Why was I given permission to appeal on 2 grounds the First-tier Tribunal costs order of £500 in favour of Merseyside Fire and Rescue Authority and why did I receive an apology from a Judge?
Earlier this year I was given permission to appeal by an Upper Tribunal Judge on two grounds a First-tier Tribunal costs order. At the point of the decision I was the Applicant in case GIA/619/2019, but now permission to appeal has been granted I am described as the Appellant. The other parties are the Information Commissioner (First Respondent) and Merseyside Fire and Rescue Authority (Second Respondent).
A final decision on the outcome of this appeal in the Upper Tribunal (Administrative Appeals Chamber) has yet to be decided.
This is a report on the permission to appeal decision by Upper Tribunal Judge Wikeley (which is dated 26th March 2019). The parts I am leaving out in the quote below of the permission to appeal decision are paragraphs 1-4 which deal with an application for an oral hearing which was refused, paragraphs 5-8 which deal with a short history of proceedings and the costs ruling (which have already been reported extensively previously on this blog).
I’m also leaving out paragraphs 20 and 22-25 deal with alleged grounds of appeal on which permission to appeal was not granted.
However the rest (copied below) refers to a number of interesting cases on costs (where possible I’ve linked to pages where you can either read the full decision in that case or contains a link to it) or discuss principles and therefore I thought may be of wider interest. I’ve corrected two typographical error which are one in paragraph 10 and corrected  AACR 35 to  AACR 35 and a second in paragraph 21 where a statutory instrument number should read 2002 not 20092.
9. At some point the Applicant lodged an undated application for permission to appeal (PTA) to the Upper Tribunal against the costs order made against him and dated 31 October 2016. The ruling of Judge McKenna, Chamber President of the General Regulatory Chamber (GRC), dated 28 January 2019, refers to that application having been made on 19 December 2016 and there is no reason to doubt that. Judge McKenna apologised for the fact that this PTA application had not been determined in good time. It appears there must have been some breakdown in the FTT’s administrative processes whereby cases are subject to a B/F (brought forward) system. It is unclear whether the Applicant made any enquiries about the progress of his application dated 19 December 2016, but ultimately that matters not. Judge McKenna refused the PTA application.
The principles governing awards of costs in the FTT (GRC)
10. The general principle is that the FTT(GRC) is a costs-free zone. So, an award of costs is exceptional and should be reserved for the clearest of cases (see Cancino (Costs – First-tier Tribunal) – new powers  UKFTT 59 (IAC) at paragraph 27 and Kirkham v IC (Recusal and Costs)  UKUT 65 (AAC)). The leading authority on costs in tribunals (at least most of those tribunals within the purview of the Upper Tribunal (Administrative Appeals Chamber) is the decision of the Upper Tribunal Judge Rowley in MG v Cambridgeshire County Council (SEN)  UKUT 172 (AAC);  AACR 35, where she held as follows:
27. Furthermore, tribunals should apply considerable restraint when considering an application under rule 10, and should make an order only in the most obvious cases. In order words, an order for costs will be very much the exception rather than the rule…”
11. Judge Rowley went on to say:
(2) if it did, should the tribunal make an order for costs?;
(3) if so, what is the quantum of those costs?”
12. She also ruled that a summary assessment is normally appropriate (see paragraph 31). As Judge Rowley concluded:
13. Although that case arose out of the special educational needs jurisdiction, the similarity in the respective costs rules in the two jurisdictions is such that I regard the principles Judge Rowley lai down as applying equally in information rights cases.
The renewed application for permission to appeal
14. An appeal to the Upper Tribunal lie on “any point of law arising from a decision” (section 11(1) of the Tribunals, Courts and Enforcement Act 2007). The Upper Tribunal will give permission to appeal only if there is a realistic prospect of an appeal succeeding, unless there is exceptionally some other good reason to do so: Lord Woolf MR in Smith v Cosworth Casting Processes Ltd  1 WLR 1538.
15. Examples of where a FTT may go wrong in law include:
- The tribunal did not apply the correct law or wrongly interpreted the law;
- The tribunal made a procedural error;
- The tribunal had no evidence, or not enough evidence, to support its decision;
- The tribunal did not give adequate reasons in the written Statement of Reasons.
16. However, an error of law alone is not enough. Permission will only be given if any error of law was material, in the sense of being an error that may have materially affected the outcome of the case (see R(Iran) v Secretary of State for the Home Department  EWCA Civ 982). Furthermore, the grant of permission is always a matter of discretion.
17. The proposed grounds of appeal are set out in the detailed application annexed to the UT13 form. There are six proposed grounds.
Ground 1: decision made by wrong people
17. The Applicant’s first point, is in my assessment, arguably one of his best points. Put simply, he says the costs decision was taken by the wrong people. He points to the Senior President’s Practice Statement for the FTT (GRC). Although this provides that substantive information rights cases are to be considered by a three-person tribunal, “other decisions” are to be taken by one judge (see paragraph 16 of the Practice Statement). It is clear that in the present case the decision was taken by the panel as a whole. On that basis the FTT was seemingly not properly constituted.
18. But was this composition error of law material? There is an argument it was not. If the two wing members had opted for the earlier date of 4 August as the start of the unreasonable conduct, and the judge had opted for 22 August, then the error would clearly have been material. In that scenario the judge would have been outvoted by the two wing members who should not have been sitting, and the result would have disadvantaged the Applicant as the liability would have arisen from an earlier date. It is unclear from the FTT’s decision which date the judge opted for. However, on the face of it there was no prejudice to the Applicant as the majority of the FTT opted for the later start date in any event.
19. There is, however, another way of looking at it. We do not know what took place in the discussions between the judge and the two expert members. It may be – although this may be unlikely? – that the judge was heavily influenced in his assessment by the views expressed by the two wing members. So, on that basis (“the contamination argument”), there was arguably an error of law here. With some misgivings I grant permission to appeal on this first ground.
Ground 3: disregard of DLA (mobility) income
21. The Applicant was in receipt of the lower rate mobility component of DLA at the relevant time. He relies on section 73(14) of SSCBA 1992 as authority for the proposition that this benefit must be disregarded when applying any legislation “under which regard is to be had to a person’s means”. The Applicant does not seem to have made this point to the FTT, but of course he may have been unaware of section 73(14), as indeed may have been the FTT itself. A year’s worth of the lower rate mobility component (LRMC) of DLA in 2015/16 amounted to 52 x £21.80 = £1,133.60. The Applicant also refers to his receipt of the disability element in his tax credits award. It is true that DLA acts as a passport to that disability element (see regulation 9(4)(a) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 (SI 2002/2005), but regulation 9 does not appear to include any provision parallel to section 73(14). However, the Applicant has made another point about his income which was put to the FTT, namely that his award of tax credits was a joint award. As already noted, his summary for the 2015/16 tax year shows this joint award as being £7,402.91.
22. The FTT noted the Applicant’s income as being about being about £16,500 (and recognised the joint award of tax credits) – see paragraph 11 of the reasons for its costs ruling. The FTT also describe his means as “plainly very modest”. The FTT was certainly entitled to make a summary assessment, but should it have been clearer as to the level of the Applicant’s means? On one view his assessable income was not £16,500 but approximately £11,688, being £16,253.11 less £4,835.05 (being the sum of the disregarded DLA (LRMC) £1,133.60 + half of the tax credits award, namely £3,701.45). If this is right, then the Applicant’s properly assessed income was about 30% less than the global figure referred to by the FTT in its reasons. This is sufficient to justify giving permission to appeal on this third ground.
26. Overall, therefore, I agree that the first and third grounds in this application for permission to appeal are arguable. I give limited permission to appeal accordingly.
27. The Applicant has the right to apply for a reconsideration of the decision to refuse permission to appeal (on grounds, 2, 4, 5 and 6) at an oral hearing before the Upper Tribunal. Any such application must be made in writing and within 14 days of the date that this determination is sent out by the Upper Tribunal office (i.e. the date on the enclosed covering letter, not the date below) – see Tribunal Procedure (Upper Tribunal) Rules 2008, rule 22(3)(a)(ii), (4)(b) and (5).
28. I make the following case management directions.
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