but they could control it if journalists published it?

None of those arguments stand up to proper scrutiny.

Jason left an annotation ()

Yes, I am inclined to agree, M Boyce. Due to the abject lack of legal provision afforded to the poor or ordinary person, litigants are left with no choice but to reach out to others on the internet. Judge Wikeley’s judgment fetters this and restricts access to justice further, whether so intended or not.

You refer to rates of £400 per hour, however, I have recently been quoted £500 per hour in regards to a matter I requested assistance with. Needless to say, that just relates to the cost of one solicitor, and when barristers are instructed the figures easily enter into the hundreds of thousands as you know, especially in regards to litigation in the High Court, or when claims are allocated to the Multi-Track in the County Court.

As you and I both know, all this sits very comfortably with public authorities and the government, especially the unscrupulous one we currently have, who won’t lose a second’s sleep over the issue of costs.

That judgment also raises the following questions:

1) What if the information published is already in the public domain, or should be?
2) Is publishing to cloud-based services also forbidden (this is, for all intents and purposes, the internet)? Clients and solicitors use 3rd party services like that all the time when sharing documents relevant to a litigation.

J Roberts left an annotation ()

'Sadly, this precedent just goes to show how out of touch with reality many judges are.'

A recent tweet by Jo Maugham of the Good Law Project:

'The Law Lord, Devlin, captured the innate conservatism of the judiciary in his description of them as a "body of elderly man (sic) who have lived on the whole unadventurous lives… old-fashioned in their ideas." But even they are likely to be further reigned in by this Government.'

https://mobile.twitter.com/JolyonMaugham...

Regarding prohibitive judicial review legal costs, the Good Law Project provides an excellent example:

'In the four cases we have brought its costs are £207k, £500k+, c£1m and £450k+... '

https://mobile.twitter.com/JolyonMaugham...

Tomorrow the government sends 12 lawyers to the hearing of an interim application.

https://mobile.twitter.com/JolyonMaugham...

Jason left an annotation ()

Yes, I've been keeping an eye on those developments too, and have been following Jo Maugham on Twitter for a little while.

The whole system is a joke, but the only people who are laughing are the government, public authorities and their cronies.

Jason left an annotation ()

I see the PHSO is refusing to deal with complaints due to any of the following:

• delays with complaint responses.
• delays in service delivery which are non-critical and are the result of an organisation coping with COVID-19.

So, it doesn't matter if the delay was intentional or avoidable, the PHSO will automatically reject your complaint it seems.

Further, it appears no adjustments are being made to the deadlines in which the complaint should be escalated to the PHSO.

So, true to form, the PHSO are bending over backwards for public authorities.

M Boyce left an annotation ()

https://ico.org.uk/media/action-weve-tak...

And now we have the above case just published by the ICO.

The simple and inescapable fact remains that the PHSO are functus offico when they have issued their FINAL report. The law should prevent them from any further action on that specific case - reviewing or re-opening the case. The PHSO have themselves publicly admitted that they are not acting in accordance with the law. So why is the ICO upholding this non-legal behaviour?

In this request the ICO rely on three exemptions: section 40, 42 and 44.

Section 40 concerns personal information. It must be possible to release some information on functus offcio without identifying anyone.

Section 42 concerns legal professional privilege. The PHSO have publicly stated that reviews of decisions are funcus offico and therefore not legal. How can the ICO claim it is in the public interest for public authorities to behave non-legally?

Section 44 concerns release of information allegedly about investigations. Not all information on functus offcio was obtained for the purpose of an investigation.

What is the point of the law if authorities can just ignore it as and when they choose?

Jason left an annotation ()

Yes, you make compelling arguments, M Boyce.

I am also at a loss as to why personal information cannot be redacted. Indeed, this happens all the time when one makes subject access requests.

Do you know if the ICO actually identified any personal information in any documents which relate to the request in the first instance, or whether they just took the PHSO decision etc. at face value?

We also both know that the ICO will close ranks with public bodies, and they will essentially just rubber stamp their decisions, whilst looking the other way in terms of their dubious conduct. I also suspect the likes of the PHSO are alive to this fact, together with the fact that they know you want to publicise/gain any details which adds credence to the fact that they may be acting unlawfully. Clearly there is an intention to make this is as difficult for you as they can, particularly given the seriousness of the consequences if you were able to prove, without doubt, that the review process was/is unlawful.

Maybe crowd funding a JR may be worth thinking about. I’m sure there are many profoundly aggrieved people who may want to contribute. The only problem is, given the scale and seriousness of the problem, any litigation could easily reach 500k or more in terms of costs, though you may be able to get a cost capping order.

Jason left an annotation ()

Incidentally, the Government is trying make JRs more difficult to bring, including making them more costly (as if things weren't bad enough). See around 5:45 into the below video:

https://www.youtube.com/watch?v=ERkU9FW5...

M Boyce left an annotation ()

Thanks Jason.

You talk about proving that the PHSO is acting unlawfully. I have sent voluminous evidence on this fact to the FTT, and of course it's not just me saying that the PHSO review/re-opening process is not lawful, the PHSO say it themselves!
In the PHSO December 2017 Board Minutes it states in paragraph 12.8:

'Karl Bannister [the senior lawyer at the PHSO] explained that our legislation did not allow for reviews.'

We have it from the horse's mouth.

Statute law does not allow for reviews/re-openings and case law has proscribed such behaviour.

Crowd funding is certainly an idea to consider.

The proposed reforms of JR are also worrying. Yes JR is difficult enough, and I speak from experience, but the plans to make it more difficult are a clear attempt by the Government to further silence those who are not rich. It must be said that judges are only interested in how much money you have and not the merits of your case. Fancy lawyers are like peacocks that flatter the eye of the judiciary.

M Boyce left an annotation ()

https://informationrights.decisions.trib...

And then we have the above case from late last year.

The judge says:

'...I am puzzled as to why the PHSO did not just get hold of the documents from the LGSCO and pass them over to Mr Mc Dougall, thereby saving a great deal of unnecessary time and expense.'

Anyone who has had any dealings with the PHSO would not be puzzled by the PHSO's deeply obfuscatory, unhelpful and wasteful actions - it is what they do.

And anyone who has had any dealings with the ICO would not be puzzled to find them four square behind their friends, the PHSO, in supporting such obfuscatory, unhelpful and wasteful actions.

Jason left an annotation ()

Yes, it does seem they are up to no good.

You refer to the below Board Minutes:

'Karl Bannister [the senior lawyer at the PHSO] explained that our legislation did not allow for reviews.'

My interpretation of that is because there is no statutory provision which allows for the PHSO to conduct reviews, they are acting unlawfully in respect to the same. However, could it also in any way be interpreted as although there is no statutory provision in respect to PHSO reviews, the PHSO is still able to exercise its powers in respect to the same?

Do you know in what context that was said?

Yes, the case law seems to support your argument further.

Maybe you could crowd fund the opinion of a QC who is an expert in public law? If that is successful, it would add further credence and merit in respect to crowd funding a JR etc.

Yes, I totally agree with your comments regarding the proposed reforms of JR.

Yes, the PHSO is most certainly deeply obfuscatory, unhelpful and wasteful. I was also thinking that another reason for this may be, particularly when it comes to complaints against the NHS, it could open the door to a negligence claim. Usually the PHSO is obliged to get an expert opinion in regards to clinical errors, and this could be very helpful in terms of a clinical negligence claim. Of course, the last thing our rotten government wants to do is aid negligence claims against itself.

M Boyce left an annotation ()

'Karl Bannister [the senior lawyer at the PHSO] explained that our legislation did not allow for reviews.'

You state that:

My interpretation of that is because there is no statutory provision which allows for the PHSO to conduct reviews, they are acting unlawfully in respect to the same. However, could it also in any way be interpreted as although there is no statutory provision in respect to PHSO reviews, the PHSO is still able to exercise its powers in respect to the same?

Do you know in what context that was said?

The context was a discussion of the PHSO review process.

Because there is no statutory provision the PHSO has no power to conduct reviews/re-openings of its final reports. Of course it continues to do just that, but its actions are ultra vires - beyond their legal powers and therefore not legally allowed for.
There is a distinction between illegal and not legally allowed for, but it must also be stressed that there is case law (Ex Parte Monica Dyer, 1993) with regard to the PHSO re-opening of its final reports - that case law very clearly proscribed such action.
The PHSO have argued at length that a review is not the same as a re-opening. They would say that and I completely disagree, but ultimately that is for the Tribunal to decide. I have argued that there is at least a significant overlap between a review and a re-opening.

If the Tribunal agree and find that reviews are simply a form of re-opening a final report then this also transforms not legally allowed for behaviour - which is itself completely unacceptable - into illegal behaviour -by virtue of the PHSO not acting in accordance with case law.

So the PHSO's actions are either not legally allowed for - acting outside of statutory provision, or are illegal - acting against case law.

As I've said many times before, I am not against final reports being 're-investigated' where warranted, but this has to be legal, simply because when an authority acts in a way that is either ultra vires or is plainly illegal then that has very serious consequences for the complainant in terms of further legal action and also the way and extent that any re-investigation is and can be conducted.

The PHSO has had ample time to get their house in legal order, and it would be a relatively simple thing to do, but they have repeatedly turned a blind eye to this issue.

Jason left an annotation ()

Yes, I vaguely remember a discussion about the reopening of cases and reports on the other thread.

It does sounds like you’ve got many compelling arguments there. It is a damn shame it is taking so long for the Tribunal to make a final decision here.

I think if the review process scuppers an action etc. then it is no surprise that the PHSO is happy to look the other way.

M Boyce left an annotation ()

It is indeed a great shame this case is dragging on for so long. I have researched the FTT website have only found one other case with such a similarly long delay (so far) of five months from hearing to promulgation - Gillian Weston EA/2018/0227. Remember as well that my case had been with the Tribunal for a long 18 months before the hearing.

Jason left an annotation ()

Hopefully that means it is being given full and proper consideration, but we can only hope.

Keep us posted.

Nicholas Wheatley left an annotation ()

Slightly off topic but David Allen Green is writing an article on the PHSO and looking for information from people who have experienced the service. Would be useful if anyone can contribute.

https://twitter.com/davidallengreen/stat...

M Boyce left an annotation ()

Thanks Nicholas

This could certainly be a very useful contact, and I have put his name in my little black book. I would be happy to help him with his research.

Nicholas Wheatley left an annotation ()

Thanks Mark.

Rob Behrens is giving evidence online to the Pascoe Hearing on Southern Health on Friday if anyone is interested.

You have to apply for a link in advance. Details can be found here.

https://www.england.nhs.uk/south-east/pu...

M Boyce left an annotation ()

PACAC's response to my recent email to them below.

'The Committee have received both the Government’s response and the PHSO’s response to its report, however both must be reviewed and agreed for publication by the Committee before they can be made public. The first opportunity for this to take place was at this morning’s sitting of the Committee.

The responses are expected to be published as a Special report of the Committee on Tuesday 20th April and from then, will be available to view on the Committee’s website.'

J Roberts left an annotation ()

Thanks for the information. I'll keep an eye out!

M Boyce left an annotation ()

The Government's and PHSO's responses to the PACAC Report are now available on the PACAC website.

As fully expected, the Government have again stated that crucial PHSO legislative reform is not of any interest to them: they say they have got more important things to do.

This clearly shows the Government's contempt for ordinary people and how Government departments (including the NHS) frequently do them real harm with total impunity.

J Roberts left an annotation ()

'... there are no plans to reform the Ombudsman system up to and including 2023–24. We will nonetheless carefully consider the committee’s findings and any future opportunities.'

https://committees.parliament.uk/publica...

M Boyce left an annotation ()

The Government have absolutely no intention of allowing legislative reform of the PHSO. This reform has been called for for the last FIFTY YEARS (50 years!) and every year the Government comes up with some excuse as to why it does not have the time to reform the legislation.

A more effective PHSO is the last thing any government wants - they simply don't want to be held to account for anything that goes wrong.

It is also the case that PACAC and the PHSO also don't really want reformed legislation either. There is no need for an amalgamation of the PHSO and the Local Government Ombudsman to achieve the desired reform - simply amend the existing legislation with statutory instruments.

It is clear that Mr Rob Behrens just cannot be bothered, because if was really bothered he would have used his considerable power to effect this change already, instead of sitting on his hands waiting for a government who are just waiting for Godot.

Brenda Prentice left an annotation ()

I saw 'Waiting for Godot' with my daughter 40 years ago....so yes that's about right, what to do....?

Our democracy is supposed to be the best in the world, God help the rest...as for corruptions, that's where we really excel! Well the Gov does, and BOJO is there...I despair.

J Roberts left an annotation ()

Could an ICO employee be dealing with your request?

'I will refer your offer of a secondment to our HR Dept who may be in contact with you to obtain further details.'

https://www.whatdotheyknow.com/request/c...

M Boyce left an annotation ()

Wow J Roberts, this really is incendiary stuff.

The 'independent' PHSO asking for staff from the 'independent' ICO.

Do they not see what this looks like?

The ICO already investigate the PHSO and vice versa, and now they are swapping staff like smarties at a kids birthday party.

This information could be very useful for my present case - unless the ICO lawyers threaten me with further contempt of court for looking at this information you have obtained!

M Boyce left an annotation ()

Aside from the obvious mutual bias issue of the PHSO/ICO staff swapping roundabout, what about the supposed staff shortages at the ICO? The ICO have repeatedly said they cannot adhere to the law because of their own staff shortages. Well is it any wonder when half their staff are working for the 'independent' PHSO?

You just couldn't make it up.

J Roberts left an annotation ()

M Boyce,

I share your concerns.

We do not know whether the offer was taken up, but I find it hard to believe that such an offer would have been made by the PHSO on the off chance. And your point about the ICO having staffing difficulties of its own is a good one. Also, what does a secondment mean during lockdown? The idea of a regulator providing staff to a body it oversees does not smell right. Perhaps the ICO and the PHSO, however, hold information that would dispel our concerns.

M Boyce left an annotation ()

Yes it would be informative to find out much more.

Why and how have the PHSO lost half of its staff? The ICO rightly asks this question, and presumably they received a reply. Why is this reply not included in the ICO's response to your request?

Most PHSO staff, like the ICO staff, will be working from home. So why has the staff halved? I can't believe that half the staff have got Covid. This would make it the highest infection rate in any company where most of those staff are working from home. What are they doing?

We have a right to know.

i asked similar questions of the ICO who claimed they could not meet their legal obligations because of reduced staff numbers (even they didn't claim a fifty percent reduction!), and they just accused me of being vexatious for enquiring about this.

Jason left an annotation ()

If there was ever any doubt that the PHSO and ICO scratch each other's backs, then this latest development says it all.

M Boyce, you quote:

"A more effective PHSO is the last thing any government wants - they simply don't want to be held to account for anything that goes wrong.

It is also the case that PACAC and the PHSO also don't really want reformed legislation either. There is no need for an amalgamation of the PHSO and the Local Government Ombudsman to achieve the desired reform - simply amend the existing legislation with statutory instruments.

It is clear that Mr Rob Behrens just cannot be bothered, because if was really bothered he would have used his considerable power to effect this change already, instead of sitting on his hands waiting for a government who are just waiting for Godot."

I couldn't agree more. The government knows full well that before you can challenge the decisions etc. of public bodies via judicial review, you would need to exhaust all lines of complaint/ADR. This is where the handy PHSO comes in. Of course, by the time the PHSO has allegedly considered to the complaint, including any alleged review in respect of the same, it is so bent out of shape and whitewashed that one's prospects of recourse to the judiciary are extremely limited and immensely risky.

Moreover, complainants are lulled into a false sense of security by complaining to the PHSO of poor care and treatment by way of the NHS, whereas they may otherwise be inclined to take out clinical negligence insurance and/or pursue a clinical negligence claim.

M Boyce left an annotation ()

If you've got a complaint against a government department then you've got multiple hurdles and many years of stress to contend with. Years of stress with the PHSO, then years of stress with the ICO, and then years of stress with the First-tier Tribunal. It has now been almost 27 months since my case arrived at the FTT, and there has been nothing but delay after delay after delay.

The FTT keeps saying that justice delayed is justice denied, but then they keep delaying and delaying and delaying. Where is the justice in that?

Jason left an annotation ()

Agreed, M Boyce.

In my experience, I have suffered more than stress, but soul-destroying frustration and annoyance. I really admire your tenacity in regards to your situation, and feel you are really doing something very noble which is likely going to benefit the ordinary downtrodden person.

I can sympathise a little with the FTT's position, mainly due to all the Tory cuts the judiciary has subject to, and because of the pandemic, but I think a delay of the kind you have alluded to is still unacceptable.

M Boyce left an annotation ()

Yes Jason, I don't doubt for one minute that you've had a terrible experience with the PHSO and other authorities and I completely empathise with you. The Prime Minister claims that people have no interest in openness and transparency from the Establishment. I dare he's right in many cases - but not all.

The inordinate delay from the FTT has been made much worse by the game-playing by the PHSO and the ICO. Together they have fought to frustrate the Tribunal process by not providing information and attempting to block the Tribunal from receiving this information.

My main frustration with the FTT is that they know that it had already taken nearly two years, due to the above game-playing just to get to the hearing, so I would have hoped that they might then have tried to decide the case fairly quickly thereafter, instead of delaying it for a further 7 months and counting.

M Boyce left an annotation ()

Today I received a deeply worrying communication from the GRC:

'The delay in the final decision [EA/2019/0032] is due to it being checked for any accidental disclosure of information by the PHSO as they are the holders of the disputed material.'

Yes, you really did read it correctly: the PHSO are checking the Tribunals decision and I am having to wait indefinitely for the privilege!

All parties should receive the decision at the same time.

One party should not be checking it before it is released to the other parties.

This has sent my blood pressure through the roof.

J Roberts left an annotation ()

'Decisions

38.— (1) The Tribunal may give a decision orally at a hearing.

(2)Subject to rule 14(10) (prevention of disclosure or publication of documents and information), the Tribunal must provide to each party as soon as reasonably practicable after making a decision (other thana decision under Part 4) which finally disposes of all issues in the proceedings or of a preliminary issue dealt with following a direction under rule 5(3)(e)—

(a) a decision notice stating the Tribunal's decision;

(b) written reasons for the decision; and

(c) notification of any right of appeal against the decision and the time within which, and manner in which, such right of appeal may be exercised.

(3) The Tribunal may provide written reasons for any decision to which paragraph (2) does not apply.'

https://assets.publishing.service.gov.uk...

I have a distinct memory of a UT decision in which reference was made to the decision being first passed to the DWP to check for mistakes before publication.

M Boyce left an annotation ()

In relation to the UTT in the FAQ's it clearly states that:

'Decisions are issued to all parties at the SAME time, and only in writing.'

Why should the FTT behave differently?

Why can't the FTT check the decision for accidental disclosure instead of giving it to the PHSO to do?

The PHSO wouldn't want anything at all disclosing - not even the decision, so they will drag their checking exercise out forever.

By giving the PHSO the decision before me the PHSO will be able to fully prepare their legal appeal well before I could. This is deeply unfair, and puts me at a real disadvantage.

Jason left an annotation ()

This is very worrying news, and certainly explains a lot.

Yes, this could well be a strategic move on the part of the PHSO, especially if the decision is unfavourable to them.

I certainly hope that the FTT has the power to take action should the PHSO just sits on its hands, which appears to be the case.

M Boyce left an annotation ()

Yes Jason it is deeply worrying.

I don't think anyone could convincingly argue that what the Tribunal have done is anything but a really bad idea. It goes against the very essence of natural justice, that is that the process should be fair to all parties.

Even if the PHSO could be trusted to be fair (and there is absolutely no chance of that), i am sorry to say that I have now lost confidence in the Tribunal process.

All parties should receive the decision at the same time. If this does not happen, the decision becomes fatally flawed because of the obvious inference of bias - either real or perceived.

J Roberts left an annotation ()

I found this:

'As it was initially conceived, the practice of circulating judgments to counsel in draft was aimed at catching typographical errors and minor flaws. This was so that the delay caused by the need to correct such flaws after a judgment had been handed down or given orally could be avoided. This is plain on the face of the first Practice Statement with its references to “typing errors, wrong references and other minor corrections of that kind”.[28] While counsel have certainly recommended more substantive changes to draft judgments, courts continue to emphasise that the practice is aimed mainly at intercepting and correcting errors that are cosmetic and technical so that the parties might be spared unnecessary delays and expense.'

'Before turning to some of those cases, however, it is useful to reflect again upon the implications of the recent UK Supreme Court’s 2013 decision in Re LB and its overruling of In re Barrell. The effect of that decision has been to lower the threshold for substantive reconsideration, by judges, of their own decisions before they are perfected. This effect has been brought about by removing the requirement that such reconsideration be permitted only in “extraordinary circumstances”. Arguably, the door to invitations by counsel for substantive reconsideration of draft judgments has been opened wider by Re LB. Pre Re LB case law must, for this reason, be treated with some caution inasmuch as the threshold for permissible reconsideration was, then, higher and more unyielding.

'Furthermore, that case law makes it distressingly plain that when counsel engage with the court for the purpose of persuading it to change a draft judgment cosmetically or substantively (or persuading the court to resist opposing counsel’s entreaties to do so), it is indeed a requirement of the law that those communications be strictly confidential.'

https://ouclf.law.ox.ac.uk/paragraph-168...

M Boyce left an annotation ()

Thanks J Roberts, you always manage to pull a juicy rabbit out of the hat.

This paper discusses something that I dare say that most of us were unaware of: judges ask for comments on their draft decisions from the legal counsel of the respondents to an appeal. This puts appellants at a very serious disadvantage in the whole process of delivering 'justice'.

In the conclusion it states:

'The current practice under which English judges ROUTINELY circulate their judgments in draft for comment by legal counsel.... largely offset by damage to the open court principle [open justice] and damage to public perceptions of the integrity of the administration of justice in England.'

The above is bad enough, but it is made even worse by a judge sending the draft to ONLY the respondents.

I have asked the ICO to confirm or deny whether the Tribunal have also sent them a copy of the final decision/final draft. So they far they have not responded. Their silence must mean that they too have received the final decision.

Jason left an annotation ()

This is profoundly concerning.

I totally agree, M Boyce. This flies in the face of the principles of natural justice in many respects; any submissions and communications sent to a judge should, in theory, also be sent to the other side, especially when it comes to something as significant as persuading a judge to tinker with a final judgment, and no party should be put in a more favourable position than the other (the FTT should ensure the parties are on an equal footing). The effect of this is, as you have rightly pointed out, the PHSO now also have a major head start in respect to any appeal.

Moreover, the PHSO can now, on the face of it, happily delay matters for as long as they think they can get away with it and/or their appeal arguments etc. are in place.

If the FTT rules and/or case law allows this to happen, I am at a complete loss as to how this can be construed as fair.

M Boyce left an annotation ()

I agree it is profoundly concerning.

The Tribunal process has to be fair and it has to be seen to be fair. I don't know whether the Tribunal are actually being unfair, but as I said before, and others far more important than me have said, if there is a CREDIBLE perception of bias then this irretrievably condemns any decision.

On the evidence so far, there MAY be a credible perception of bias. I may be wrong, but I am just going on what I have been told by the Tribunal.

What is perhaps most surprising is that the Tribunal have told me about this in the first place, when they could have just not told me about it. I can only infer that they do not see a problem with all this. But I am also surprised that they might not anticipate that I would see a problem with it, and I think most other appellants would see a problem with it.

Even if this has all been done with the best of intentions by the Tribunal, and It would be astonishing if that were not the case, it simply cannot get round the issue that the PHSO HAVE now been put at an unfair advantage in the Tribunal process - for all the reasons we have discussed so far.

It is difficult to know where to go from here. I have asked the ICO to simply let me know whether they too have received the decision. They have so far not replied. If I was the solicitor at the ICO I would want to confirm or deny this at the earliest opportunity - not remain silent on the matter.

I will contact the Tribunal early next week to ask them to fully explain their action and to take note of my very serious concerns.

J Roberts left an annotation ()

I've requested information from the ICO:

https://www.whatdotheyknow.com/request/c...

Had you been represented by a lawyer would they have received a copy? When you think that things can't get any worse for unrepresented appellants, guess what...they do! And everything is confidential. The draft decision could be radically different from the perfected one, and you'd be none the wiser.

Maybe the ICO's response to my information request will shed some light on the matter. On its face, the practice smells bad. I consider it implausible that the PHSO will be reading the draft decision simply to correct minor spelling errors and the like.

M Boyce left an annotation ()

The information you have requested could be very informative - if the ICO provide it.

The ICO have still not replied to my question of whether they too have received the draft decision. They have form in trying to hide information. As part of my Appeal EA/2019/0032 I asked them to let me know whether the PHSO had sent them external legal advice which I knew that the PHSO possessed. They refused to let me know, stating that they could not do this. They were later forced to do so via the FOIA.

I don't trust the PHSO. I don't trust the ICO. And now, I'm not sure whether I can trust the First-tier Tribunal.

I've had considerable experience with Tribunals, but have never experienced anything like this.

M Boyce left an annotation ()

Just a quick update on Appeal EA/2019/0032. It has, as expected, been dismissed by the Tribunal.

i cannot copy that decision here now, but it will be published shortly on the FTT website.

I will, for what it is worth, be making an appeal to the UTT, which will include the following points:

The Tribunal stated that the PHSO sent them very little relevant information - all the emails and the external legal advice was all irrelevant, and the Tribunal did not bother to ask for this information.

The Tribunal 'rejected' the ICO's 'very exceptional argument' but stopped well short of saying that it was error of law. It was a clear error of law and the Tribunal should have allowed the appeal at least because of this.

In the conclusion the Tribunal state that the PHSO and the ICO made representations to the Tribunal on the draft decision as to what should and should not be disclosed to me. This is contrary to the principle of open justice and it condemns the Tribunal's decision.

The Tribunal process has now been proved to be utterly unfair: it fails to request crucial information when this has failed to be provided; it fails to address clear errors of law; and it fails to provide a fair and open process for appellants.

J Roberts left an annotation ()

M Boyce,

Thank you for letting us know of the not unexpected outcome.

You have shone a bright light on how the FOI regime works in practice in respect of the exemption under s42 FOIA, and you have also revealed much of the relationship between the PHSO and the ICO that may surprise many. Only recently you revealed the practice of how draft decisions are circulated to all parties other than the appellant - an eye-opener!

Related requests:

https://www.whatdotheyknow.com/request/c...

https://www.whatdotheyknow.com/request/c...

Information on circulation:

http://disputeresolutionblog.practicalla...

Had you asked for information that was already publicly available you would have been on stronger ground (see comment above of 5/12/20 on the McDougall case)!!

I look forward to reading the decision.

M Boyce left an annotation ()

Thanks for your support J Roberts.

For some reason I cannot copy and paste the whole decision, but here is the FTT deliberations section:

'73. We are grateful to the parties for their detailed and careful submissions. We consider
it appropriate to follow the Commissioner’s suggestion of deciding as a preliminary
issue the scope of the Appellant’s information request and therefore the scope of this
appeal.

Scope of information request

74. We have first considered whether a distinction can properly be made between a review
carried out by the Customer Care Team and the reopening of a decision and/or
consideration of remedies that might follow the identification of an error in a decision.

75. We consider such a distinction in internal PHSO thinking to be apparent from the
wording used in the Board Meeting Minutes of December 2017, which refers to “the
legal status of the customer care team reviews, and the basis for such a review if it did not
constitute a new decision”.

76. We satisfied that such a distinction is also apparent from the wording used by the
PHSO on its website when describing the review process:
“If you think we made the wrong decision
Our decisions are final and there is no automatic right to a review. If you think we came
to the wrong decision, it is best to discuss this with the caseworker who handled your
complaint first. If they or their manager cannot resolve things they will explain the next
steps and can send you the relevant forms to fill in and return to our review and feedback
team ...”

77. A distinction between PHSO processes is also recognised to some extent by the
Appellant in his submissions. These contend that the review process has become
conflated with the process followed by the PHSO when reopening decisions process,
and also describe the review process as an unnecessary first step.

78. We note in passing that the language used by the PHSO to describe the review process
has changed over time, which may well have contributed to confusion in some
quarters. We agree with the Appellant that there is a strong public interest in achieving
and maintaining transparency with regard to PHSO powers and processes and have
considered this further below.

79. However, having considered all of the information that has been made available to us,
both in open and closed, we are satisfied that it is proper to draw a distinction between
a review carried out as part a feedback process by the Customer Care Team (the
responsible team at the date of the Appellant’s request), and other PHSO post-decision
processes, such as a decision to reopen an investigation or to consider remedies in the
event of a known material error. We note that these processes may follow a Customer Appeal
Care Team review, but that there is also scope for these distinct processes to be
triggered by other means.

80. We therefore conclude that the scope of the Appellant’s information request was
restricted to information about the review process carried out by the Customer Care
Team, and that only information which relates to the legal status of this process is in
scope for the purposes of this appeal.

The Closed Bundle

Emails

81. Having considered the closed material with care, we agree with the Commissioner’s
submission that the emails included in the closed bundle are not in scope for the
purposes of this appeal.

External Legal Advice

82. We are satisfied that the external legal advice, which was not considered by the
Commissioner during her investigation, does not relate to the review process carried
out by the Customer Care Team and is therefore not in scope.

83. We make no findings as to whether LPP may have been waived in respect of this
material.

Relevant closed material

84. We are satisfied that the undated document comprising pages 1 – 10 of the closed
bundle is in scope of the Appellant’s information request. We find that this document
includes “advice as to what should be prudently and sensibly done in a relevant legal context
but conclude that the nature of this document is such that not all of it should be viewed
as attracting LPP and therefore as coming within the Section 42 exemption.

85. The sections of this document that we consider not to be subject to LPP are as described
in paragraphs 2 and 3 above, namely:

• Page 1 of the document, which does not appear to contain any LPP material, but
which provides a helpful overview of the PHSO’s processes at the date of the
information request. We consider this to set the review process in context to some
extent and conclude that this information should be made available to the
Appellant, to help illustrate the legal status of the post-decision review process.

• Paragraph 5 of page 2 , and the headings at the top of pages 3 and 7, also contain
no LPP material and go no further in relation to the existence of legal advice than
is apparent from the open papers. We conclude that this information should also
be made available to the Appellant.

3 Balabel v Air India [1988] Chapter 317 approved in Three Rivers (No 5)Appeal Number: EA/2019/0032

86. We have reached this conclusion notwithstanding our application of the principle
identified in Balabel v Air India that not every communication needs to expressly seek
or convey legal advice in order to be covered by legal advice privilege.

Public interest test

87. We are satisfied that the remainder of the material in the relevant closed document is
subject to legal advice privilege and therefore comes within the Section 42 exemption.
We have therefore gone on to consider the public interest test.

88. The Tribunal’s usual starting point in this context is as set out in Bellamy v
Information Commissioner & Secretary of State for Trade and Industry
(EA/2005/0023), which was endorsed by Wyn Williams J in DBERR v O’Brien v IC
[2009] EWHC 164 (QB). This acknowledges the general importance of LPP
communications, in relation to which
“the in-built public interest in non-disclosure itself carries significant weight which will
always have to be considered in the balancing exercise once it is established that legal
professional privilege attaches to the document in question… [it] is acknowledged to
command significant weight”.

89. However, we reject the view expressed by the Commissioner in paragraph 16 of the
Decision Notice that only in very exceptional cases can the inbuilt public interest in
LPP be overridden when considering where the public interest lies. In our view every
case must be considered on its own merits, and it would be an error to seek to limit the
application of the public interest test in relation to LPP material so as to give rise to a
presumption that only in very exceptional cases would the public interest be in favour
of disclosure.

90. We note that it is not the role of this Tribunal in this case to consider the lawfulness or
otherwise of the review process, or of any other process carried out by the PHSO.

91. As expressed by this Tribunal in the case of Bellamy v Information Commissioner,
there may be circumstances in which the Tribunal might reach a different conclusion
following the application of the public interest balancing exercise, for example in a case
where the legal advice was stale or no longer applied at the date of the public
authority’s response to an information request. Alternatively, the Tribunal might
reach a different conclusion in circumstances where the contrast between legal advice
and public policy gave rise to significant additional public interests.

92. We have considered with care all of the public interest arguments in favour of
disclosure put forward by the Appellant in the circumstances of this case. As
previously noted, we accept his submissions that there is a strong public interest in
transparency in relation to decisions made and processes followed by the PHSO.
However, we accept the Respondents’ submissions that publication of the withheld
information is unlikely to achieve this aim. This is because, as noted by both
Respondents, this legal advice is just one person’s opinion as to the legal status of the
review process. It is neither binding and not representative of a definitive view.

93. While the withheld information might help explain the relationship of the Customer
Care Team’s review and other PHSO processes, we are satisfied that transparency in
this context is best achieved through the public statement of policy on the PHSO’s
website, in relation to which further clarity can be obtained by contact with
experienced PHSO caseworkers.

94. Having considered the nature and content of the withheld material, we find that
publication would contribute relatively little to the important public interest in
transparency in this context. We have therefore afforded limited weight to this public
interest when reaching our decision.

95. We have also considered the Appellant’s submission regarding the freestanding public
interest in transparency in the context of the use of public funds. We accept that this
is an important public interest and have reflected this when reaching our decision. We
note that the PHSO does not accept the Appellant’s submission as to the cost of the
Customer Care Team review process, but find that there must nevertheless be some
additional cost involved, which is paid for by members of the public.

96. We also accept the Appellant’s submission that the public interest in understanding
the PHSO’s processes is likely to be broad, due to the number of people who could
be potentially affected by a PHSO decision. We consider this to be an important
public interest in the context of this case.

97. We have considered but rejected the Appellant’s submission that there would be no
prejudice to the quality of legal advice given to public authorities should the requested
information be published. We are satisfied that this issue has been considered at
length by the senior courts, and that the importance of maintaining confidentiality in
legal communications is reflected in the inbuilt public interest and the significant
weight afforded to the maintenance of LPP, referred to above. We accept the
Respondents’ submissions that knowledge that legal advice might be made public is
likely to restrict both the advice given and the nature of the advice requested by public
authorities.

98. We have considered with care whether disclosure of the requested information would
cause prejudice to the PHSO in the conduct of future legal challenges. We conclude
that it would. We are satisfied from the information before us that, at the date of the
PHSO’s response to this information request, there was a persisting interest in the
Customer Care Team’s reviews and other processes, and that there may have been (or
may still be) legal proceedings in contemplation. We therefore accept the PHSO’s
submission that disclosure of the requested information is likely to prejudice its
conduct of any such legal challenge. In reaching this conclusion we have considered
and applied the guidance provided by the Upper Tribunal in the case of Savic:Appeal Number:
“35. ... we take the view that if the information sought under FOIA is relevant to, or
might be or might have been of use in, existing, concluded or contemplated legal
proceedings this adds to the weight of the factors against disclosure because,
although FOIA is applicant and motive blind, the disclosure would effectively deny
the public authority to whom the FOIA request is directed its right as a litigant in
proceedings to refuse disclosure and so cause damage to the manner in which
proceedings are, have been or might be conducted, and thus to the administration
of justice”.

99. As a consequence, we have afforded significant weight to this public interest against
the publication of the requested information.

100. Having considered all of the submissions made by the parties in relation to the public
interest for and against publication, we have concluded that, while the Appellant has
presented some strong arguments in favour of disclosure, these do not amount to
equally strong countervailing considerations so as to override the inbuilt public
interest against disclosure of LPP information. We therefore uphold the PHSO’s
reliance on the Section 42 exemption, save as set out above.

Has Legal Privilege Been Waived

101. We have considered with care the documents provided by the Appellant, in particular
documents 5 and 20. We adopt the Information Commissioner’s analysis of these
documents set out at paragraphs 4 to 6 of her 21 May 2019 submissions. We are
satisfied that the documents produced by the Appellant concern the PHSO’s processes
once the Customer Care Team’s review process has been carried out. Having reviewed
the withheld information, we have concluded that none of the documents we have
seen waive LPP in the context of this information to any extent.

Conclusion

102. We therefore find on balance that the public interest in maintaining the exemption set
out in Section 42(1) FOIA outweighs the public interest in disclosing the remainder of
the withheld information contained in the closed bundle.

103. In the normal way, a copy of this decision was sent to the Commissioner and to the
PHSO for them to check the draft and make representations as to whether any parts of
the decision should not be disclosed. The version of the decision provided to the
Appellant and promulgated generally will have been redacted and/or edited if
necessary, in the light of such representations.

104. Save as directed above in the context of additional disclosure to be made available to
the Appellant, any Rule 14 Order made by the Tribunal in relation to information
received in the course of these proceedings should continue without limit of time.

M Boyce left an annotation ()

I will most certainly be appealing this decision to the UTT, and on several fronts.

The first of these fronts is the inescapable PERCEPTION of both bias and unfairness.

Bias -

In EA/2017/0232 O'Hanlon v ICO, it states:

'...under public law APPARENT bias is enough to condemn a decision....the question is 'whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased.'

In my case the fair minded observer could not fail to conclude that the decision of the decision-maker (is this the judge or the ICO/PHSO?) was biased. Allowing the PHSO and the ICO to decide the case appears deeply biased to me. Also is the PHSO not biased towards itself?

The case law on the subject of bias includes 'Bubbles & Wine Ltd v Lusha [2018] EWCA. in paragraph 17 it states:

'bias means a prejudice against one party or its case for reasons unconnected with the legal or factual MERITS of the case.'

The judge in my case gave the final decision to the ICO and the PHSO to decide what the decision should be.

Fairness -

Article 6 of the European Convention on Human Rights:

'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a FAIR and public hearing within a reasonable time by an independent and iMPARTIAL tribunal established by law.'

Giving the final decision to the ICO and the PHSO to decide what information should or should not be disclosed could never ever be seen as fair.

M Boyce left an annotation ()

The second front of appeal to the UTT will be on the clear ERROR OF LAW in the ICO's DN.

In paragraph 89 of my appeal decision EA/2019/0032 it states that the ICO made an 'error' in its 'extreme exceptionality argument'. But, what it doesn't conclude is that this 'error' is an error of law. The distinction is absolutely vital.

In Appeal EA/2020/0224, paragraph 30 it states:

'..If the DN contains an error of law, the FTT MUST allow the appeal and MUST substitute the notice.'

Incidentally, and importantly, both these decisions were made by the SAME judge. They are clearly contradictory if the 'error' refers to an error of law.

The FTT have partially allowed my appeal and have substituted the notice - but on completely different grounds to the above.

The 'extreme exceptionality argument' is a clear error of law - as established by both statute and case law - and the UTT must now further address this issue in my case.

M Boyce left an annotation ()

The third front of appeal to the UTT will concern the Tribunal not having regard to all the material evidence - another error of law.

In the decision the Tribunal say that the emails were not in scope and the external legal advice was not in scope.

I repeatedly asked the Tribunal to ensure that the PHSO had sent them ALL the in scope information.

On the balance of probabilities - which is the legal test - is it likely that the email chain on the subject on the PHSO review process stops dead mid-way through discussion of this important issue, which it does? On the balance of probabilities it is not likely.

On the balance of probabilities is it likely that the ICO posses no external legal advice on their review process, bearing in mind that they themselves conclude that the review process is not legal? On the balance of probabilities it is not likely.

But what condemns the FTT decision most on this front is that it has not bothered to inquire, despite my exhortations, as to whether both the above communications were in the possession of the PHSO. It is simply not fair to decide a case without the relevant information. You cannot FAIRLY decide a case on material which is deemed to be irrelevant (not in scope).

If the evidence you require is apples, but then the PHSO send the Tribunal bananas, is that fair?

Jason left an annotation ()

M Boyce, I have just been catching up on the news, and am very sad to learn of this outcome, which, as alluded to above, is not altogether unsurprising.

What is somewhat positive, however, is that you have certainly given the PHSO etc. a bit of a bloody nose, so to speak, and the FTT have accepted some of your submissions. I think, given the fact that this was not a fair fight from the outset, you have done pretty well to have done that, so kudos to you.

Has or will the information that has or will be provided be of any use?

These are probably the most notable parts of the judgment:

At [92]:

“However, we accept the Respondents’ submissions that publication of the withheld information is unlikely to achieve this aim. This is because, as noted by both Respondents, this legal advice is just one person’s opinion as to the legal status of the review process. It is neither binding and not representative of a definitive view.”

At [94]:

“Having considered the nature and content of the withheld material, we find that publication would contribute relatively little to the important public interest in transparency in this context. We have therefore afforded limited weight to this public interest when reaching our decision.”

Do you think it is implied above that the legal advice opined that the review process etc. was lawful, or that it was unlawful, but of little relevance because it was only “one’s person’s opinion”? If the latter is true, isn’t this highly pertinent in regards to whether or not the PHSO are following their own legal advice, and isn’t there a strong public interest in the public knowing this?

I suspect the PHSO and their big wig solicitors have done a really fantastic job of persuading the FTT to decide or imply that your only option is a judicial review challenge, not least because they are abundantly aware of how inaccessible this is for the likes of the ordinary person.

Yes, you do appear to make some compelling arguments in terms of an appeal. With regards to the third front, which it seems you are doing anyway, one needs to be mindful of the fact that appeals in regards to findings of fact (perversity) are extremely difficult, but if the FTT made an error of law as opposed to an error of fact, then you probably have better prospects of success.

M Boyce left an annotation ()

Thanks Jason for your kind and supportive remarks.

I firmly believe that the FTT have not only let me down, but have let down everyone who cares about decency, fairness and justice.

Let me give you a concrete example of this and which will feature prominently in my appeal to the UTT.

My second front of appeal will concern the serious error of law in the FTT's decision regarding the 'extreme exceptionality argument'.

Both the ICO and the FTT are very keen to quote case law when it suits their case, but are equally keen to ignore it when it does not.

In paragraph 53 of my FTT decision EA/2019/0032 the ICO reference the case law of DBERR O'Brien v IC [2009] EWHC 164 as follows:

'...This decision confirmed that significant weight should be given to the inbuilt public interest in witholding LPP material, and that it would be an ERROR OF LAW for this Tribunal to fail to give significant weight to the inherent interest in non-disclosure.'

Quite right, and that is the case law.

And then in paragraph 89 of my FTT decision it states:

'....In our view every case must be considered on its own merits, and it would be an ERROR [note not an error of law] to seek to limit the application of the public interest test...'

You might think that an 'error' is the same as an 'error of law'. But it is not, because if it was the Tribunal would have had to have allowed my appeal and substituted the ICO's decision on this point of law. The same judge had previously stated in another decision that if a DN contained an error of law (not just an error) then that appeal must be allowed and the DN substituted.

All this comes down to the case law of DBERR O'Brien v iC [2009] EWHC 164 where it exactly states in paragraph 41:

'It is also common ground, however, that the task of the Tribunal, ultimately, is to apply the test formulated in section 2(2)(b) [FOIA 2000]. A person seeking information from a government department does NOT have to demonstrate that 'exceptional circumstances' exist which justify disclosure. Section 42 is NOT to be elevated 'by the back-door' to an absolute exemption.'

This is what both the ICO and the FTT have so cynically and calculatedly ignored. The case law is the law in its ENTIRETY - it is not to be cherry-picked by both the ICO and the FTT to fit their agenda.

I will not allow it. Will the UTT?

Jason left an annotation ()

Yes, it is a bit suspicious that that has been overlooked, and that the judgment has been worded in that way. I do wonder if the judge was exercising bias towards to PHSO and the ICO as they would obviously not be very pleased if they were compelled to disclose the requested information in full, and would undoubtedly throw all their resources (or the taxpayers' to be more precise) and the kitchen sink at an appeal.

M Boyce left an annotation ()

https://www.bailii.org/ew/cases/EWCA/Civ...

In my view the judge appears to have been biased towards the PHSO and the ICO. This perception of bias is further suggested by the judge asking the PHSO and the ICO to make representations on the draft decision.

The judge will obviously deny any bias, but I will never accept this process as fair - not a million years, and neither would any independent and fair-minded person.

In the above link it states in the addendum:

'I wish to add a few words to deprecate the practice which was adopted in this case of counsel writing to the judge, after a draft judgement has been provided, to ask him to reconsider his conclusions. It is a growing practice...'

It is also a disgraceful practice and one that now proves that litigants in person can have no faith whatsoever in the fairness and the impartiality of the FTT.

J Roberts left an annotation ()

M Boyce,

That's quite a find!

I agree with you on your point of apparent bias. Even if no representations were made by the PHSO or the ICO, the fact is that the judge invited them to make representations on the draft decision and not you. The term 'representations' is broad and, as the case you have referred to reveals, could involve a lot more than dotting the i's and crossing the t's. The danger of bias is very real indeed.

Thanks for exposing this practice.

Jason left an annotation ()

Yes, very well spotted, M Boyce. That is certainly a practice that is wide open to abuse (e.g. judges can exercise bias in secrecy and barristers can attempt to re-argue the issues etc. behind the other side's back).

M Boyce left an annotation ()

Happy to oblige J Roberts.

Now let's look at how the FTT have deliberately omitted evidence from the chronology in the decision, described as Tribunal Proceedings below.

The Tribunal's actions are disgraceful at the very best.

'Tribunal Proceedings

14. On 9 February 2019 the Appellant appealed to this Tribunal. He submitted detailed
grounds of appeal comprising 26 pages, the focus of which is the Commissioner’s
application of the Section 2 FOIA public interest test both in general and in the context
of his request. These grounds are considered further below.

15. On 11 March 2019 the Commissioner responded to the appeal and provided an open
and closed bundle of evidence. At around the same time the Appellant contacted the
Commissioner and the Tribunal to identify a further ground of appeal relating to
whether LPP had already been waived by the PHSO due to the pre-existing
publication of the part of the requested information.

16. On 14 March 2019 the Tribunal issued Case Management Directions, joining the PHSO
as a party to these proceedings at the public authority’s request. The Tribunal invited
the Appellant to make further submissions, setting out why, in his view, LPP had been
waived. The Appellant provided the requested further submissions on 29 March 2019,
in a document comprising an additional 52 pages.

17. The PHSO responded to both grounds of appeal on 9 May 2019, and the Commissioner
responded to the additional ground of appeal on 21 May 2019.

18. Also, on 21 May 2019, the Appellant alerted the Tribunal and Respondents to his
concerns that the PHSO had not revealed all of the information in the scope of his
request during the Commissioner’s investigation of his Section 50 complaint. The
Appellant highlighted external legal advice, the existence of which had been revealed
in a different FOIA request.

19. On 30 May 2019 the Tribunal issued further Case Management Directions, requiring
the PHSO to provide the Tribunal and the Information Commissioner with the
external legal advice and to make representations as to why it was not within the scope
of the request.

20. On 7 June 2019 the Appellant provided a third set of submissions to the Tribunal in
the form of an email. He then provided further additional submissions on 10 June
2019, in an additional document headed “Third Submissions”, comprising 22 pages
and supported by a number of additional documents.

21. On 2 July 2019 the Tribunal issued further Case Management Directions, confirming
that it had received the external legal advice, and requiring the Respondents to provide
submissions setting out why, in their view, this document was not in scope. The
Tribunal further directed that any such submissions should be made in open to the
extent possible.

22. On 19 July 2019 the Appellant provided a further set of submissions to the Tribunal
headed “Fourth and Final Submissions to the Tribunal”.

23. On 22 July 2019 the PHSO served further submissions.

24. On 23 August 2019 the Commissioner informed the Appellant that she intended to
serve additional submissions, setting out her view that the additional document was
not in scope. The Commissioner’s additional submissions were eventually served on
7 October 2019, following further correspondence and a Rule 14 application.

25. On 18 October 2019 the Appellant served a further four pages of submissions headed
“Very Last Submissions to the First-tier Tribunal”.

26. On 7 April 2020 we commenced a paper consideration of the substantive appeal,
pursuant to Rule 32. However, we concluded that some of the documents in the
supplementary bundle had not been clearly identified and it was therefore not always
apparent which document the Appellant was referring to in his submissions. We were
also not confident that all relevant submissions had been compiled.

27. Following further enquiries, the Tribunal reconvened on 27 October 2020 in order to
determine the appeal. Since then other commitments, including demands relating to
the global pandemic, have resulted in a significant delay in the Tribunal’s decision
being promulgated. I understand that this has been a matter of concern to Mr Boyce
for which I can only apologise.'

So what is the crucial information that the judge has omitted? Here we go.

On 26/05/20 the Tribunal issued CMD's which stated:

'...we are of the view that this appeal is NOT suitable for a decision on the papers...
The Tribunal's preliminary view is that the external legal advice referred to in the iC's submission's of 23 August 2019 IS potentially in scope of this request..'

On 27/05/20 the ICO informed the Tribunal that they would not take part in the hearing.

On 19/06/20 the Tribunal issued CMD's which stated:

'The Tribunal has received an email from the Second Respondent [PHSO] dated 8 June 2020.
By 13 July the PHSO should indicate whether he intends to attend the remote hearing.'

On 27/08/20 the Tribunal informed me that:

'The panel has no questions for you and, given that neither Respondent intends to attend the hearing could you confirm that you would still consent to a paper hearing?

I replied that I would still attend the hearing but would consent to the paper hearing.

On 18/10/20 I sent the Tribunal my very last submission and stated:

'If the Tribunal do concur with the Commissioner that the advice is not within scope, then at that point I would respectfully ask the Tribunal to invoke paragraph 16(1)(b) of the GRC Rules ordering the PHSO to provide the Tribunal with the in scope information.'

On 13/05/21 the Tribunal issued its decision and stated that the PHSO had not provided the in scope advice.

The Tribunal has failed to present a proper picture of the proceedings and it smells like it looks: bad.

J Roberts left an annotation ()

"'...we are of the view that this appeal is NOT suitable for a decision on the papers... The Tribunal's preliminary view is that the external legal advice referred to in the iC's submission's of 23 August 2019 IS potentially in scope of this request..'"

It's puzzling that something so revealing could be omitted from the decision. The ICO and the PHSO said they wouldn't attend a remote hearing and that was that. Case closed!

I found this:

At paragraph 24 of MH v SSWP (ESA)[2021] UKUT 90 (AAC) Judge Wikeley approvingly quotes Lord Kerr:

"It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side made behind the back of the other."'

https://assets.publishing.service.gov.uk...

M Boyce left an annotation ()

Thanks J Roberts, there's some excellent quotes in this case.

I'm completely aware that I cannot see the witheld material in my case, but there is a world of difference between this and allowing the Respondents the opportunity to make secret representations to the judge about the final decision.

Equally importantly, there is no point in an appellant engaging in the Tribunal process if that Tribunal refuses to request the relevant information. If a Tribunal then proceeds to decide an appeal without the relevant information then that Tribunal process is nothing more than a sham.

M Boyce left an annotation ()

Below the Tribunal presents a wholly unconvincing encomium of the PHSO guidance and its 'helpfulness'.

'93. While the withheld information might help explain the relationship of the Customer
Care Team’s review and other PHSO processes, we are satisfied that transparency in
this context is best achieved through the public statement of policy on the PHSO’s
website, in relation to which further clarity can be obtained by contact with
experienced PHSO caseworkers.

94. Having considered the nature and content of the withheld material, we find that
publication would contribute relatively little to the important public interest in
transparency in this context. We have therefore afforded limited weight to this public
interest when reaching our decision.

This panegyric on the PHSO's review process is NOT shared by Judge HH Shanks in my Appeal EA/2019/0334.

In paragraph 23 he states:

'On considering the papers it is plain to me that the position in relation to the PHSO's internal review process in IN A MUDDLE [too right it is] and needs sorting out, although it is fair to say that the lack of express provision for such a process in the legislation has made life difficult. Further, it is plain that, given that the PHSO's very purpose is to investigate maladministration by public authorities, there is WEIGHTY PUBLIC INTEREST IN DISCLOSURE OF ANY SUBSTANTIAL INFORMATION BEARING ON THE REVIEW PROCESS.'

Yes, but not according to Judge Macmillan who completely disagrees. She took nearly two and a half years to come to her utterly incorrect conclusion.

British justice, don't you just love it?

M Boyce left an annotation ()

In paragraph 44 of the FTT decision they ridiculously state:

'He [me] relies in addition on the cost of the review process, which he estimates states in 2016-17 was £32,000, 000 (thirty two million) a year.'

This is utter nonsense, and I never said anything of the kind. I estimated the average cost per CASE (investigation) was around £25, 000. The figure of thirty two million was in fact the ENTIRE PHSO annual budget!

In paragraph 72 of the decision it states:

'The PHSO has made no specific submissions in relation to the external legal advice and the extent to which this is in scope, and relies instead on the Commissioner's submissions.'

So we might expect the judge to further investigate the relevance (whether it was in scope) of the legal advice sent from the PHSO to the Tribunal. Alas, no such luck. The judge instead just decided to ignore the issue. That's justice' for you.

Jason left an annotation ()

Gosh, that is pretty egregious, and so much for attention to detail.

Yes, you've made a very good point there regarding the encomium of the PHSO guidance and its 'helpfulness'.

Was Judge Macmillan aware of what was stated by Judge Shanks?

It seems it very much depends on the kind of judge that you get as to whether or not you will win your case or appeal. I think this also reflects my personal experiences.

Speaking of the good ol' British justice system:

"Government proposals for a new law to limit the powers of judicial reviews could “eviscerate” and “gut” legal challenges and hamper the power of the courts to hold ministers to account, according to members of the legal profession.":

https://www.ft.com/content/db29e15b-dd47...

J Roberts left an annotation ()

"'The PHSO has made no specific submissions in relation to the external legal advice and the extent to which this is in scope, and relies instead on the Commissioner's submissions.'

So we might expect the judge to further investigate the relevance (whether it was in scope) of the legal advice sent from the PHSO to the Tribunal. Alas, no such luck. The judge instead just decided to ignore the issue. That's justice' for you."

We just might!

Some comments from another thread:

https://www.whatdotheyknow.com/request/t...

"If relevant material isn't included in the bundle the tribunal judge can direct that it be added:

"16. In his email of 12.10.19 the Appellant had asked that a copy of this information be placed in the bundle. In a CMD of 13.03.19 the Tribunal Judge directed that redacted and unredacted copies of the relevant entry be served, to be placed in the open and closed bundles respectively."" (23 May 2019)

https://www.bailii.org/uk/cases/UKFTT/GR...

NHS ENGLAND V INFORMATION COMMISSIONER AND DEAN [2019] UKUT 145 ( AAC)

""16. I have been asked to say whether the ‘public authorities are necessarily required to make submissions that refer explicitly to the content of the withheld information.’ The underlining is in the original. I decline that invitation. First, because public authorities are not required to make any submissions; what they say is a matter for them."

('necessarily required' is the phrase underlined)" 31/5/19)

https://www.bailii.org/uk/cases/UKUT/AAC...

""39. The question whether a document or communication is privileged is to be determined by the Court in the light of the evidence taken as a whole. The mere assertion of privilege, or statement of the purpose for which the document was created, is not in itself determinative, even if the person making the statement is a lawyer, and even if the assertion is made on oath. Whilst an affidavit of documents will generally be treated as conclusive on the question of privilege, it will not be treated as such if it appears from the affidavit itself that the deponent has erroneously mischaracterised the documents, or if it is reasonably certain from the other evidence before the court that it is incorrect or incomplete on the material points"." (31/8/19)

https://www.bailii.org/ew/cases/EWHC/QB/...

M Boyce left an annotation ()

Yes Judge Macmillan was fully aware of Judge Shanks' decision, because I sent her a copy of my submissions and appeals on this case and highlighted the relevant information.

The powers to limit judicial review is worrying, but perhaps what is more worrying is that judges seem not to know what they are doing or don't seem to care what they are doing.

The PHSO pride themselves on their 'transparency', but is this pride justified?

In my Appeal EA/2019/0032:

(1) The PHSO didn't initially and for a long time send the external legal advice to the Tribunal.

(2) They only sent this legal advice when I alerted the Tribunal to the existence of this advice.

(3)They refused to tell the Tribunal whether this advice was in scope. It turns out it was not.

(4) They refused to attend a hearing ordered by the Tribunal as necessary to decide the case.

(5) They said that they agreed with whatever the ICO said in terms of the scope of the information.

(6) The ICO said the legal advice was not in scope.

(7) The Tribunal said that the ICO had not considered whether the advice was in scope or not.

(8)The Tribunal didn't ask the PHSO to send it the in scope legal advice.

(9)The Tribunal decide the case in favour of the PHSO even though they had not seen the in scope legal advice.

Does all this seem transparent and fair?

J E Garner left an annotation ()

Upper Tribunal Consultation Alert
May 19th, 2021
The Upper Tribunal (Administrative Appeals Chamber) hears a lot of information rights appeals. What not all users of the UT, or readers of this blog, may have realised is that not all of its decisions – despite it being an appellate jurisdiction – are published online rendering them accessible to those interested in the area. Still fewer are then selected for reporting in the Administrative Appeals Case Reports, although we have our doubts whether anyone really uses the AACR. Is it time for a change of approach?

Maybe, says the UT. A consultation is currently being run, which closes on 1 August 2021, which invites the views of users of the UT about its approach in this respect. It is apparent that much has been derived from, and driven by, the disproportionate amount of social security appeal work in the AAC, of which a smaller proportion may indeed involve the determination of points of law of wider interest. Nonetheless, an approach whereby only some of an appellate jurisdiction’s decisions are published – at the decision of the Judge – and then some are selected for reporting – apparently through a process of judicial ‘feel’ which sounds akin to the selection of a new Pope, but which has slightly unclear effects on the precedential effect of the decision – is arguably ripe for reconsideration.

The consultation paper may be found here: UTAAC-Consultation-Paper-on-reporting-decisions-10-May-2021.pdf (judiciary.uk). Please do give the UT (AAC) your views. (Unfortunately, they do not seem to ask for views about my own bugbear, which is the carry across from social security appeals of inconsistently rendering individual parties to an appeal by their initials in the case name in some instances but not others.)

Christopher Knight
11KBW

J Roberts left an annotation ()

JE Garner,

Thanks for posting this valuable information. The consultation paper can be viewed here:

https://www.judiciary.uk/wp-content/uplo...

'The reporting of Upper Tribunal (AAC) decisions

6. ... The general criterion used by judges for publishing their decisions in this way is whether the decision is thought to be of potential interest to persons other than the parties... The posting of decisions on the website is at the discretion of the Judge who decides the case in question... '

I think that anything that seeks to interfere with a judge's discretion will run into difficulties.

I made a request to HMCTS in October 2020 relating to a UT decision I was aware of but could not find:

https://www.whatdotheyknow.com/request/u...

Eventual response:

'The information is exempt from disclosure under section 32 of the FOIA because it is held only by virtue of being contained in a court record. 
 
Under section 32(1)(c) information is exempt if it is a document created by a court for the purposes of proceedings in a particular cause or matter. 

The reason for section 32 is to preserve the courts control over court records  Even if a document may have been made public at the hearing it ceases to be a public record after the hearing and then becomes protected by virtue of section 32. The greater public interest was considered to lie in the preservation of the courts' own procedures for considering disclosure. 
 
Section 32 is an absolute exemption and there is no duty to consider the public interest in disclosure. '

https://www.whatdotheyknow.com/request/7...

M Boyce left an annotation ()

Yes, thanks for this important information J E Garner.

I have learnt something new here. I didn't realise that most UTT decisions were not published, and it does explain why so few decisions can be found when doing a search on the internet.

Judges decide which decisions to publish. Oh dear, that's never going to end well.

I will be explicitly asking the judge in my appeal to the UTT for Appeal EA/2019/0032 to publish the decision.

Surely this is of public importance? But will the judge decide to throw a blanket over this one?

M Boyce left an annotation ()

The Panopticon blog article: 'Draft Judgements to be Circulated with Caution' contains a link to the UTT case GIA 0384 2011-01.

This contains two highly relevant points: the need for a hearing in certain cases, and the need for great caution when distributing draft judgements.

Rule 32(1) of the Tribunal procedure states that '...the Tribunal must hold a hearing... unless the Tribunal is satisfied that it can properly determine the issues without a hearing.'

The ICO and the PHSO refused to attend a hearing. The Tribunal said that they could not determine my case without a hearing. They decided the case without a hearing. This constitutes a clear error of law.

In paragraph 27 of the above UTT case it states the issuing of draft decisions 'will be the EXCEPTION' rather than the rule'. Yet the Tribunal in my case states it is 'NORMAL' procedure.

Then in paragraph 28 of the UTT case above the circulation of draft decisions is described as 'good practice'.

So is the circulation of draft judgements to the Respondents the exception, normal procedure, or good practice?

Also in paragraph 28 above it states that 'usually only a short period of 3-5 days is given'. Yet in my case the draft decision was with the Respondents for over five weeks, and the ICO refused to let me know if they had received the draft, despite my repeated requests to them.

J Roberts left an annotation ()

Another excellent find!

Link to Panopticon article:

https://panopticonblog.com/2011/07/22/dr...

Link to IICUS v IC and BIS and Ray [2011] UKUT 205 (AAC):

https://www.bailii.org/uk/cases/UKUT/AAC...

You have opened up a can of worms.

On a related note:

'The UT has found that the Tribunal’s decision involved a breach of rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and of the principles of procedural fairness. That rule, when read with rule 1(3), requires the Tribunal to hold an oral hearing unless each party has consented to the matter being determined without a hearing and the Tribunal is satisfied that it can properly determine the issues without a hearing. Here, the UT found, IICUS had been joined (albeit after the paper hearing) and had not consented to the matter being determined without an oral hearing. On that procedural basis alone, its appeal was allowed and the matter is remitted for a second innings in the Tribunal.'

In your annotation of 17 May you wrote:

'I replied that I would still attend the hearing but would consent to the paper hearing.'

Had you not consented to a paper hearing how might things have played out? Would you have been the only party invited to attend, or, is it the case that if one party does not consent to a paper hearing, only then does a judge have the authority to compel other parties to attend? In your case, the tribunal were '... of the view that this appeal is NOT suitable for a decision on the papers... ' In other words, they thought that the issue could not properly be determined without a hearing.

M Boyce left an annotation ()

i certainly agree about the can of worms.

You ask: 'Had you not consented to a paper hearing how might things have played out?

To be honest, no differently.

The Tribunal had told me that the PHSO and the ICO would not attend the NECESSARY hearing. I then sent the Tribunal an email asking what the Tribunal wanted to hear from me at the hearing so that I might prepare for the hearing. On 27 August 2020 the Tribunal judge replied and stated exactly this:

'The panel has no questions for you and, given that neither Respondent intends to attend, and for the avoidance of any doubt please could you confirm that you would still consent to the Tribunal taking a decision on the papers?'

I replied that I would, because what would have been the point of my attending a hearing that the Tribunal had nothing to ask me?

I wrongly assumed that the Tribunal would ask the PHSO to send it the in scope information. How wrong I was.

M Boyce left an annotation ()

I don't think the FTT can force a party or parties to attend or take part in a hearing. GRC Rule 33(2):

'The Tribunal may give a direction permitting or REQUESTING [but not ordering] any person to attend or take part in a hearing..''

But in Rule 16 the Tribunal can ORDER any person to answer any question or produce any documents in that person's possession.

As stated before, the PHSO and the ICO refused to attend a hearing. Then on the 18 June 2020 the judge issued CMD's which stated:

'The Tribunal has received an email from the PHSO dated 8 June 2020. The email and attachments will be held pursuant to rule 14.'

By 13 July the PHSO should:

Serve any further submissions he wishes to make.... relating to whether the content of the original closed bundle is within the scope of the request (and why); indicate whether he intends to attend a remote a oral hearing.'

On the 27 August the Tribunal informed me that the PHSO would still not attend a hearing. They did not mention whether they had received any further clarifying submissions from the PHSO.

So what was in the email sent to the Tribunal by the PHSO on 8 June?

It didn't appear say whether the PHSO would attend a hearing, and if not why not.
It didn't seem to clarify what was in scope and was not in scope - as later confirmed in the FTT decision.

The Tribunal just decided to let the PHSO off the hook by not ordering them to disclose the in scope advice.

D. Moore left an annotation ()

"So what was in the email sent to the Tribunal by the PHSO on 8 June?"

I too have serious concerns about the content of emails that the PHSO and the ICO send regarding appeals.

My recent appeal:

https://phsompsdisabilitydiscrimination....

In my "reply" I wrote this:

"21. The Commissioner has referred to an appeal of mine yet to be decided at paragraph 85 (EA/2019/0250). This point is relevant to these two appeals.

Information in the bundle relating to that request (email dated 4/7/19) included the following from the ICO to the PHSO:

“I have drafted a decision notice and wonder if you could just consider the paragraph below and whether I am correct on this point.

The previous DN I am referring to is the one you referred me to in your earlier email. Mr Moore has raised the point that his request is not connected to any particular complaint. My proposed paragraph is trying to address this and say that in house clinical advisors names have been redacted and if they were disclosed, in some cases, it would be possible to link particular advisors to cases due to their particular speciality.

Is there anything further you would like to add to this argument before the notice is issued?”"

The ICO (supposed upholder of information rights) is asking the PHSO for arguments to support its case against me just before the DN is published. If it happened to me, why wouldn't it happen to you?

M Boyce left an annotation ()

Thanks for this important information D Moore.

It shows just how cosy the relationship is between the PHSO and the ICO. The ICO claims to be impartial and independent, but in relation to the PHSO they clearly are not as the PHSO investigates the ICO and the ICO investigates the PHSO.

I have absolutely no doubt that your experience with the ICO and the PHSO is entirely typical and that the ICO will always work with the PHSO to defeat any FOI request.

J Roberts left an annotation ()

D Moore,

Thanks for posting the information.

I agree with M Boyce about the cosy relationship between the PHSO and the ICO. Of course there are a few cases where evidence can be found that points the other way, but taken in the round the relationship between the two bodies is a cause for concern.

Recently the ICO disclosed:

'I will refer your offer of a secondment to our HR Dept who may be in contact with you to obtain further details.'

https://www.whatdotheyknow.com/request/c...

Does the PHSO want the ICO to provide more of what it provided in your case?

M Boyce left an annotation ()

It is now abundantly clear to me that the judge (wrongly) regards section 42 as an absolute and not a qualified exemption.

In paragraph 92 of the EA/2019/0032 decision it states:

'....as noted by both Respondents, this legal advice is just one person's opinion as to the legal status of the review process. It is neither binding and not representative of a definitive view.'

It is indeed just one person's opinion as to the legal status of the review process - but what both the judge and I know is that that one person is non other than Karl Banister - Head of the legal department of the PHSO, and also deputy Ombudsman of the PHSO! No legal advice is ever binding - it can never ever be so - but this advice is most certainly definitive. It is definitive because who else could be better qualified than to opine on the legal status of the PHSO review process than the chief lawyer at the PHSO?

The judge is turning a qualified exemption into an absolute exemption because she knows full well that no legal advice can ever be legally binding - only a judge can make it legally binding.

Then in paragraph 97 the judge says:

'....knowledge that legal advice might be made public is likely to restrict both the advice given and the nature of the advice requested by public authorities.'

Possibly, but not in this case. It was Karl Banister himself that publicly declared, in the December 2017 PHSO Board Minutes, that the review process was 'not legally allowed for.' If he was so very concerned about the public knowing about this legal fact then why did he make it so public? He knows about the FOIA and he knows that legal advice can sometimes be disclosed under the FOIA. This did not restrict his advice to his own organisation.

It is not credible for a highly experienced lawyer, an expert in his field, not to know that making a public statement that what the Ombudsman was doing was not legal would not then elicit further public interest in this subject.

The judge is wrong on both paragraphs, and it shows that the FTT cannot be trusted to be fair and impartial.

Last week I asked the FTT to publish my decision without further delay. I was informed that that there were problems with the 'portal' and that was why my decision had not been published. Yet the following day another decision was published?

M Boyce left an annotation ()

Now the FTT have told me that they cannot upload the decision for EA/2019/0032 because of 'formatting' issues. The decision has been sent back to the judge to 're-draft'.

Why don't they just send it back to the PHSO and the ICO for them to re-draft, after-all they've already done it once!

M Boyce left an annotation ()

https://informationrights.decisions.trib...

The decision for Appeal EA/2019/0032 has now been published on the FTT website.

M Boyce left an annotation ()

Here's a further error of law in Appeal EA/2019/0032, which is linked to above and now published on the FTT website.

This regards the possibility of legal proceedings if the legal advice is disclosed.

In paragraph 98 of the above it states in relation to the UTT case law of Savic:

'We take the view that if the information sought under FOIA is relevant to, or might be or might have been of use in existing, concluded or contemplated legal proceedings this ADDS TO THE WEIGHT of the factors against disclosure..'

And in paragraph 99:

'As a consequence, we have afforded SIGNIFICANT weight to this public interest against the publication of the requested information...'

Yet in direct contrast, in Nicholas Wheatley's Appeal EA/2019/0189 which was about the PHSO's legal advice surrounding the quashing of reports it states in paragraph 96:

'...Although no litigation is ongoing or contemplated, we accept that there is a real possibility of a legal challenge to the Ombudsman's approach. This adds SOME LIMITED weight to the interest in the maintenance of legal professional privilege.'

So is it SIGNIFICANT or LIMITED? You picks your judge and you get a different answer every time.

As it turns out, neither judge is correct - the case law of Savic quoted above is right and it is legally binding on the FTT: there is simply weight to this issue, and not significant or limited weight.

It is now time that FTT judges started adhering to the law, instead of just making it up.

M Boyce left an annotation ()

CMD's received today.

1. The Tribunal previously received an application from Mr Boyce for
reconsideration of the Registrar’s decision dated 15 April 2021 in relation to
the admissibility in this appeal of the documents in appeal reference
EA/2019/0032. In his email of 25 May 2021 @08.11 he states
“For the avoidance of doubt the Tribunal now has no request from me to
consider the evidence in Appeal EA/2019/0032 for Appeal EA/2021/0064”

2. The Appellant’s application under rule 4(3) having been withdrawn the
effect of direction 6 in the Registrar’s directions of 15 April 2021 is no longer
stayed. The stay I imposed on that direction is lifted and the direction is
amended to show the date 11 June 2021 in substitution for 4 May 2021.
Direction 6 now reads with my emphasis on the date
“6. There is a much simpler way of Mr Boyce proving his point. The
following directions are made:
6.1 No later than on 11 June 2021 Mr Boyce may provide to the Information
Commissioner’s Office and the Tribunal a written statement, containing a
“statement of truth”1, which sets out the facts on which he relies to state
that his “appeal to the AO” was unsuccessful:
6.1.1. The statement must not exceed 5 pages of A4 and must use a
font of at least .12 and have at least normal margins.
6.1.2. The statement must:
6.1.2.1. EITHER exhibit to his witness statement any
written record he has of the outcome of the “appeal to the
AO”;6.1.2.2. OR explain within his statement why he is unable
to provide any written record of the outcome of the “appeal
to the AO”.

3. The Appellant’s email to the Tribunal of 3 May 2021 raised issues that were
to be considered at the case management hearing. Mr Boyce has indicated
he will not attend that hearing as he has lost confidence in the process. The
Tribunal is sorry to hear that is his position but in the absence of the parties
there is no purpose to an oral case management hearing. Therefore,
UNLESS either of the parties indicates by 5pm on 28 May 2021 that they
wish to attend the case management hearing on 25 June 2021 that hearing
will be vacated, and this appeal will be made ready to list for final
determination on the papers1.

4. Any further written submissions from either party are to be made by 5pm
on 11 June 2021. The parties are reminded of the Tribunal’s power, under
rule 15 of its rules, not to admit or consider submissions or evidence that
are not provided in accordance with a direction.

5. The only other matter of substance to be dealt with at that hearing were Mr
Boyce’s questions about the application of GIA/779/2019, otherwise
known as the Upper Tribunal ruling in DVLA v Information Commissioner
and Williams (Rule 14 Order) [2020] UKUT 310 (AAC). Mr Boyce should note
that the statement on the front of the hearing bundle is an accurate
statement of the principle in that case that is of general application

“A party to whom a document has been provided in an appeal (or
application) to the First-tier Tribunal (including those in bundles) may use
that document only for the purpose of the proceedings in which it is
disclosed, except where the Tribunal gives permission or the party who
disclosed the document and the person to whom the document belongs
agree.”

6. However, as stated previously, Mr Boyce should note that this tribunal
cannot give him legal advice. The making of any comment on a public
forum is a matter that is not within the Tribunal’s remit to provide guidance
to him about, other than to remind him he must act within the law and if he
is not sure about what the law is, he should take advice.

7. The publication of documents provided to him during an appeal to this
Tribunal cannot be considered in hypothetical terms without the details of
1
I note that the decision in EA/2019/0032 has been promulgated and thus this case may now proceed to hearing, direction 9 &10 of the
case management directions of 15 April 2021 having been complied with the intended actions. Should the Appellant intend to do so he should first
seek permission of the party who disclosed the document to him and the
person to whom the document belongs before making any application for
permission to the Tribunal.

So where does this leave the discussion of appeals on WDTK?

The UTT decision only stated that documents and the bundle could not be published. It said nothing about discussion of those documents.

What about after an appeal has been decided? Are appellants barred from ever discussing their case?

I intend to obey the UTT decision of not publishing whole documents or the bundle, but I will not stop making comments on WDTK because that is not what the UTT decision ordered. i am using the documents for the purpose of the proceedings. As far as I can see I am obeying the law by discussing my appeals without publishing the documents.

The Respondents and the FTT want to shut down freedom of speech for the iittle people.

The FTT advises that I take legal advice. Well if they pay for it I will.

M Boyce left an annotation ()

And apart from the prohibitive cost of obtaining legal advice on this issue (probably tens of thousands of pounds), I may as well just set fire to any money I have.

The Tribunal judge in this case advises that I take legal advice, but what does the judge have to say about legal advice in my Appeal EA/2019/0032? She says at paragraph 92:

'....this legal advice is just one person's opinion as to the legal status of the review process. It is neither binding and not representative of a definitive view.'

Actually it is definitive, because it comes from the chief lawyer at the PHSO who knows more than anyone about the legal status of the review process.

So why would legal advice that I obtained suddenly and magically become binding and definitive? Of course it wouldn't. Both judge's know full well that only a judge can give legally binding 'advice' - rulings.

So what would be the point of my obtaining legal advice? None.

M Boyce left an annotation ()

So now we have judges and public authorities saying that legal advice is not worth the paper it is printed on or the breath that comes from speaking it. Yet we have public authorities, like the PHSO, commissioning legal advice at huge public expense that they fully admit to being utterly pointless and a complete waste of public money.

Why is the tax-payer paying for this completely useless advice?

M Boyce left an annotation ()

And why is the tax-payer paying for legal advice that the PHSO regards as utterly useless and then completely iGNORES. The PHSO commissioned legal advice on the review process, it describes this advice as useless and then ignores this advice - the advice stated that the review process was not legal and the PHSO then decided to ignore this useless advice and continue with its illegal activity.

Large amounts of money well spent? The Tribunal says that none of this is in the public interest. Do you agree?

J Roberts left an annotation ()

'The Respondents and the FTT want to shut down freedom of speech for the little people.'

I agree with you. I think they would prefer things to be like the FTT Social Entitlement Chamber, where confidentiality is understandable but where 'grave injustice' is less likely to come to light:

https://www.whatdotheyknow.com/request/f...

Without WDTK I would be in the dark. The more commentary I read on decisions the more deficiencies I see in them. Given that most appellants are unrepresented, would not more openness and transparency be appropriate? I don't see how taking steps to restrict what appellants can say online is in the interests of justice. The public are the clear losers.

I also agree that the information you seek is in the public interest. Some of the many public concerns with the Ombudsman are detailed here:

https://phsothetruestory.com/

M Boyce left an annotation ()

You say:

'I don't see how taking steps to restrict what appellants can say online is in the interests of justice. The public are the clear losers.'

It's not in the interests of justice and that is the clear intention of the Establishment.

The rich and powerful have always received a fair hearing and the poor and the powerless never have and never will.

The Establishment have always had ways of making you talk, and equally they have always had ways of shutting you up. The latter includes legal professional privilege and threats of contempt of court proceedings. The Establishment can and do openly declare that they are breaking the law and there is not a thing the little folks can do about it - judges will always make sure that such activity by the Establishment just gets covered-up and those who are committing the illegal behavior can never be held to account.

When I send in my appeal to the UTT in the next few days I will show how the Tribunal pick and ignore case law - they pick the bits that they like and that fit their narrative and they ignore the bits that don't. Woolworths had pick and mix and the judiciary have pick and ignore.

M Boyce left an annotation ()

'There is another' - to quote a famous line from The Empire Strikes Back.

It seems that my Appeal decision EA/2019/0032 is not entirely unique on the FTT website. The Appeal of John Cross v ICO, EA/2014/0320 (2016) states the following in the conclusion:

'We record that in accordance with normal practice a copy was supplied to the Cabinet Office in draft in case the Tribunal was proposing to disclose inadvertently any information which should not be disclosed at this stage.'

Note the ICO did not appear to receive the draft as well.

This changes nothing, however, as I will still be appealing this point, among others, to the UTT under the error of law of unfair procedure.

Another interesting find relates to the idea of possible 'prejudice' stemming from the disclosure of witheld information.

In my appeal the Tribunal says they attach SIGNIFICANT weight to the possible prejudice to the PHSO in terms of possible legal action.

This contrasts starkly with the Appeal of Mr Trevor Kitchener v ICO, EA/2006/0044 (2006) where it states in paragraph 19:

'We do not for a moment express a view on whether disclosing the Barrister's advice could or would give rise to legal proceedings, but supposing that it could, that seems to us, if anything, an argument in favour of disclosure, since as we said earlier, it is in the public interest that public authorities should be able to be called to account, where appropriate.'

Yes, and given that the PHSO have openly declared that what they are doing is illegal, then is this not appropriate?

Jason left an annotation ()

Yes, you make excellent points, M Boyce.

Regarding Appeal EA/2006/0044 (2006), that is exactly what I was concerned the FTT missed, deliberately or otherwise, when I initially read the judgment in your Appeal (you will note my comments in this regard).

I am profoundly disillusioned with the justice system in the country to put it mildly, and have been denied access to justice on countless occasions, so I can really empathise with you and your frustrations. In fact, I have been treated with disdain and contempt by public bodies when sending them a letter before claim using the judicial review protocol, so much so that some don't even bother to respond at all. Why? Because they know that they can get away with it, because the cost risks are unimaginable and disproportionate for a litigant in person and the ordinary person, and the game isn't worth the candle, so to speak, in most cases. Public bodies and their unscrupulous solicitors etc., of course, won't lose a minute's sleep when it comes to using vast amounts of taxpayers' funds to defend litigation.

As you know, justice is by far mainly a privilege that the rich enjoy, and we have an Establishment/right-wing Government that will do anything and everything not to be held to account. Indeed, as we now see with the reforms to judicial review, it is now even trying to stop the likes of Gina Miller (the rich) holding it to account. To this end, us plebs don't really stand a chance.

M Boyce left an annotation ()

Yes Jason we are kindred spirits in this respect.

The whole system is broken and often corrupt. To be honest though, although my appeal has been refused it has in some ways worked out quite nicely. The reason being is that I am preparing an appeal to the UTT, and it is the UTT that matters. Whether I eventually get the requested information or not, I intend to get some important information nonetheless, whilst simultaneously exposing all sorts of wrongdoing.

I will be appealing to the UTT on errors of law, and several of those errors involve the FTT ignoring or misapplying legally binding case law. If the UTT also ignore case law then that will be 100% proof that the whole system is fundamentally corrupt. Case law is legally binding and it sets a precedent that the FTT MUST follow.

The seriously flawed FTT decision will now enable me to help develop some case law. This case law should finally put the ICO back in their box with regard to their Janus- faced attitude to section 42 FOIA and their 'extreme exceptionality' argument.

Let's see what happens. It should be very interesting. Watch this space.

J Roberts left an annotation ()

The rich and powerful have always received a fair hearing and the poor and the powerless never have and never will.'

Too true:

“14. As noted by the Clementi review, ‘high quality legal services are important to society, but of limited value if available only to the very rich or those paid for by the state’.”

https://assets.publishing.service.gov.uk...

Legal costs:

"73. MR JUSTICE JAY: How much do you seek?

74. MR MAURICI: My Lord, the schedule, the total figure is £80,654.35."

http://www.bailii.org/ew/cases/EWHC/Admi...

FOIA and lawyers:

'62. But FOIA is intended to be accessible to citizens, who should be able to use it without facing unnecessarylegalism or therefore needing recourse to lawyers. Indeed, in 'Rodriguez-Noza v Information Commissioner and the Nursing and Midwifery Council'; 'Information Commissioner v Foster and Nursing and Midwifery Council (Foster)', Upper Tribunal Judge Jacobs decried the legalism which he thought had crept into the (First-tier) Tribunal’s decision-making.'

EA/2018/0023

https://www.bailii.org/uk/cases/UKFTT/GR...

Section 42:

'8. The tribunal notes with concern that in order to fully understand the issues in this case it was necessary to direct that a proper bundle be prepared to ensure that the relevant material was before the tribunal and that the material which should be in the open bundle was accessible to Mr Hammill. It was apparent that neither the Council nor the Information Commissioner had fully considered the scope of the request for information and that if they had much confusion would have been avoided. The request was first made on 23 March 2017 (paragraph 2 above) and was“Please provide a copy of the legal advice which justifies a request for a new application”. The request was repeated in a more generalised form on 13 April 2017. During the course of the first investigation the Council told the Information Commissioner(open bundle page 93):-'

EA/2018/0297

https://www.bailii.org/uk/cases/UKFTT/GR...

M Boyce left an annotation ()

Yes the risk of mortgage scale costs in judicial review is a complete joke. In my Appeal EA/2019/0032 both Respondents and the Tribunal say if I want answers then I should go for judicial review. Yeah right - been there and done that - it is not only very risky, but it is a complete waste of time. They can go for a very long walk off a very short pier.

The EA/2018/0297 case you provide a link to is interesting. They exhort than Tribunals should receive the in scope material. Yeah, that would be nice, but the Tribunal in my appeal decided not to bother with niceties like that and to decide the case with mostly out of scope material.

As for unnecessary legalism, that would be good to avoid, but sadly not if you want to stand any chance of winning. In my appeal to the UTT, which I will share on this site in the next two days, will pivot around legalism - particularly case law, as this is the only thing that counts. I promise that they are going to get an appeal that they will not forget.

M Boyce left an annotation ()

Appeal to the Upper Tier Tribunal for Appeal EA/2019/0032.

I am aware that I can only appeal on errors of law. Below are the six errors of law in this appeal.

(1) BROWNING –

The Tribunal has said what is NOT in the closed bundle, but has actually said very little about what IS in the closed bundle. The only thing it has said is that one document, comprising pages 1-10, includes

‘advice as to what should be prudently and sensibly be done in a relevant legal context.’

This actually tells me very little indeed. The Tribunal has only said this much because it has decided that a small amount of information within that one document should not remain closed. So, in effect it has said absolutely nothing about the nature of the closed material.

The Tribunal has made an error of law by not adhering to the binding case law in ‘Browning v Information Commissioner and DBIS [2013] UKUT 236 (AAC) (2013)’. Here, in paragraph 18 it states:

‘More generally, we comment that First-tier Tribunals should consider and give appropriately detailed directions and reasons (i) setting out the nature and subject matter of any closed material and hearing, (ii) why they have accepted that they should consider evidence advanced by a public authority (or anyone else) and argument on a closed basis, and (iii) why further information relating to their content has not been provided. If this is done it will provide clarity as to what will be, and has been, considered on a closed basis and why, for example, evidence provided to support an exemption has been so considered and more of it, or about it, has not been disclosed.’

It is very clear that the Tribunal has not set out the nature and subject matter of the closed material. Indeed, it has said nothing at all about this matter - except for a general statement on what is just an axiomatic point of law. According to the case law of ‘Browning’, this constitutes a clear error of law.

In fact, it is clear that the Tribunal and the Respondent’s have done everything they can to ignore the case law of ‘Browning’.

On 07 October 2019 the Commissioner sent a further submission to the Tribunal. In that submission they state that the advice sent to the Tribunal from the PHSO was not in scope. They say at paragraph 13:

‘The Commissioner considers the Advice to relate to……. redacted……….’

So, the PHSO, the ICO and the Tribunal all refuse to let me know what was the nature of the advice sent to the Tribunal. This is not compliant with ‘Browning’ and it is very clearly an error of law.

(2) RESTRICTING AND TEMPERING OF LEGAL ADVICE –

In paragraph 97 of the decision, it states that:

‘We have considered but rejected the Appellant’s submission that there would be no prejudice to the quality of legal advice given to public authorities should the requested information be published. We are satisfied that this issue has been considered at length by the senior courts… We accept the Respondents’ submissions that knowledge that legal advice might be made public is likely to restrict both the advice given and the nature of the advice requested by public authorities.’

I am somewhat puzzled as to why the Tribunal did not provide an example of case law to support this assertion. Please could you provide me with even one example of where this issue has been considered at length by the senior courts?

I contend that the Tribunal’s assertions that legal advice would be tempered and/or restricted if it were POSSIBLE that legal advice might be disclosed to be highly irrational, and therefore an error of law.

Lord Diplock described the test for irrationality or Wednesbury unreasonableness as:

‘Defiance of logic…..that no sensible person who had applied his mind to the question to be decided could have arrived at.’

I contend that it simply defies logic that any public authority would ask for legal advice to be restricted for fear of possible disclosure under the FOIA, or that any respectable lawyer would restrict his legal advice to a public authority for a similar fear of possible disclosure. It is not only extremely unlikely that they would, but also it would be irrational.

The ‘Mersey Tunnel Association v Information Commissioner’ decision gives a highly instructive analysis, though not a binding one. In paragraph 42 it states:

‘We question whether a public official, concerned to see that his authority acted within the law and therefore seeking advice, would really be inhibited from spelling out the full picture for fear that publication might eventually ensue. We have certainly seen no evidence to that effect, and it would seem self-defeating from a client’s point of view. The very points that, on this argument, they might feel inhibited from revealing, are presumably the very points on which they most wish to seek advice. It is hard to see how an officer could be criticised, even if the weak points are later revealed, for seeking advice to help put them right, to ensure, as Merseytravel put it, ‘that those authorities act within the law.’ We discount the possibility that a public official might seek advice to help his authority act outside the law [yet this is exactly what the PHSO have done in my case]; and if that were to occur, it would be hard to see the public interest in keeping such advice confidential [indeed]. Nor can we see that any professional lawyer would temper their advice for fear of later publication: that would again be self-defeating, to both client and lawyer, to say nothing of the lawyer’s professional obligations.’

If the Tribunal’s analysis in my appeal is correct it must logically mean that public authorities have ALREADY restricted their legal advice and that lawyers have ALREADY tempered that advice. Both public authorities and lawyers know full well what the FOIA 2000 says: they know that it says that legal advice will have to be disclosed if, on balance, it is in the public interest that is should be disclosed. This has happened on a number of occasions, and it is therefore a very real possibility for a public authority.

This must also logically mean, according to the Tribunal’s analysis in my case, that the PHSO had ALREADY restricted their request for legal advice and that their lawyers had ALREADY tempered that advice – both for fear of possible later disclosure under the FOIA. Given that the advice was both restricted and tempered, the disclosure of this now anodyne advice would and should pose no problems. This is the irrefutable logic of the Tribunal’s analysis.

If this important issue has not been ‘considered at length by the senior courts’, it must now be so considered. This appeal affords such an opportunity to provide legal clarity on this important issue.

(3) NOT HAVING REGARD TO ALL THE MATERIAL EVIDENCE –

In paragraph 81 of Appeal EA/2019/0032 it states:

‘Having considered the closed material with care, we agree with the Commissioner’s submission that the emails included in the closed bundle are not in scope for the purposes of this appeal.’

And in paragraph 82 it states:

‘We are satisfied that the external legal advice, which was not considered by the Commissioner during her investigation, does not relate to the review process carried out by the Customer Care Team and is therefore not in scope.’

Is it likely, on the balance of probabilities, that no emails exist on the PHSO review process? The answer is no. I provided emails on this subject which stopped dead on 02 March 2017. There must be more.

Is it likely, on the balance of probabilities, that the PHSO do not possess any external legal advice on the PHSO review process? The answer is no. They possess external legal advice on the re-opening process (I can read between the lines), so why not on the review process?

Whether or not the PHSO does possess emails and external legal advice on the review process, it is an error of law for this Tribunal not to have investigated this: investigation is part of its inquisitorial function.

The Tribunal fails to mention in its decision that it had concluded in May 2020 that:

‘….we are of the view that this appeal is not suitable for a decision on the papers….’

Then, because the PHSO and the ICO would not attend the hearing, the Tribunal decided it was in fact suitable for a determination on the papers. The Tribunal have not explained to me the reasons for this volte face.

In the Tribunal decision at paragraph 72 they state:

‘The PHSO has made no specific submissions in relation to the external legal advice and the extent to which this is in scope…’

The Tribunal also states that the ICO did not consider this external legal advice.

Therefore, why did the Tribunal decide it could decide the case without a hearing?

It is also noticeable that none of these IMPORTANT events were mentioned at all in the Tribunal’s decision.

In my ‘very last submission’ to the Tribunal (in fact not my last, but the last acknowledged and considered by the Tribunal) I stated the following:

‘If the Tribunal do concur with the Commissioner that the advice is not within scope, then at that point I would respectfully ask the Tribunal to invoke paragraph 16(1)(b) of the GRC Rules: ‘Order any person to answer any questions or produce any documents in the person’s possession or control which relate to any issue in the proceedings.’

I asked for documents concerning the review process (which in my analysis overlaps/conflates with the re-opening process, and if these have not been submitted to the Tribunal then they should now be submitted.’

The Tribunal seem to have ignored this request. The Tribunal proceeded to decide the case on evidence which it deemed to be largely irrelevant (out of scope). The Tribunal may not have had the power to compel the PHSO and the ICO to attend a hearing, but it did have the power to compel them to answer any questions and provide the in scope material. It did not do so. This is a most astonishing and shocking state of affairs. The Tribunal have made a serious error of law by not calling for and then not considering the in scope material. How can an appeal possibly be fair if the Tribunal considers a case on largely irrelevant (out of scope) material?

(4) SAVIC –

In the case law of ‘Savic v IC, AGO, & CO [2017] UKUT AACR 26’ it states in paragraph 35:

‘…We take the view that if the information sought under FOIA is relevant to, or might be or might have been of use in existing, concluded or contemplated legal proceedings this ADDS TO THE WEIGHT of the factors against disclosure…’

Yet in paragraph 99 of my Appeal the Tribunal states:

‘As a consequence, we have afforded SIGNIFICANT weight to this public interest against the publication of the requested information…’

In Appeal EA/2019/0189 Nicholas Wheatley v ICO it states in paragraph 96:

‘…Although no litigation is ongoing or contemplated, we accept that there is a real possibility of a legal challenge to the Ombudsman’s approach. This adds SOME LIMITED WEIGHT to the interest in the maintenance of legal professional privilege.’

And in Appeal EA/2006/0044 Mr Trevor Kitchener v iCO it states in paragraph 19:

‘…We do not for a moment express a view on whether disclosing the Barrister’s advice could or would give rise to legal proceedings; but supposing that it could, that seems to us, if anything, an argument in favour of disclosure, since as we said earlier, it is in the public interest that public authorities should be able to be called to account, WHERE APPROPRIATE’ [emphasis mine].

I couldn’t agree more that where it is appropriate public authorities should be held to account. The Tribunal does not agree. The PHSO have publicly declared that what they are doing is not legal – it is appropriate and significantly in the public interest that their legal advice should be disclosed in this case.

So, the Tribunal accords SIGNIFICANT weight in Appeal EA/2019/0032 and SOME LIMITED WEIGHT in Appeal EA/2019/0189 and declares that it is in the public interest to disclose legal advice in Appeal EA/2006/0044.

All three are wrong in law. The correct approach, and the legally binding approach, is rightly set out in the case law of ‘Savic’: ‘ADDS TO THE WEIGHT’. It is a clear error of law to attach too much weight to this factor as the Tribunal have done in Appeal EA/2019/0032.

(5) EXTREME EXCEPTIONALITY ARGUMENT –

In paragraph 89 of Appeal EA/2019/0032 it states:

‘However, we reject the view expressed by the Commissioner in paragraph 16 of the Decision Notice that only in very exceptional cases can the inbuilt public interest in LPP be overridden when considering where the public interest lies. In our view every case must be considered on its own merits, and it would be AN ERROR to seek to limit the application of the public interest test…’

So, the Tribunal conclude it would be an error, but they do not conclude that it would be an ERROR OF LAW. There is a fundamental difference between the two: if I forgot to get some milk from the shop, that would be an error, but it would not be an error of law.

In Appeal EA/2020/0224 the same judge as in Appeal EA/2019/0032 states in paragraph 30:

‘If the DN contains an error of law the FTT must allow the appeal and must substitute the notice.’

The case law on this matter is ‘DBERR v IC [2009] EWHC 164’. In paragraph 41 it states:

‘It is also common ground, however, that the task of the Tribunal, ultimately, is to apply the test formulated in section 2 (2)(b). A person seeking information from a government department does NOT have to demonstrate that ‘exceptional circumstances’ exist which justify disclosure..’

This could not be any clearer. The DN contains an error of law and not just an error. I made it very clear in my final submission to the Tribunal that the ‘extreme exceptionality’ argument advanced by the ICO was contrary to both statute and the case law. The Tribunal nowhere acknowledge this fact. I firmly believe that the Tribunal has behaved in a deeply cynical way, in stating that the DN only contained an error and not an error of law. By doing this they would not have to allow the appeal on this point.

Equally cynically, the ICO in paragraph 53 of the Tribunal decision state that it would be an error of law – not just an error - not to attach significant weight to the inbuilt weight in withholding LPP material. Yes, and it is equally an error of law to attach too much weight – very exceptional circumstances.

Case law applies to me, to the ICO and the FTT. It is not to be ignored by anyone.
The FTT is as bound by case law as I am.

(6) PERCEPTION OF BIAS AND UNFAIRNESS –

In the conclusion to the decision for EA/2019/0032, at paragraph 103 it states:

‘In the normal way, a copy of this decision was sent to the Commissioner and the PHSO for them to check the draft and make REPRESENTATIONS as to whether any parts of the decision should not be disclosed…’

I consider this to be grotesquely unfair to me and is demonstrative of bias – actual or perceived.
In EA/2017/0232 ‘O’Hanlon v ICO, it states:

‘…. Under public law APPARENT bias is enough to condemn a decision… the question is ‘whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased.’

In my case the fair-minded observer could not fail to conclude that the decision maker (be that the judge or the ICO/PHSO) was biased. Allowing the PHSO and the ICO to potentially significantly change the draft decision appears deeply biased in favour of the Respondent’s and deeply unfair towards me.

The case law on this issue includes ‘Bubbles & Wine Ltd v Lusha (2018) EWCA. In paragraph 17 it states that:

‘..bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case.’

Allowing the Respondent’s to make representations on the draft decision was a clear error of law, in terms of procedural fairness.

The Tribunal also states that allowing the Respondent’s to make representations is ‘normal’. If this process is so normal, then why is it so rarely publicised? I have only seen one other example (EA/2014/0320) of where a Respondent was allowed to make similar representations.

In GIA 0384 2011 01 - ‘Draft Judgements to be circulated with caution’ – it states in paragraph 27 that:

The circulation of draft judgements ‘will be the EXCEPTION rather than the rule..’

A further issue that gives rise to the perception of bias and unfairness is the length of time that the Respondent’s were given to make such representations. They were allowed nearly six weeks to do so. The back-end of a pandemic is not a sufficient excuse to give the Respondent’s an unfair advantage in proceedings. If the Decision had gone in my favour, this would have given the Respondent’s far longer to prepare an appeal than I have been given, not to mention ample opportunity to persuade the judge to change her mind. This also represents procedural unfairness and is therefore an error of law.

In Article 6 of the European Convention on Human Rights, it states:

‘In the determination of his civil rights and obligations…. everyone is entitled to a fair and public hearing within a reasonable time by an independent and IMPARTIAL tribunal established by law.’

The Tribunal’s actions by allowing the Respondent’s to make representations have contravened Article 6 of the ECHR.

M Boyce left an annotation ()

My appeal to the UTT, detailed above, was received by the FTT yesterday.

My appeal decision was dated 14 April 2021, and promulgated 13 May 2021.

Yet the 'draft' decision, as I was informed by the GRC, was sent to the PHSO and the ICO on 7 April 2021.

It would appear that the 7 April draft was a draft draft version, and the Respondent's weren't just making 'representations', they were working with the judge to MAKE the decision.

The Tribunal, the ICO and the PHSO all think this is really fair. Does any body else?

D. Moore left an annotation ()

Anyone with their head and toes facing the same direction can smell something odd here.

It makes me wonder about my own appeals (two were heard together):

https://phsompsdisabilitydiscrimination....

'First-tier Tribunal (General Reglatory Chamber) information rights appeals table (as at 2 June 2021)':

https://www.gov.uk/government/publicatio...

In the previous version of the above document one of my appeals was listed for a date in mid-March and the other for a date in mid-May. I received a copy of the decision on 10 May, which I remember being before the date my second appeal was listed for. However, when I checked the earlier version of the above document I noticed that the mid-May date had changed to the mid-March date. I remember being confused at the time.

On the first page on the decision it states:

'Determined, by consent, on written evidence and submissions.
Considered on the papers on 16 March 2021'

And on the last page it states:

'Judge of the First-tier Tribunal
Date: 7 May 2021.'

Perhaps the second appeal was just considered earlier than the mid-May date stated in the appeals table. But considering what you have said (and my memory of the date change), it makes me wonder whether both my appeals were considered in March and the PHSO and the ICO were given the opportunity to assist in the perfection of the decision.

M Boyce left an annotation ()

This also sounds really dodgy D. Moore.

Is it possible for you to inquire as to whether the PHSO and the ICO were given the draft decisions to make representations on? it would be interesting and useful to find out.

It is looking increasingly likely that FTT decisions are given routinely to Respondent's to change as they see fit. Investigations, as you will probably know, are underway to try and uncover the extent of this dodgy business.

We can expect the 'open and transparent' ICO and the even less 'open and transparent' PHSO to do everything they can to try and hide all this and cover it up. When I made extensive inquiries with the ICO about this they just completely ignored all my correspondence and refused to reply.

It does appear that the Tribunal and the Respondent's are, to coin a phrase, all in it together in their 'perfecting' (actually the decisions are the exact opposite of perfect) of decisions.

It is now time for some real openness and transparency from the Establishment as to what on Earth is going on. But don't hold your breath.

D. Moore left an annotation ()

M Boyce,

It's greatly concerning.

Another thing I think you should be aware of is that it was pointed out in my appeal (I do not have permission to quote, so I'll not do that) that annotations I made on WDTK under the requests of (i) a named individual and (ii) a respected campaigning organisation was evidence of an ulterior motive on my part. I don't want to expose myself to the risk of legal proceedings, so I'll say no more.

M Boyce left an annotation ()

D.Moore

I do understand your concern about the threat of legal proceedings from the Establishment. It is their attempt to try and stamp out free speech. I wouldn't blame anyone for being cautious, but I personally think these developing issues are just too important and serious not to expose - cautiously as possible, if necessary.

J Roberts left an annotation ()

M Boyce

The crackdown is not limited to FOI. The crackdown on JR has been discussed on this thread, but now it appears there is to be a crackdown on crowdfunding (the only way JR is possible for some because of the great costs involved):

'In practice, the way Government is briefing makes this look like a very specific legislative attack on @GoodLawProject
and the work we do.'

'We understand that tomorrow @RobertBuckland
will call for reform of crowdfunding.'

https://mobile.twitter.com/JolyonMaugham...

You have certainly raised important questions about the role of the ICO. There is also that issue concerning the secondment offer:

'I will refer your offer of a secondment to our HR Dept who may be in contact with you to obtain further details.'

https://www.whatdotheyknow.com/request/c...

In Covid times, could this mean that the secondee would not move office and that the assistance provided by the secondee (which might otherwise be considered unacceptable) be considered perfectly acceptable?

Jason left an annotation ()

J Roberts, yes, all that is seriously concerning, but not unsurprising based on what I know about the rotten government we have.

M Boyce, you have put together a very compelling appeal. Sadly, it really does seem that the judge hearing your appeal bent over backwards for the ICO and the PHSO. One hypothesis is that judges are essentially lawyers, and will be naturally inclined to protect the interests of lawyers, including making their advice safe from public disclosure.

I really hope you get the justice you deserve here, and I am really rooting for you. Failing that, I hope you succeed in your aim of putting a major spotlight on the dubious practices of the ICO and the PHSO.

M Boyce left an annotation ()

Thanks Jason.

Your'e spot on about judges. All were lawyers in a previous life and that partly explains their bias in favour of lawyers.

One of the reasons why judges so dislike the Freedom of Information Act is that being statute law it takes supremacy over judge made case law - and they don't like that one bit.

Section 42 -legal professional privilege - is the section of the Act they hate most, because it makes what was an absolute exemption since the sixteenth century into a qualified exemption. It is akin to lawyers and judges being slapped in the face with the wet justice flannel.

Lawyers and judges do not like the little folks having any chance of justice, so they just work to undermine the FOIA by stealthily trying to turn back the clock on LPP.

They must be stopped.

M Boyce left an annotation ()

Below is the judge’s refusal to appeal. The numbered paragraphs are quoted word for word.

‘Permission to appeal to the Upper Tribunal against the Tribunal’s Decision of 13 May 2021 is refused.

Application for permission to appeal –

6. In Grounds of Appeal received on 2 June 2021 the Appellant has applied for permission to appeal the Tribunal’s Decision and submits as follows:

a. It was error of law for the Tribunal to not summarise in more detail the content of the closed bundle, as required by ‘Browning v Information Commissioner and DBIS [2014] EWCA Civ 1050;

b. It was irrational for the Tribunal to conclude that the publication of current legal advice is likely to prejudice future legal advice in terms of both advice given and advice sought;

c. The Tribunal’s conclusions in the open Decision as to the existence of additional legal advice and additional emails must be incorrect;

d. The Tribunal’s approach to making a decision on the papers in accordance with rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 was flawed, as the Respondents should have been required to attend and to produce further documents;

e. The Appellant takes issue with the Tribunal’s decision to afford ‘significant’ weight to the public interest against publishing legal advice due to the risks to future litigation, contrasting this to the description of the weight afforded to this public interest in other Tribunal decisions;

f. The Tribunal failed to describe the First Respondent’s statement in the Decision Notice that ‘only in very exceptional cases can the inbuilt interest in LPP be overridden when considering where the public interest lies’ as an error of law; and

g. The Tribunal’s practice of sending the decision to the Respondent’s before promulgation to check the draft for inadvertent disclosure of closed material gives rise to the perception of bias and unfairness.

10. I have considered whether the grounds of appeal identified above are ‘arguable’. This means that there must be a realistic (as opposed to fanciful) prospect of success – see Lord Woolf MR in ‘Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538. I have concluded that the grounds are not arguable for the following reasons:

a. I am satisfied that the Decision summarised the relevant closed to an appropriate extent, given the inherent difficulties in describing legally privileged material where privilege has not been waived.

b. I am further satisfied that it was not necessary for the Tribunal to order the production for further documents, or the attendance of parties.

c. The Appellant’s submission that the Respondent’s are afforded an opportunity to make representations that might lead to the Panel changing the outcome of the appeal is misconceived. Representations are only permitted in relation to the inadvertent disclosure of closed material in the open Decision.

d. The Appellant’s other grounds, although described as errors of law, amount in reality to a repetition of the Appellant’s written submissions and expressions of his disagreement with the Tribunal’s Decision.’

11. Although the Applicant clearly disagrees with the Tribunal’s decision, he has not in my view identified an arguable error of law. Accordingly, I must now refuse permission to appeal.

12. The Applicant is entitled to renew his application to the Upper Tribunal.’

So, there we have it. If ever there was a perfect example of a judge marking their own home-work, this is surely it. It is a total joke.

Let’s just explore it briefly before I prepare a detailed and substantive appeal to the UTT. I do expect the UTT to close ranks and to ‘find’ that the judge is right and that I am wrong. That is British justice.

The judge says that the Decision summarised the ‘RELEVANT closed to an appropriate extent’. I completely disagree, and what about the IRRELEVANT closed material?

The judge says that it was not necessary for the Tribunal to call for and to look at the relevant material which was not supplied to the Tribunal.

The judge says that the Respondent’s are only allowed to check for inadvertent disclosure. That may or may not be correct, but it is still an error of law for the FTT to allow this process to happen, as it has no legal capacity to do so.

Then, most damning and most telling of all, the Tribunal just perfunctorily dismisses my other grounds as mere repetition and disagreement. This is utterly incorrect. I stated quite clearly that the Tribunal had not adhered to case law. I discussed this case law in some depth, and the Tribunal has AGAIN seen fit to completely ignore this case law.

When a Tribunal ignores legally binding case law, we have a very, very serious issue indeed. The whole trust in the Tribunal system is being patently and seriously undermined by this very act.

This is becoming incredibly serious, and it far outstretches the confines of my appeal: it goes to the very heart of the British justice system and the trust we all place in it.

M Boyce left an annotation ()

https://informationrights.decisions.trib...

WOW! It seems there are some good judges after-all.

Compare this with the refusal of my appeal request above.

This is gold dust.

J Roberts left an annotation ()

Is this a genuine document? If it is the same Chris Hughes who decided this - https://www.opendemocracy.net/en/freedom... - then I think it is!

I also note this concern with the Registrar:

"10. While the appeal was initially struck out it was restored by a judge who observed:-

(a) The Registrar has not given sufficient weight to the investigatory function of the Tribunal. This is particularly important in cases that turn mainly on legal issues and in which a party is unrepresented. This is such a case."

The DN:

Reference: IC-45662-G8F3

https://ico.org.uk/media/action-weve-tak...

"14. The Commissioner notes that it is recorded on the document that is being withheld that its author was a (former) Legal Advisor and its owner is a Legal Advisor. The document includes a discussion of the relevant legislation, what is in and out of remit in respect of the PHSO and the Pensions Ombudsman and a summary. The document was written in 2008 and, while the Commissioner has noted the PHSO’s view on this (below), she considers that the advice the document contains was still ‘live’ at the time of the request, and currently, in that it may well be drawn on in the future.

19. ... The Commissioner has not been presented with any argument in favour of disclosure which is sufficiently strong to overturn the protection that LPP requires..."

J Roberts left an annotation ()

Latest on (not) publishing bundles:

https://www.whatdotheyknow.com/request/d...

'80. I am not satisfied that publishing the material on the internet or generally will significantly further assist the Appellant. Even if not able to pay for professional legal representation, he is already aware of the means of obtaining pro bono legal advice and has not yet explored all possible avenues. Further, he has already identified two potential non-legal representatives who might have the experience, specialism and even expertise in FOIA to represent him inthis appeal. Finally, he has the experience and ability to adequately represent himself in the event he cannot obtain representation.'

Jason left an annotation ()

Yes, I do question why one needs to request permission to appeal from the very judge who decided on the case. It is hardly going to be a case that the respective judge is going to say “yes, you’ve really well and truly rumbled me – I really made a complete mess of this, and shamelessly bent over backwards for the other side.” The whole exercise seems a complete waste of everyone’s time and energy.

The appeal EA/2020/0276 certainly provides some comforting reassurance that there are some decent judges out there, although it is alarming that that appeal was initially struck out. I suspect if that appeal was heard by the judge hearing your appeal, M Boyce, she would have argued that it was just one person’s (legal advisor’s) opinion, so it doesn’t really matter in the general scheme of things, so appeal dismissed.

M Boyce left an annotation ()

J Roberts, thanks for this link to the important new UTT case of Edward Williams (GIA/651/2020) and the disseminating of information related to ongoing legal proceedings.

It is another attack by the judiciary on the little people and their right to freedom of speech. It will be enjoyed by the ICO.

It however appears to be legally binding only on the Appellant IN THIS CASE.

Every case like this is fact specific and therefore the ruling can have no broad and sweeping applicability, since every case turns on its own facts.

It is interesting how at paragraph 82 it states that:

There is nothing to stop him from identifying the case... and THE ISSUES in the appeal as identified by him..'

So he can discuss his case, but he is FOREVER prohibited from ever publishing any of the documents or part thereof for all time. That is a disgrace and it needs challenging.

M Boyce left an annotation ()

Yes Jason I completely agree that the permission stage to appeal to the UTT from the judge that heard the case is a joke and a complete and utter waste of time and money. There never has been and never will be a case of a judge deciding to shoot themselves in the head.

Appeal EA/2020/0276 is potentially important for my direct appeal to the UTT: the rights of citizens to receive IMPORTANT information form public authorities like the PHSO should not be summarily dismissed as 'carrying little weight' as it was in my case.

J Roberts left an annotation ()

'It however appears to be legally binding only on the Appellant IN THIS CASE.'

Agreed.

And 'collateral purposes' might not be an issue with some other bodies.

Nonetheless, things are not looking good for openness and transparency.

The judge asked Mr Williams to estimate his success rate in appeals (para. 63). Maybe the judge should have provided some information on the success rate of people who seek meaningful free legal advice and assistance regarding appeals.

If a litigant in person can prove that they have tried and failed to get legal assistance does this materially affect the situation, or would their failure simply be used against them ('The appellant approached X, Y and Z for assistance but they all turned him down - clearly a loser.')?

Judge Wikeley on pro bono (see para. 40):

'The Upper Tribunal has no power (or resources) to provide Mr Williams with a lawyer. It is entirely a matter for him, but Mr Williams may wish to explore the possibility of obtaining free representation at any future hearing from an organisation such as the Bar Pro Bono Unit (www.weareadvocate.org.uk) (although I understand they require a referral from another agency) or a specialist lobby group such as the Campaign for Freedom of Information, which has experience of appearing before the Upper Tribunal in FOIA / EIR cases.'

https://www.bailii.org/uk/cases/UKUT/AAC...

There is also the distinction between the UT (point of law) and the FTT (fact-specific), though I doubt that it would make a difference regarding publication online. The more that is published online the more the public benefit from seeing how the relationship between the ICO, public authorities and the HMCTS works in practice. I don't think they want that!

J Roberts left an annotation ()

Remember Aimee Gasston who worked for the PHSO?

Could this be the same person who now sits on tribunals?

https://informationrights.decisions.trib...

'BeforeJudge Stephen Cragg Q.C.

Tribunal Members

Emma Yates
Aimée Gasston'

Here is an example of an FOI response she was involved with:

' We have responded to a series of information requests you made in one
response which is available to view here:

[1]www.whatdotheyknow.com/request/when_an_in_house_lawyer_working

Yours sincerely

Aimee Gasston

Acting Head of Freedom of Information / Data Protection

Parliamentary and Health Service Ombudsman'

https://www.whatdotheyknow.com/request/y...

J Roberts left an annotation ()

M Boyce,

Latest DN concerning s42:

'44. The Commissioner has not been provided with compelling reasons by the DVLA why the information should be withheld but this may be because specific argument might reveal something about the content of that advice. She has not been provided with clear, compelling, and specific justification by the complainant for disclosing this information. Although she accepts that a significant number of people might well have an interest in this matter she does not consider that this is sufficient to override the confidentiality between lawyer and client. The information was recent and live at the time of the request and the DVLA was engaged in the ongoing consideration of legal issues surrounding it. The withheld information should therefore not be disclosed.'

https://ico.org.uk/media/action-weve-tak...

What 'compelling reasons' did the PHSO provide in your case?

M Boyce left an annotation ()

With regard to your earlier post, I do think it is highly likely that Aimee Gasston is the same person who worked for the PHSO and who now works for the FTT. To be a lay Tribunal panel member you obviously need a fair amount of knowledge about the FOIA, which the PHSO Aimee Gasston obviously had.

I can't see a MAJOR conflict of interest if they are one and the same person - unless she becomes a panel member on an appeal to the FTT about the PHSO. One to look out for.

The PHSO did provide a number of reasons why the legal advice in my case should be witheld - none of these reasons were 'compelling' on close scrutiny.

As in the above case the issue of the advice being 'live' and 'currently relied upon' figured quite prominently. But this contention was and is not sustainable. The internal legal advice (by PHSO lawyer Karl Banister) clearly said that the PHSO review process was not legal, as confirmed by the chief lawyer at the PHSO (Karl Banister) in the December 2017 Board Meeting Minutes. The advice cannot be 'live' and 'currently relied upon' if it was never relied upon, and crucially never acted upon, in the first place. If something is not legal a public authority should not be doing it, or continue doing it.

Advice can only be 'live' and 'currently relied upon'if it has been followed and therefore relied upon. The Tribunal completely ignored this issue in my appeal. It was never discussed at all.

M Boyce left an annotation ()

When you look closely at the published decisions on the GRC website you see something rather alarming: upheld decisions appear connected with the same few judges over and over again. It would appear that whether your appeal is upheld or not at least partly depends on which judge you are lucky or unlucky enough to get.

J Roberts left an annotation ()

I agree with you about Aimee Gasston. If the person sitting on tribunals is the same person who worked for the PHSO, and if she were to sit on a panel to decide a PHSO appeal, it would be a source of concern.

Concerning judges, I believe that they, like the population at large, have different perspectives. Unfortunately, appellants don't get to pick their judges. But the issue of how cases are allocated to ensure fairness interests me:

'The UN Special Rapporteur on the Independence of Judges and Lawyers has argued for a mechanism of objective allocation of cases that “protects judges from interference from within the judiciary”. Otherwise, allocation “at the discretion of the court chairperson may lead to a system where more sensitive cases are allocated to specific judges to the exclusion of others”.'

https://www.dawn.com/news/1610986

I'm not sure how cases in the GRC are allocated to judges.

M Boyce left an annotation ()

i'm also not sure how cases are allocated to judges. It is probably random in the sense that as a judge becomes available then they are given the next case in the queue.

Judges and other panel members are of course all individuals with their own personal views and perspectives and even agendas. The FOIA is also far from an exact science and it permits for substantial latitude in 'interpretation' of the law, especially when it comes to balancing exercises that are part and parcel of the Act.

What concerns me is that some judges, on the statistics, appear to more strongly support disclosure of information than other judges. This is a statistical fact that can be seen from the data.

There is the complicating factor of the other panel members on each tribunal case. To be honest though, I think the other two panel members on each tribunal case are there more for window dressing than anything else. I think the decision is that of the judge and the other two panel members are just there to agree. Occasionally one lay panel member does dissent, but I have not seen a single example of where both dissent.

I did earlier today make an FOI request to HMCTS on this subject, and one of the 'questions' was what happens if the two 'lay'members of a tribunal panel take an opposing view to the judge?

What is certain among all this is that the Tribunal processes are clouded in secrecy and lack of transparency, and this does not promote trust.

M Boyce left an annotation ()

Below is my direct appeal to the Upper Tribunal which I sent off yesterday. Let's see if the UTT also decide to ignore legally binding case law.

Appeal to the Upper Tier Tribunal for Appeal EA/2019/0032.

Reasons for appealing.

I am aware that I can only appeal on errors of law. Below are the six errors of law in this appeal.

(1) INADEQUATE REASONS –

Closed material -

The Tribunal has said what is NOT in the closed bundle, but has actually said very little about what IS in the closed bundle. The only thing it has said is that one document, comprising pages 1-10, includes

‘advice as to what should be prudently and sensibly be done in a relevant legal context.’

This actually tells me very little indeed. The Tribunal has only said this much because it has decided that a small amount of information within that one document should not remain closed. So, in effect it has said absolutely nothing about the nature and subject matter of the closed material.

The Tribunal has made an error of law by not adhering to the binding case law in ‘Browning v Information Commissioner and DBIS [2013] UKUT 236 (AAC) (2013)’. Here, in paragraph 18 it states:

‘More generally, we comment that First-tier Tribunals should consider and give appropriately detailed directions and reasons (i) setting out the nature and subject matter of ANY closed material and hearing, (ii) why they have accepted that they should consider evidence advanced by a public authority (or anyone else) and argument on a closed basis, and (iii) why further information relating to their content has not been provided. If this is done it will provide clarity as to what will be, and has been, considered on a closed basis and why, for example, evidence provided to support an exemption has been so considered and more of it, or about it, has not been disclosed.’

It is very clear that the Tribunal has not set out the nature and subject matter of the closed material. They have revealed a small amount about the RELEVANT closed material, but have said nothing at all about the subject matter of the IRRELEVANT closed material. ‘Browning’ does not make a distinction between relevant and irrelevant closed material. The Tribunal has said nothing at all about this matter - except for a general statement on what is just an axiomatic point of law. According to the case law of ‘Browning’, this constitutes a clear error of law.

In fact, it is clear that the Tribunal and the Respondent’s have done everything they can to all but ignore the case law of ‘Browning’.

On 07 October 2019 the Commissioner sent a further submission to the Tribunal. In that submission they state that the advice sent to the Tribunal from the PHSO was not in scope. They say at paragraph 13:

‘The Commissioner considers the Advice to relate to……. redacted……….’

So, the PHSO, the ICO and the Tribunal all refuse to let me know what was the nature and subject matter of most of the advice sent to the Tribunal. This is not compliant with ‘Browning’ and it is very clearly an error of law.

Browning Court of Appeal –
In the Court of Appeal ‘[2014] EWCA Civ 1050’ Lord Justice Maurice Kay states in paragraph 35:

‘What is also important is that when the FTT excludes both a party and his legal representative it does its utmost to minimise the disadvantage to them by being as open as the circumstances permit in informing them of why the closed session is to take place and, when it has finished, by disclosing AS MUCH AS POSSIBLE of what transpired in order to enable submissions to be made in relation to it. The same commitment to MAXIMUM POSSIBLE CANDOUR should also be made when writing the reasoned decision…’

The Tribunal judge in my case has not opted for the maximum possible candour: the judge considers that two thirds of the closed material is not in scope, but nonetheless it is closed material and I have a right to at least know what was the subject matter of this material – not the detail or the substance - just the subject matter.
The Court of Appeal judgement is legally binding on the FTT.

In the UK Supreme Court case of ‘Bank Mellat v HMT (no.1) [2013] UKSC 38’ Lord Neuberger said at paragraphs 64-74:

(1) ‘Where open and closed judgements are given, it is highly desirable that in the open judgement the judge/Tribunal identifies every conclusion in the open judgement reached in whole or in part…

(2) A judge who has relied on closed material should say in the open judgement as much as can properly be said. Every/Any party excluded from a closed hearing should know AS MUCH ABOUT THE EVIDENCE AND ARGUMENTS AS POSSIBLE.’

This has clearly not happened in my case. I do not know what was the nature of most of the closed material and this is not in accordance with either the Upper Tribunal Judgement, the Court of Appeal judgement or the Supreme Court judgement. The First-tier Tribunal is legally bound by them all. Not to act in accordance with the above three appellate court/tribunal judgements constitutes a material error of law. If the Tribunal had let me know during its investigation of my appeal that the PHSO had sent it largely irrelevant legal advice then I could have further insisted that the PHSO send the Tribunal the relevant legal advice in its possession. If this had happened it could have altered the outcome of my appeal and therefore this constitutes a material error of law.

(2) IRRATIONALITY –

(i) The tempering and restricting of legal advice -

In paragraph 97 of the decision, it states that:

‘We have considered but rejected the Appellant’s submission that there would be no prejudice to the quality of legal advice given to public authorities should the requested information be published. We are satisfied that this issue has been considered at length by the senior courts… We accept the Respondents’ submissions that knowledge that legal advice might be made public is likely to restrict both the advice given and the nature of the advice requested by public authorities.’

I am somewhat puzzled as to why the Tribunal did not provide an example of case law to support this assertion.

I contend that the Tribunal’s assertions that legal advice would be tempered and/or restricted if it were POSSIBLE that legal advice might be disclosed to be highly irrational, and therefore an error of law.

Lord Diplock described the test for irrationality or Wednesbury unreasonableness as:

‘Defiance of logic…..that no sensible person who had applied his mind to the question to be decided could have arrived at.’

I contend that it simply defies logic that any public authority would ask for legal advice to be restricted for fear of possible disclosure under the FOIA, or that any respectable lawyer would restrict his legal advice to a public authority for a similar fear of possible disclosure. It is not only extremely unlikely that they would, but also it would be self-defeating and irrational.

The ‘Mersey Tunnel Association v Information Commissioner’ decision gives a highly instructive analysis, though not a binding one. In paragraph 42 it states:

‘We question whether a public official, concerned to see that his authority acted within the law and therefore seeking advice, would really be inhibited from spelling out the full picture for fear that publication might eventually ensue. We have certainly seen no evidence to that effect, and it would seem self-defeating from a client’s point of view. The very points that, on this argument, they might feel inhibited from revealing, are presumably the very points on which they most wish to seek advice. It is hard to see how an officer could be criticised, even if the weak points are later revealed, for seeking advice to help put them right, to ensure, as Merseytravel put it, ‘that those authorities act within the law.’ We discount the possibility that a public official might seek advice to help his authority act outside the law [yet this is exactly what the PHSO have done in my case]; and if that were to occur, it would be hard to see the public interest in keeping such advice confidential [indeed]. Nor can we see that any professional lawyer would temper their advice for fear of later publication: that would again be self-defeating, to both client and lawyer, to say nothing of the lawyer’s professional obligations.’

If the Tribunal’s analysis in my appeal is correct it must logically mean that public authorities have ALREADY restricted their legal advice and that lawyers have ALREADY tempered that advice. Both public authorities and lawyers know full well what the FOIA 2000 says: they know that it says that legal advice will have to be disclosed if, on balance, it is in the public interest that is should be disclosed. This has happened on a number of occasions, and it is therefore a very real possibility for a public authority.

This must also logically mean, according to the Tribunal’s analysis in my case, that the PHSO had ALREADY restricted their request for legal advice and that their lawyers had ALREADY tempered that advice – both for fear of possible later disclosure under the FOIA. Given that the advice was both restricted and tempered, the disclosure of this now anodyne advice would and should pose no problems. This is the irrefutable logic of the Tribunal’s analysis.

(ii) Transparency vitiated by lack of definitiveness -

In paragraph 92 of my appeal Decision it states:

‘…As previously noted, we accept his submission that there is a STRONG public interest in transparency in relation to decisions made and processes followed by the PHSO. HOWEVER, we accept the Respondents’ submission that publication of the withheld information is unlikely to achieve this aim. This is because, as noted by both Respondents, this legal advice is just one person’s opinion as to the legal status of the review process. It is neither binding and not representative of a definitive view.’

The reasons given here are also irrational and are therefore a material error of law.
It is not irrational to state that the legal advice is just one person’s opinion, and it is not irrational to state that the advice is not definitive, but it is irrational to state that the strong public interest in transparency would therefore unlikely be achieved because of this. Transparency is not dependent on definitiveness. The strong public interest in transparency is achieved because the advice would indicate – and that is all legal advice can ever do – whether the PHSO’s review process was legally allowed or not, and then whether this advice was followed or not.

The Tribunal are disqualifying the strong public interest in transparency on account of this legal advice being from just one person and that the advice is not definitive. How many lawyers would it take to make the advice legally binding? This is not a joke. The Tribunal have failed to estimate this number. I contend that no matter how many lawyers were involved it could NEVER make the advice legally binding, since only a judge can give binding ‘advice’. Therefore, it makes no difference whether it is just the advice of one lawyer or the advice of a thousand lawyers. The Tribunal’s analysis necessarily means that the advice of lawyers is worthless in terms of the public interest factor of transparency. I contend that this argument put forward by the Tribunal is so absurd that it is irrational.
The Tribunal also assert that the legal advice is not definitive. This argument fails for much the same reason as given above: only a judge can give definitive legal ‘advice’ – as a legal ruling. It must be said, however, that the legal advice given to the PHSO is perhaps as close to being definitive as it is possible to be. The legal advice was from Karl Banister, who is both Deputy Ombudsman and chief lawyer at the PHSO, and who has served in both roles for many years. Apart from a judge, there is no other person that is perhaps as well qualified to give DEFINITIVE legal advice on the PHSO review process than the chief lawyer and Deputy Ombudsman.
The Tribunal’s analysis that transparency is unlikely to be achieved because the advice is not definitive is irrational and therefore an error of law, since it is not possible for any legal advice to be definitive and transparency does not have to be contingent on a counsel of perfection. In the real world, legal advice, however imperfect it may be, can be of public interest in matters of public interest. It is a material error of law, based on irrationality, to argue that it is unlikely to be.

(3) MISUNDERSTANDING AND MISREPRESENTATION OF CASE LAW –

In paragraph 97 of my Decision it states that:

‘We have considered but rejected the Appellant’s submission that there would be no prejudice to the quality of legal advice given to public authorities should the requested information be published. We are satisfied that this issue has been considered at length by the senior courts…. and that knowledge that legal advice might be made public is likely to restrict both the advice given and the nature of the advice requested by public AUTHORITIES.’

I am assuming that the Tribunal is at least partly referring to the case law from the senior court below:

‘DCLG v The Information Commissioner & WR [2012] UKUT 103 (AAC) (28 March 2012)’

In the Commissioners Response they state:

‘The Upper Tribunal has also recognised the strong public interest in preserving legal privilege. In ‘DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC)’ the Tribunal underlined the importance of the system of legal privilege to a fair and proper judicial process and considered that weight should be attributed not only to the need to maintain legal privilege in that case but also to the more generalised risk that disclosure would weaken the confidence of public bodies and their advisers in the efficacy of the system of legal privilege (at [67]).’

This is a perfect example of the Commissioner misrepresenting what the Upper Tribunal actually said and meant. At the subheading (i) ‘Would disclosure of the information adversely affect the course of justice?
67. In our judgement the answer to that judgement is plainly ‘yes’….But we do find that at the material time disclosure would have had an adverse effect on the course of justice by reason of the weakening of general confidence in the efficacy of LPP which a direction to disclose advice given IN THE CIRCUMSTANCES OF THIS APPEAL WOULD CAUSE. There were in our judgement NO particularly special or unusual factors of this case which would have justified public authorities and their legal advisers in thinking, were disclosure IN THIS CASE to be directed, that they would not be at risk, in the broad generality of cases, of having to disclose communications seeking or giving legal advice.’

And in paragraph 68 it states that:
‘We have already commented that on the FTT’s finding… that ‘the advice itself is so slight as to be almost invisible.’

And in the conclusion at paragraph 74 it states:

‘…THE FACTORS IN FAVOUR OF DISCLOSURE WERE, IN THE PARTICULAR CIRCUMSTANCES RELATIVELY WEAK, and if disclosure were to be directed IN THIS CASE the loss of confidence in the efficacy of LPP in respect of environmental information would be considerable…’

What all this means is that the factors favouring disclosure IN THIS CASE were relatively weak and that the legal advice was very slight. Neither of these caveats apply in my appeal. The Tribunal in my appeal states:

…’while the Appellant has presented SOME STRONG ARGUMENTS IN FAVOUR OF DISCLOSURE…’

There is also no indication that the legal advice in my case is ‘so slight as to be almost invisible.’
The UTT case of ‘DCLG’ therefore has very little relevance indeed to my case. DCLG is only relevant when the factors favouring disclosure are weak and the legal advice is slight. In my Appeal the factors favouring disclosure were strong and there was no indication that the legal advice was slight.

(4) FAILURE TO HAVE REGARD TO MATERIAL EVIDENCE –

(I) Relevant in-scope legal advice and discussions not sent to the Tribunal -

In paragraph 81 of Appeal EA/2019/0032 it states:

‘Having considered the closed material with care, we agree with the Commissioner’s submission that the emails included in the closed bundle are not in scope for the purposes of this appeal.’

And in paragraph 82 it states:

‘We are satisfied that the external legal advice, which was not considered by the Commissioner during her investigation, does not relate to the review process carried out by the Customer Care Team and is therefore not in scope.’

Is it likely, on the balance of probabilities, that no emails exist on the PHSO review process? The answer is no. I provided emails on this subject which had been provided to another FOI request to another requestor which stopped dead on 02 March 2017. There must be more.

Is it likely, on the balance of probabilities, that the PHSO do not possess any external legal advice on the PHSO review process? The answer is no. They appear to possess external legal advice on the re-opening process, so why not on the review process?

Whether or not the PHSO does possess emails and external legal advice on the review process, it is an error of law for this Tribunal not to have investigated this: investigation is part of its inquisitorial function.

The Tribunal fails to mention in its decision that it had concluded in May 2020 that:

‘….we are of the view that this appeal is not suitable for a decision on the papers….’

Then, because the PHSO and the ICO would not attend the hearing, the Tribunal decided it was in fact suitable for a determination on the papers. The Tribunal have not explained to me the reasons for this volte face. I stated that I would attend the hearing, but only if the Tribunal had any questions for me to answer or any clarification they needed from me. They replied that they had no questions for me.

In the Tribunal decision at paragraph 72 they state:

‘The PHSO has made no specific submissions in relation to the external legal advice and the extent to which this is in scope…’

The Tribunal also states that the ICO did not consider this external legal advice.

Therefore, why did the Tribunal decide it could decide the case without a hearing?

It is also noticeable that none of these IMPORTANT events were mentioned at all in the Tribunal’s decision.

In my ‘very last submission’ to the Tribunal (in fact not my last, but the last acknowledged and considered by the Tribunal) I stated the following:

‘If the Tribunal do concur with the Commissioner that the advice is not within scope, then at that point I would respectfully ask the Tribunal to invoke paragraph 16(1)(b) of the GRC Rules: ‘Order any person to answer any questions or produce any documents in the person’s possession or control which relate to any issue in the proceedings.’

I asked for documents concerning the review process (which in my analysis overlaps/conflates with the re-opening process, and if these have not been submitted to the Tribunal then they should now be submitted.’

The Tribunal seem to have ignored this request. The Tribunal proceeded to decide the case on evidence which it deemed to be largely irrelevant (out of scope). The Tribunal may not have had the power to compel the PHSO and the ICO to attend a hearing, but it did have the power to compel them to answer any questions and provide the in-scope material. It did not do so. This is a most astonishing and shocking state of affairs. The Tribunal have made a serious error of law by not calling for and then not considering the in-scope material. How can an appeal possibly be fair if the Tribunal considers a case on largely irrelevant (out of scope) material?

(ii) Public Service Ombudsman –

In paragraph 42 of the Decision it states:

‘The Appellant further submits that publication of the legal advice would support the objective of an Ombudsman being a modern, fair and transparent organisation. He describes the creation of a review process by the PHSO as an obstacle to the ability of parties affected by a PHSO decision to bring judicial review proceedings, since reviews are rarely completed within the three-month time limit’ [and reviews are not justiciable because they are not legally permissible].

I had discussed at some length throughout my submissions to the Tribunal, and particularly pages 27-29 of my first submission to the Tribunal just how crucial publication of the legal advice on the PHSO review process could be in pushing forward the agenda for the new proposed Public Service Ombudsman (PSO). Some later evidence I submitted was not even acknowledged, let alone considered (doc.1). Indeed, I regarded and regard this as so important that it is THE single most important public interest factor for disclosure of the legal advice. The new PSO would obviate the need for a non-legal and highly ‘muddled’ review process, because instead it would allow the PHSO to re-open flawed final decisions (doc.2) – something that the PHSO had abandoned in 2015-16 because legal advice it had obtained and legal rulings (the ‘ex parte Monica Dyer High Court of Justice 1993’ decision) had confirmed it had no legal capacity to undertake re-opening of its final decisions because it was functus officio at the issuance of its final decisions.
I also made it clear in my submissions that the PHSO was also functus officio with regard to its reviewing of its decisions, a fact that the PHSO publicly acknowledge. The Tribunal made a further error of law by not taking this into account in its consideration of its public interest balance. I agree that it is not within the remit of the Tribunal to decide what processes used by the PHSO are legal or are not legal, but it is within their remit to consider the public interest in the fact that the Ombudsman are continuing to review decisions against their own legal advice and equally against their public pronouncement that reviews are not legally allowed.

The PHSO have fully welcomed the proposed replacement of itself with this new modern fairer, more legally empowered and more efficient PSO. The Parliamentary and Constitutional Affairs Committee (PACAC) have also fully welcomed this proposal (doc.3). The major fly in the ointment is the Government, who over the last 6 years or so have misunderstood this issue, claiming that the PHSO already have the legal power to re-open decisions by virtue of this draft legislation for the PSO (doc.3), and have repeatedly kicked Ombudsman reform into the long grass. This crucial reform has been called for almost from when the PHSO was established over 50 years ago, and every year the Government ignore these calls for reform. The Government have recently confirmed that they have no intention of introducing legislation for the creation of the PSO anytime soon, despite the serious criticisms and admonition by PACAC (doc.1).
The PHSO publicly admit that their review process is not legal and they have abandoned their re-opening process for the very same reason. Put simply, the PHSO are completely hamstrung by their outdated, inefficient and unfair legislation, a fact made patently clear by Judge HH Shanks in Appeal EA/2019/0334. The publication of the legal advice could be very important in showing to the Government and the public that this legislative reform is absolutely crucial and urgent for a modern Ombudsman service.
The Tribunal have completely failed to have regard to this material evidence. The publication of the legal advice about the review process is one of the strongest public interest factors imaginable in this case and for the reasons I have outlined. The Tribunal not having regard to this evidence represents a material error of law. This is an arguable error of law because this information is of such importance in and around the public debate about Ombudsman reform and the vital role that the Ombudsman plays in society. This fact is also reinforced by the recent decision of ‘David Platts v Information Commissioner (EA/2020/0276), where the Tribunal uphold this appeal, as summarised in paragraph 12 of that appeal:

‘In the circumstances of this case the question of transparency to a citizen as to their rights outweighs the need to protect legal professional privilege.’

The First-tier Tribunal might argue that they have had regard to the material evidence in my case, but simply stating that I submitted that the publication of the legal advice would support the objective of a modern, fair and transparent Ombudsman is my discussion, my reasoning and my conclusion – and not the discussion, reasoning or conclusion of the First-tier Tribunal. They have completely failed to have REGARD (analyse) this very important material evidence, and this is not just arguably, but is undeniably, a material error of law.

(5) FAILURE TO GIVE EFFECT TO A BINDING DECISION OF THE UPPER TRIBUNAL –

(i) ‘Savic v IC, AGO & CO [2017] UKUT AACR 26 -

In the case law of ‘Savic v IC, AGO, & CO [2017] UKUT AACR 26’ it states in paragraph 35:

‘…We take the view that if the information sought under FOIA is relevant to, or might be or might have been of use in existing, concluded or contemplated legal proceedings this ADDS TO THE WEIGHT of the factors against disclosure…’

Yet in paragraph 99 of my Appeal the Tribunal states:

‘As a consequence, we have afforded SIGNIFICANT weight to this public interest against the publication of the requested information…’

In Appeal EA/2019/0189 Nicholas Wheatley v ICO it states in paragraph 96:

‘…Although no litigation is ongoing or contemplated, we accept that there is a real possibility of a legal challenge to the Ombudsman’s approach. This adds SOME LIMITED WEIGHT to the interest in the maintenance of legal professional privilege.’

And in Appeal EA/2006/0044 Mr Trevor Kitchener v ICO it states in paragraph 19:

‘…We do not for a moment express a view on whether disclosing the Barrister’s advice could or would give rise to legal proceedings; but supposing that it could, that seems to us, if anything, an argument in favour of disclosure, since as we said earlier, it is in the public interest that public authorities should be able to be called to account, WHERE APPROPRIATE’ [emphasis mine].

I couldn’t agree more that where it is appropriate public authorities should be held to account. The Tribunal does not seem to agree. The PHSO have publicly declared that what they are doing is not legal – it is appropriate and significantly in the public interest that their legal advice should be disclosed in this case.

So, the Tribunal accords SIGNIFICANT weight in Appeal EA/2019/0032 and SOME LIMITED WEIGHT in Appeal EA/2019/0189 and declares that it is in the public interest to disclose legal advice in Appeal EA/2006/0044.

All three are incorrect in law. The legally correct approach, and the legally binding approach, is rightly set out in the case law of ‘Savic’: ‘ADDS TO THE WEIGHT’. It is a clear material error of law to attach too much weight to this factor as the Tribunal have done in Appeal EA/2019/0032.

(ii) DBERR v IC [2009] EWHC 164 -

In paragraph 89 of Appeal EA/2019/0032 it states:

‘However, we reject the view expressed by the Commissioner in paragraph 16 of the Decision Notice that only in very exceptional cases can the inbuilt public interest in LPP be overridden when considering where the public interest lies. In our view every case must be considered on its own merits, and it would be AN ERROR to seek to limit the application of the public interest test…’

So, the Tribunal conclude it would be an error, but they do not conclude that it would be an ERROR OF LAW. There is a fundamental legal and not just linguistic difference between the two: if I forgot to get some milk from the shop, that would be an error, but it would not be an error of law.

In Appeal EA/2020/0224 the same judge as in Appeal EA/2019/0032 states in paragraph 30:

‘If the DN contains an error of law the FTT must allow the appeal and must substitute the notice.’

The case law on this matter is ‘DBERR v IC [2009] EWHC 164’. In paragraph 41 it states:

‘It is also common ground, however, that the task of the Tribunal, ultimately, is to apply the test formulated in section 2 (2)(b). A person seeking information from a government department does NOT have to demonstrate that ‘exceptional circumstances’ exist which justify disclosure..’

This could not be any clearer. The DN contains an error of law and not just an error. I made it very clear in my final submission to the Tribunal that the ‘extreme exceptionality’ argument advanced by the ICO was contrary to both statute and the case law. The Tribunal nowhere acknowledge this fact. I firmly believe that the Tribunal has behaved in a deeply cynical way, in stating that the DN only contained an error and not an error of law. By doing this they would not have to allow the appeal on this point.

Equally cynically, the ICO in paragraph 53 of the Tribunal decision state that it would be an error of law – not just an error - not to attach significant weight to the inbuilt weight in withholding LPP material. Yes, and it is equally an error of law to attach too much weight – very exceptional circumstances.

In Judge Macmillan’s refusal for permission to apply to the UTT she states in paragraph 10 d that:

‘The Appellant’s other grounds, although described as errors of law, amount in reality to a repetition of the Appellant’s written submissions and to expressions of his disagreement with the Tribunal’s Decision’.

This is a most shocking abrogation of the judge’s duty to provide a proper rebuttal of my grounds of appeal. It is not fair and not legal to just dismiss my grounds as mere repetition and disagreement. I have made cogent arguments as to why they amount to errors of law. I am left utterly dismayed at this serious breach of trust that we all place in judges to be fair and transparent. I believe that the judge has chosen not to properly address my grounds of appeal because she cannot make a case to do so. She knows that the case law of ‘O’Brien’, ‘Savic’ and ‘DCLG’ is binding on the FTT and she has chosen to ignore it.

(6) UNFAIR PROCEDURE –

In the conclusion to the decision for EA/2019/0032, at paragraph 103 it states:

‘In the normal way, a copy of this decision was sent to the Commissioner and the PHSO for them to check the draft and make REPRESENTATIONS as to whether any parts of the decision should not be disclosed…’

I consider this to be profoundly unfair to me and is demonstrative of bias – actual or perceived.
In EA/2017/0232 ‘O’Hanlon v ICO’, it states:

‘…. Under public law APPARENT bias is enough to condemn a decision… the question is ‘whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased.’

In my case the fair-minded observer could not fail to conclude that the decision maker (be that the judge or the ICO/PHSO) was biased. Allowing the PHSO and the ICO to potentially decide what information, if any, should be disclosed in the draft decision appears deeply biased in favour of the Respondent’s and deeply unfair towards me.

The case law on this issue includes ‘Bubbles & Wine Ltd v Lusha (2018) EWCA. In paragraph 17 it states that:

‘..bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case.’

Allowing the Respondent’s to make representations on the draft decision was a clear error of law, in terms of procedural fairness. There is also nothing in the GRC Rules on the issue of allowing Respondents to make representations on a draft decision. The GRC have issued a Practice Note on closed material which states that the circulation of drafts to Respondents may be ‘prudent’, but this is not a Practice Direction and therefore does not have the full force of law. The Tribunal appears to have acted ultra vires by circulating the draft decision to the Respondent’s.

The Tribunal also states that allowing the Respondent’s to make representations is ‘normal’. If this process is so normal, then why is it so rarely publicised? I have only seen one other example (EA/2014/0320) of where a Respondent was allowed to make similar representations.

Why also did the ICO repeatedly ignore my emails asking them if they had received a draft decision? This only adds to the perception of bias.

In GIA 0384 2011 01 - ‘Draft Judgements to be circulated with caution’ – it states in paragraph 27 that:

The circulation of draft judgements ‘will be the EXCEPTION rather than the rule..’

A further issue that gives rise to the perception of bias and unfairness is the length of time that the Respondent’s were given to make such representations. They were allowed nearly six weeks to do so. I understand that things are difficult for us all in a pandemic, but it remains procedurally unfair to give the Respondent’s an advantage in proceedings. If the Decision had gone in my favour, this would have given the Respondent’s far longer to prepare an appeal than I have been given, not to mention ample opportunity to make representations on what should or should not be disclosed. This also represents procedural unfairness and is therefore an error of law.

In Article 6 of the European Convention on Human Rights, it states:

‘In the determination of his civil rights and obligations…. everyone is entitled to a fair and public hearing within a reasonable time by an independent and IMPARTIAL tribunal established by law.’

The Tribunal’s actions by allowing the Respondent’s to make representations may also have contravened Article 6 of the ECHR.

M Boyce left an annotation ()

Appeal EA/2019/0032 was promulgated on 13 May 2021. In that Decision it stated that a very small amount of information should be disclosed to me within 28 days.

This did not happen and I had to force the PHSO to give me this information today.

In paragraph 85 of the Tribunal Decision it states that:

'.... We consider this to set the review process in context to some extent and....to help illustrate the legal status of the post-decision review process.'

So here is the information that has now been released to me, and I have quoted it word for word:

'BUSINESS PROCESS REVIEW, KEY PRINCIPLES, IMPLICATIONS AND LEGAL ISSUES.

Background and current work -

1. Following the MORI stakeholder research and development of our Roles, Purpose and Values statement, a group of about 40 staff from across the business undertook a fundamental review of our business process. The outputs from that exercise were documented and shared with all staff. The process has been updated and adjusted based on feedback from staff and is being used to drive the customisation of the new case management system. A chart outlining the key stages of the revised process and the principles involved is attached at Annex A.

2. The revised process is being tested by various groups of staff:

Gateway - Customer Services staff have already adopted many of the principles, and revised working methods will be introduced as technology and system functions become available. A revised structure for this team and the new HSC Triage function has been agreed and will be implemented shortly.

Triage - HSC Triage is now being managed in accordance with the revised process. PCA will start testing a variety of different ways of managing this stage of the process in December.

Investigation - The full, revised process is being tested by the Continuing Care Experimental Team, and by teams of new SIO's, their managers and mentors, in both HSC and PCA. Certain individuals and their managers are also testing aspects of the process in PCA and HSC.

Compliance - Compliance planning is part of investigations. Various methods for monitoring and ensuring compliance will be tested over the next few months.

Post Decision - A trial of the post decision letter review process has been set up. The team is registering all PD letters received and is dealing with 10% of post decision correspondence in accordance with the new process.

Actions required

5. The meeting is asked to approve the principles of the revised Business process as outlined in Annex A and, guided by the debate on issues arising from the Legal review, identify areas where further guidance for investigations staff is required and what the basis of that guidance should be.

LEGAL REVIEW OF BUSINESS PROCESS - ISSUES AND ADVICE PROVIDED.

LEGAL REVIEW OF BUSINESS PROCESS - NOTE OF DISCUSSIONS.'

The above document is undated.

How does any of the above, as alleged by the Tribunal, 'illustrate the LEGAL STATUS of the post-decision review process'?

Any suggestions?

The above information is utterly irrelevant, and says nothing at all about the LEGAL STATUS of the review process. The legal status means whether the review process is deemed to be legal or not.

I will be using the above information in my further appeal to either the UTT or the Court of Appeal.

M Boyce left an annotation ()

https://assets.publishing.service.gov.uk...

The above Upper Tribunal Decision is case law and therefore legally binding on the FTT. It is a pity that the judge in my appeal to the FTT chose to ignore it. She must and she will be challenged on this.

It states in F:

'The requester has exclusive power to formulate a request....The terms of the request are a matter for the requester. No one else has any power to change it... Nowhere is there power for the tribunal to change the wording of the request.'

Yes, but try telling that to the PHSO, the ICO and to the judge in my case. All decided that they, and they alone, would decide what information I had asked for. They all refused to let me know what information was sent to them by the PHSO so that I would be unable to offer any clarification about my request.

I explicitly asked for all information about the PHSO review process - that is literally what I asked for - but they all decided that I had only asked for information about the Customer Care Team (CCT) review process.

The FTT must not be allowed to effectively re-write requests, and must not be allowed to subvert the FOIA in this way to work to their collective and collusive advantage.

J Roberts left an annotation ()

Is this the FOIA equivalent of the politician who responds with the same soundbite to any question they are asked, 'or an instance where the IC has uncritically accepted the assertions of'* the PHSO? In fact, it looks like something worse.

* EA/2020/0187V

https://informationrights.decisions.trib...

M Boyce left an annotation ()

It does look like something worse, and it is deeply concerning. I am becoming very concerned indeed.

M Boyce left an annotation ()

The PHSO's 'Annual Report and Accounts 2020-21' have been published today.

A few brief observations:

The Report states that our decisions are FINAL, but we will REVISIT a decision if the decision was wrong.

Am I missing something here? How is it possible to revisit something that is final? What does the word final actually mean? Does it mean something that is not-final?

97 FINAL decisions appeals were upheld after RE-VISITING. But what does upheld mean? A fresh investigation?

There is now no mention of the number of judicial reviews. Why not?

J Roberts left an annotation ()

Thanks for the info.

And I don't think you are missing anything.

Link:

https://www.ombudsman.org.uk/sites/defau...