Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decisions of the First-tier Tribunal (made on at under references EA/2013/0145, 0148 and 0149) involved the making of an error in point of law, they are SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the cases are REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A.        The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal.

B.        The Department for Work and Pensions accepted before the First-tier Tribunal that the information contained in the High Level Milestone Schedule could now be disclosed.

Reasons for Decision

A.        Introduction

1.         This case concerns requests made by Mr Slater and Mr Collins for information relating to the implementation of universal credit, a new benefit being introduced by the Department for Work and Pensions.

2.         Mr Collins’ request was made on 1 March 2012. Mr Slater’s was made on 14 April 2012. Both requests were refused and both refusals were confirmed on internal review. This led to complaints to the Information Commissioner, who decided that some of the documents concerned should be disclosed. This led to appeals to the First-tier Tribunal by Mr Collins, Mr Slater and the Department. The tribunal decided that all the information sought should be disclosed apart from the names of officials.

3.         I gave the Department permission to appeal to the Upper Tribunal and held an oral hearing of the appeal on 15 July 2015. Julian Milford of counsel represented the Department. Robin Hopkins of counsel represented the Information Commissioner. Mr Slater spoke on his own behalf, supported by his wife. I am grateful to them all for their arguments. Mr Collins has not taken any part in the proceedings before the Upper Tribunal.

B.        The documents in issue

4.         The information involved in these cases is contained in four documents used by the Department in relation to the implementation of universal credit.

5.         Before I come to those documents, I will mention another document: this is generally referred to in the papers as the Starting Gate Review, although the tribunal also referred to it as a Gateway Review. It formed part of Mr Collins’ request, but was later discovered to be available to the public on the web. It is relevant, because the First-tier Tribunal mentioned it in its decision, although I was told that it was not shown a copy. I have not seen a copy, although Mr Slater told me that he had one and offered to provide it if I wanted to see it. 

6.         I now come to the four documents containing the information in issue.

7.         The Risk Register lists problems that might happen and action taken to prevent them. It is a long document, running to 100 pages, with analysis of each of the potential problems.

8.         The Issues Register lists problems that have happened together with action being taken to resolve them. It is a short document with only seven entries.

9.         The High Level Milestone Schedule is a timeline containing the numerous steps necessary to implement universal credit, together with the date when the step should be complete and markers to indicate whether the step is complete, at risk or missed. It consists of an A3 sheet. As Mr Hopkins pointed out, the Department’s grounds of appeal did not relate to the tribunal’s reasoning on this document. At the end of the hearing, Mr Milford accepted that this document could now be disclosed.

10.      The Project Assessment Review differs from the other documents. Unlike them, it is not compiled by the project team, but is an assessment of progress from the outside. It sets out the findings of the review team together with areas of concern and recommendations. It consists of 30 pages.

C.        The legislation

11.      These are the relevant provisions of the Freedom of Information Act 2000:

2 Effect of the exemptions in Part II

…

This sectionnoteType=Explanatory Notes has no associated

(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—

…

(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

36 Prejudice to effective conduct of public affairsE+W+S+N.I.

This sectionnoteType=Explanatory Notes has no associated

…

(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—

…

(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

D.       How the First-tier Tribunal went wrong in law

12.      I need only quote one paragraph of the tribunal’s reasons. The tribunal was considering what was called in argument the ‘chilling effect’ of disclosure: it would discourage candour, imagination and innovation among officials if the information would be made public. This was supported by evidence from Ms Sarah Cox. As part of its reasoning on the chilling effect, the tribunal commented on what it saw as the deficiencies of her evidence:

62. However, we note that there is no evidence to support the claim that this is or is likely to be the effect of disclosure. If it is, then government departments have been in the best position over the past ten years to note, record and present the evidence to prove it. Presumably, a simple comparison of documents before and after disclosure demonstrating the change, would be quite easy to assemble and exhibit. Ms Cox did not suggest that the revelation by a third party of the ‘Starting Gate Review’ requested by TC [Mr Collins] had inhibited frank discussion within UCP [the universal credit project]. The same objection was raised in relation to disclosure of that Review as of the PAR [Project Assessment Review].

13.      There are two problems with the reasoning in that paragraph. The first concerns the expectation that the tribunal had of the evidence that should be available if a chilling effect were operating in relation to this type of information. I accept Mr Milford’s argument that that was imposing an unrealistic and unattainable standard for the Department to meet. It is possible that disclosure has actually caused some officials to be more circumspect in what they put into project documents, but it is likely that this would be difficult to prove at all and especially difficult to show by the simple comparison suggested by the tribunal. It is unlikely that the officials would admit what they were doing or provide a paper trail by which it could be demonstrated. As the tribunal said, it had to use its own knowledge of ‘behaviour in the workplace’ when assessing evidence. If the chilling effect was operating, it is realistic to expect officials to be subtle rather that leave themselves open to criticism from superiors or from outside Government.

14.      The second problem concerns the Starting Gate Review. The tribunal relied in part on the absence of any evidence of a chilling effect as a result of the disclosure of information in that Review. There are two deficiencies in that approach. For one thing, Ms Cox gave evidence that the Review was not as detailed or as specific to the project as the Project Assessment Review. So the tribunal should have been alert to the possibility that it was not sound to reason from the effect of disclosure of that document to the disclosure of a different document. This leads to the other deficiency in the tribunal’s reasoning, which is that it did not have that document before it. It could not, therefore, judge the extent to which the comparison it was making was justified by the nature and content of the document.

15.      I accept Mr Hopkins’ argument that my jurisdiction is limited to issues of law: sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007. I accept, as part of that, that it is not permissible for me to find an error of law by undertaking my own analysis of the evidence and substituting that for the tribunal. This reflects the fact that the assessment of evidence is a matter of judgment. But this does not mean that the Upper Tribunal does not police the assessment of evidence. It ensures that the assessment is rational and that the tribunal gives adequate reasons to explain what it has done. I consider that the inadequacies in paragraph 62 demonstrate reasoning that is not rational.

16.      That is not, though, the end of the matter. The paragraph in which I have identified deficiencies is but part of a long and detailed analysis of the evidence. I now have to decide whether the deficiencies mean that the decisions as a whole were in error of law. To put it another way, are the deficiencies sufficient to contaminate the decisions as a whole?

17.      Neuberger LJ explained the approach to take in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 at [46]:

Of course, as Jacob LJ said in argument, the issue cannot be resolved simply by asking how many of the Tribunal’s reasons survive. The issue has to be determined partly by reference to the probative value of those reasons, both in absolute terms and by comparison with the rejected reasons, and objectively, but also subjectively, in the sense of seeing what weight the tribunal gave to the various reasons it gave. The issue also has to be determined bearing in mind the overall picture including reasons which a tribunal would have had, but which were not expressed. An example would be the impression made by a witness (a factor which is not, in my view, high in the hierarchy of cogency, especially in an asylum case which will normally involve an appellant from a very different cultural background from that of the Tribunal).

And, as Lord Neuberger, he made the same point in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] 1 WLR 413 at [51]:

… a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.

18.      Applying that approach here, I consider that the deficiencies in paragraph 62 do render the tribunal’s decisions in error of law. It is certainly possible that the tribunal would have reached the same conclusion anyway. It had some pertinent observations about the choice of Ms Cox as a witness and about the limitations on and value of her evidence. Paragraph 62 is, though, an important part of the tribunal’s reasoning. The tribunal came to the conclusion that the Department had not made out its case. It was entitled to take the absence of evidence into account if that evidence ought to have been available to support the case if it were valid. It is that part of the tribunal’s analysis that is flawed. It imposed an unrealistic expectation of what ought to be available and compounded its error by equating the documents before it with another document of a different nature that it had not seen. It may be that the tribunal would have rejected the case anyway, but it is also possible that a more realistic attitude of what was possible might have forced the tribunal to rely more on probability and human nature as a guide to assessment Ms Cox’s evidence.

E.        Some other issues

Predictive and normative approaches

19.      I do not accept Mr Milford’s argument that the tribunal applied a normative rather than predictive approach to the behaviour of officials. I accept his argument that sections 2 and 36 require the tribunal to take into account the actual effect that disclosure could have rather than the effect it should have. I also accept Mr Hopkins’ argument that it is relevant to consider how officials ought to react in assessing evidence on how they would react.

20.      Having re-read the tribunal’s reasons, I cannot find anything to persuade me that the tribunal took the wrong approach. There may be some isolated passages that support Mr Milford’s argument, but taking the tribunal’s reasons as a whole I am satisfied that it did not make this error. At most, it was doing what Mr Hopkins suggested: using what officials ought to do as an evidentiary consideration.

Rational reaction to disclosure

21.      There is one factor that troubles me about the tribunal’s reasoning, although it is not necessary to decide whether this involved an error of law. The tribunal’s reasoning show no recognition of the trouble that can be caused by the media taking a selective approach to what it publishes and putting its own spin on that material. The tribunal’s reasons seem to assume a rational and objective media operating as a responsible overseer on behalf of the public. No doubt, some of the media do behave in that way, but some do not. It is not difficult, looking at the Risk Register, to see how a journalist or blogger with an agenda could select and present parts of the material in a way that would generate attention and attract criticism of the Department. To take an example at a fairly general level, the officials may have identified a possible, difficult problem that requires a lot of action, which is itemised in the register. Objectively, that might seem responsible conduct. But to someone with a different point of view, it could easily be presented as evidence of a project that is in trouble, or as evidence of waste of public funds on a flawed project. This could generate media attention, which would in turn require a response from ministers, leading to the sort of disruption of normal business that Ms Cox explained in her witness statement. I mention this merely as a warning to tribunals that they should take account of the realities of how some sections of the media work and of the impact this can have.

22.      The tribunal did discuss the public relations handling of the project. But again the discussion seems to assume that problems can be anticipated and planned for. That is certainly true of some problems, but not of all. There is no limit to the ways in which seemingly innocuous details can be used as a means of causing trouble.

23.      Mr Hopkins objected when I raised this possibility (which I had mentioned in my grant of permission), saying that this involved the ‘distraction’ argument, whereas the Department’s appeal concerned only the ‘chilling effect’. I do not accept that the issues can be kept in such self-contained boxes. The distraction and disruption that such headlines might cause could also have a chilling effect on what the officials put on record.

F.        A final thought

24.      Mr Milford accepted at the permission hearing that the more historic the information being released, the less the impact is likely to be. At the end of the substantive hearing, he accepted that the High Level Milestone Schedule could now be released. It is possible that, on reflection, the Department may accept that it is not worth at this stage pursuing the case in respect of some or all of the other information. That is just a thought; it is not a matter for me.

 

Signed on original on 20 July 2015

Edward Jacobs Upper Tribunal Judge