Neil Wilby Media

It is a near certainty that in a Tribunal hearing in England and Wales there has never been a case where every party to it, including the Registrar, has come in for criticism from the presiding judge.

In case reference EA-2023-0142, the First Tier Tribunal of the General Regulatory Chamber (Information Rights) handed down a decision on July 18th, 2023, following a hearing five days earlier, summarised as follows:

Parties Involved:

• Appellant: David Willingham
• Respondent: The Information Commissioner
• Requestee: The Parliamentary and Health Service Ombudsman (PHSO)

Decision Summary: The appeal by David Willingham was allowed by the Tribunal.

Background: The case revolved around a request made by Mr Willingham on September 5th, 2022, seeking specific information related to the PHSO Governance Framework. The PHSO initially responded, stating that they did not hold the requested information. Subsequently, the Information Commissioner issued a Decision Notice on February 13, 2023, concurring with the PHSO’s stance that they did not possess the requested information. That was the decision under challenge. The appeal was deemed suitable to be determined on the papers.

Issues Addressed: The Tribunal had two primary issues to address:

1. Whether the PHSO held the information requested by David Willingham.
2. What actions, if any, should be ordered in response to the outcome.

Key Findings and Conclusions:

1. On the first issue, the tribunal determined that the PHSO Governance Framework did indeed fall within the scope of the request, as it contained conduct standards for members of the PHSO board, including the Ombudsman, Mr. Rob Behrens. Since Mr. Behrens was a member of the board and the Chair, the Governance Framework applied to him, making it information relevant to David Willingham’s request.
2. As a result of the above finding, the tribunal concluded that the PHSO did hold the information in question, which contradicted the previous stance of the PHSO and the Information Commissioner.
3. However, in light of the fact that David Willingham already possessed this information before he made his complaint to the Information Commissioner, the Tribunal decided not to order any further actions by the PHSO. They deemed it inappropriate and disproportionate to instruct the PHSO to provide a new response for information that the appellant already had in his possession.
4. The tribunal also noted that they lacked the authority to impose a penalty on the PHSO.
5. Mr Willingham came in for robust criticism from the Tribunal judge in these terms: “There is no realistic prospect of any tangible advantage to the appellant in succeeding in his appeal, such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of the use of scarce Tribunal resources and expense to the public purse. In the Tribunal’s view this appeal is an abuse of process and a waste of public money.
6. The Registrar also felt the chill wind, but more obliquely, as the judge noted that ‘it was unfortunate that there were no case management directions made in this case’.  Which, in the judge’s view, meant that the Panel had already convened to hear the appeal before it was realised that it was, very largely, a non-issue.
7.  The Information Commissioner didn’t escape censure, either:  “The Commissioner has not provided a bundle, on the basis that he wished to rely only on the Decision Notice and appellant’s response. However, the party that is tasked with providing a bundle is tasked with preparing a bundle that contains the documents relied on by both parties. The appellant wished to rely on documents and those should have been placed in a bundle. Further, the Commissioner should provide any relevant documents to the Tribunal, whether or not he wishes to rely on them.  In the absence of a bundle the Tribunal is faced with an unindexed collection of documents, including Word documents containing cut and pasted correspondence; presumably, but not definitively, provided by the appellant. This is unsatisfactory”.

Overall Outcome: David Willingham’s appeal was successful, with the tribunal determining that the PHSO did indeed hold the requested information. However, no further action was ordered due to the appellant’s prior possession of the information.

The decision was signed by Judge Sophie Buckley on July 17th, 2023. It can be viewed in full here.

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Page last updated: Tuesday 5th September, 2023 at 19h35

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