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Application for Permission to Upper Tribunal

Office stamp (date received)

Appeal and Notice of Appeal Administrative Appeals Chamber


from an Information Rights decision of For any other kind of case
the First-tier Tribunal decided by the General
(General Regulatory Chamber) Regulatory Chamber of the
First-tier Tribunal use
Form UT11

You must apply to the First-tier Tribunal for permission to appeal before you fill in this form.
Use this form either (1) to apply to the Upper Tribunal for permission to appeal if the First-tier Tribunal refused you
permission to appeal or your application was not admitted because you were late
or (2) to appeal to the Upper Tribunal if the First-tier Tribunal has granted you permission to appeal.

Please use black ink and complete the form in CAPITALS or in typewriting. Use another sheet of paper if there is not
enough space for you to say everything. Please put your name at the top of any additional sheets.

A About the Appellant

Title
✔ Mr Mrs Miss Ms Other

Surname, or name [Appellant Surname]


of company, firm or
organisation

Other names [Appellant Other name]

Address [Appellant Address]

Postcode

Telephone number [Appellant Telephone]

Email address [Appellant email]

Do you have a ✔ No
Yes
solicitor or other
representative?

If yes, please give your representative’s details below:

Name of representative

Status (solicitor, agent,


friend etc.)

UT13 Application for Permission to Appeal and Notice of Appeal - General Regulatory Chamber, Information Rights (09.15) © Crown copyright 2015

1
Organisation (if any)

Address

Postcode

Telephone number

Email address

Reference number (if any)

B About the respondent(s)

Please give details of the respondent(s) below (these will be the person or persons and/or organisations who were the
other party (or parties) in the First-tier Tribunal).

1st respondent

Name of first or only


Information Commissioner
respondent

Address Wycliffe House


Water Lane
Wilmslow, Cheshire

Postcode S K 9 5 A F

Telephone number 0303 123 1113

Email address casework@ico.org.uk

2nd respondent (if any)

Name of second
respondent

Address

Postcode

Telephone number

Email address

2
C About the First-tier Tribunal which decided your case

Where did the Tribunal hear your case? At an oral hearing


(please tick one) ✔ At a paper hearing
There was no hearing

(Situations where there may not have been a hearing, include if you are appealing against a case management
decision, or if your case was struck out.)

If there was a hearing, what was the date of / /


the hearing?

What was the date of the Tribunal's decision? 0 9 / 0 4 / 2 0 1 8

What was the Tribunal's reference number? EA/2017/0165

Did the First-tier Tribunal suspend the effect ✔ No


Yes
of its decision?

Do you now wish to apply for the effect ✔ No


Yes
of the First-tier Tribunal decision to be
suspended?

If you wish to apply to the Upper Tribunal for suspension of the effect of the First-tier Tribunal decision,
please give your reasons why:

D Reasons for any delay


Note: You must apply to the First-tier Tribunal for permission to appeal before you fill in this form.

Did the First-tier Tribunal refuse to admit ✔ No


Yes
your application for permission to appeal
because you were late?

Has more than one month passed since the ✔ No


Yes
First-tier Tribunal sent you notice of the grant
or refusal of permission to appeal or notice
that your application has not been admitted?

If the answer to either of the above questions (or both) is 'Yes', please apply for an extension of time by giving your
reasons for the delay here:

3
E Reasons for appealing
Note: You can only appeal if the First-tier Tribunal decision was wrong on one or more points of law and you must say
why the First-tier Tribunal was wrong in law.

If the First-tier Tribunal granted you permission to appeal on limited grounds and you are now appealing, please
state whether you also wish to apply for permission on additional grounds and complete Part G as appropriate.

Alleged errors of law

– Misapplying the legal test in the judgment of the Upper Tribunal, IC v Dransfield [2012] UKUT
440 (AAC), to arrive at a decision of vexatiousness

– Lack of objectivity

– Taking into account irrelevant factors

– Failure to take account of relevant factors

Note: Detailed grounds of appeal are attached to this form (dated 8 May 2018).

The Tribunal's reasons for refusing permission do not, and cannot, rebut the grounds put forward and therefore it is
maintained that they are arguable.

Misapplication of Dransfield

Here the Tribunal does little more than grab the chance to take issue with the 'prolixity of the Grounds'. These were
necessarily drawn-out in order to put straight the record due to a number of slurs in the decision. For example it
was insinuated that the cost to the public purse, which was by far underestimated, was the Appellant's doing rather
than the various public bodies, who between them had through a combination of official error, fraud, perjury,
intransigence, complicity and denial etc., caused all the related matters to be pursued.

The Appellant was therefore invited by this to provide evidence that it was unfair and unjustified for the Tribunal to
point the finger in his direction for imposing this financial burden. Moreover the sly inference that more weight could
be attributed to a claim of vexatiousness by virtue of the Appellant losing every Appeal, when this was grossly
unjustified, demanded the provision of a wide range of evidence in support of the contention that the Tribunal
lacked objectivity and took account of irrelevant factors. It would be difficult for the Tribunal to deny that the stream
of evidence was not invited. Neither could it credibly maintain that all the Appellant's complaints were in fact worthy
of rejection upon considering the facts objectively.

It is also noted that there was no rebuttal of the Appellant's claim that the case papers in respect of one of the
appeals which had ironically been rejected, were made available to the High Court as a source of reference for
use, along with related FOI request outcomes etc., for assisting the production of the judgment in the Tottenham
case. This, by its very nature was a benefit to the Ministry of Justice and irrespective of the Appellant losing, it
supports his assertion (para 14) that those who have as a last resort (unaware of the futility) taken to attempting to
obtain information have been taken advantage of by the government and used as an unofficial free research
service.

It was not refuted that the allegations of criminal wrongdoing were made with reasonable grounds (if not proven
conclusively) nor the assertion that various decisions were entirely worthless in which the Tribunal (without reason)
implies it has complete faith. When considering that all these factors were used by the Tribunal to strengthen the
claim of vexatiousness it is not seen how the judge has credibly concluded that there are no arguable points of law.

The main point the Tribunal makes is that the value of the information requested was considered insignificant
weighed against the burden imposed on the various public bodies over a protracted period of time. It was argued in
support of this that if the information in question had any value in principle, the police had the power to obtain it and
so the Appellant had no need to request it (the Appellant failed to explain why this assessment was erroneous in
principle).

If you want to say more, please use another sheet of paper

4
Firstly, it is argued that the test in Dransfield cannot not be properly applied in the way suggested, which is to
estimate the potential value of the requested information and assess whether it outweighs the burden imposed, not
only on the public body in question but on a range of public bodies over a protracted period of time. What is of
primary importance is that the request itself is under the spotlight, not any previous requests or the person making
it, so if the requestor’s history is to be exploited in characterising the request vexatious then there has to be a
compelling argument which links the requests for the purposes of overruling the principle that it should be
considered on its own merits. The Commissioner and Tribunal have relied on the Appellant’s ongoing disputes that
relate to his local authority’s administration of Council Tax going back several years to claim a connecting theme
that ties together the requests. In that case the justification for having no longer a duty to consider the request on
its own merits would be that it was the same or substantially similar to those cited as historically imposing a burden.

For a request to be properly considered substantially similar it would need to bear a close resemblance to the ones
being compared with. It is not good enough if all that can be found connecting them is that they can be tenuously
linked with the administration of local tax. A substantially similar request would be one which asked for the same
information but in a rearranged format, for example, not one that could simply be linked by a common theme. If one
request asked for Council Tax collection data and another was for details of the outcome of an investigation into a
fraudulently obtained Council Tax court order, then the two could not, by any stretch, be considered substantially
similar, despite it arguably being possible to claim that Council Tax administration was common to both. But any
connection with those matters to the present request is more distant still. More importantly, it is an abuse of the
Dransfield test to routinely apply it for example when it may be seen as a way of getting out of a tight corner. The
test is to help determine in those cases where it is not obvious when requests are vexatious. If the request
considered on its own merits is obviously not vexatious then that should be the end of the matter and it would be
misusing the test to then apply it.

Secondly, the situation with the police was briefly explained (paras 66 & 67) but for more clarity, the force routinely
dismisses allegations and engages the complainant, as in this matter, in the statutory appeals process which can
take the issues away from scrutiny for years and ultimately out of the system. Presumably all police forces have
budgets set aside to fund Professional Standards Departments that function as a mechanism to take care of
matters which require covering up.

The force has since confirmed in its findings what was said in the appeal grounds i.e., that it could not be relied on
to pursue all reasonable lines of enquiry, though, this would be more accurately expressed if it was said that the
force pursued all irrelevant lines of enquiry in a systematic effort to obfuscate the investigation process.

The officer who was eventually referred the matter to deal with on 17 September 2017 after being instructed to do
so by the Independent Office for Police Conduct (IOPC) communicated by email regarding the investigation on 3
occasions up until the outcome of 25 May 2018. Within those emails it was manifestly shown that the officer had no
intention of seriously pursuing the matter. He wrote 7 weeks after he had received signed copies of the 10 letters
purportedly sent by the Justices’ clerk to confirm that he had ‘now identified the person within the Justice clerk
system’ who he needed to speak with, and asked for ‘the content of the letters in question’ to be identified. Other
information which he had already been provided weeks earlier was also asked for.

Another anomaly casting doubt as to the seriousness with which the investigation was being pursued was an email
apparently sent by the Judicial Appointment and Conduct Ombudsman’s Office (JACO). The authenticity of the
email was in question (hence ‘apparently sent’) as the encoding revealed within the file’s properties was
inconsistent with that of other JACO employees’ emails and appeared not to have been sent from an official
government email server. However, it was stated in the correspondence that the Ombudsman had been
approached by Humberside Police in connection with a complaint of corruption that had been made regarding
North East Lincolnshire Council, including that the complainant had not received letters that the Council had sent (a
possible red herring).

Putting to one side the email’s questionable origins, the anomaly in respect of the focus being on the Council rather
than the Ministry of Justice was consistent with the outcome of 25 May 2018, because this report also supports,
either by incompetence or design, that there was a misunderstanding about what was required to be investigated.
For a start, the report irrelevantly referred to enquiries that were made with a number of Officers from North East
Lincolnshire Council (NELC) and Andrew Hobley from the Local Government Ombudsman. The officer had not
been led to believe that NELC was involved in the dishonesty (at least not in this matter). He had in any event the
opportunity to re-evaluate what lines of enquiry were pertinent when the appellant asked him to clarify why it was
relevant that he enquired about whether a complaint had been made to NELC (and if so any contact details). He
was asked for clarification but this was never forthcoming.

4A
The report is littered with what are effectively red herrings to distract anyone from what is really going on, especially
anyone unfamiliar with the case who had no idea how compelling the evidence was that was omitted from mention
in the report. The objective clearly with this ploy has been to dupe those in the dark into believing that thorough
enquiries had been carried out. The reality however, is that to anyone informed it would be so overwhelmingly
obvious that the content was not worth the paper it was written on.

For example, it is not difficult to see how the following might have succeeded in prejudicing the opinion of any
uninformed person considering the merits of the investigation to the extent that they were satisfied that all
reasonable lines of enquiry had been pursued:

“The [Judicial] Ombudsman did not consider any issues regarding the Local Authority's handling of its
correspondence to you nor did they make any enquires, the Ombudsman have no knowledge of any other
letters being produced to them.”

“I also made contact with the Local Government Ombudsman, they were not in a position to provide any
details of complaints made to them as these are strictly confidential and they are statutorily barred from
sharing this information.”

To anyone informed it is glaringly obvious that Humberside police has been complicit in a cover-up of serious
criminal wrongdoing carried out by the Ministry of Justice. It is also obvious that pretending to misunderstand the
allegations thereby inventing matters to investigate is a well practiced tactical ploy to obfuscate the process.

It is telling that the evidence which proved the allegations beyond reasonable doubt was not even mentioned in the
25 May 2018 outcome, so is the fact that the appellant, who was under no statutory duty to keep the complaint
details confidential, could have provided what the LGO refused but he was not asked to. However, it is puzzling
what the officer thought could be achieved anyway by pursuing the Council and LGO. Even the Judicial
Ombudsman who has been most closely involved was hardly going to reveal anything to the police voluntarily
which would materially assist an investigation. The Judicial Ombudsman had already made it clear it was only his
concern that he had obtained the letters; it was immaterial to him whether the letters had been created after the
event to cover their tracks once enquiries were made.

It also does not look good for the police that the appellant had made it clear early on that he considered it unlikely
that the dishonesty would not have been known about or even instigated by officials more senior than the Justices'
Clerk. A response on 6 October 2017 contained the following to the police asking the appellant if there were any
further comments he would like to add in regards to his complaint:

“Regarding further comments, I think it is appropriate given that you have referred to the Judicial
Ombudsman etc., that it is my opinion that the Ombudsman HMCTS/MoJ are more likely than not
complicit. I would think it highly unlikely that the Justices' Clerk would make the decision herself to attempt
to pull this off, and suggest either she has been pressured to do so by someone more senior or has known
she could rely on being backed up by her employer. This has already been implied in an email (attached)
to HMCTS' Head of Customer Investigations, Richard Redgrave, responding to his 6 April 2017 outcome of
the investigation”

Apart from the deliberate obfuscation tactics employed it is also noted that the report’s findings amount to zero. The
declaration below tells the Appellant nothing he does not already know or reveals to the officer anything that was
not available to him in the various documents that the police had already been provided:

“I have spoken with Alison Watts (HMCTS Humber and South Yorkshire), I am aware she has responded
to some of your concerns in past correspondence. She has indicated that any letters issued would have
been sent in the normal course of events and posted with any other mail, copies of letters would be kept
which would be dated. She has no knowledge of why you did not receive these letters.

I have also noted a response sent to you by the Cluster Manager for HMCTS (Paul Hopgood), in this he
sets out the response regarding the number of letters sent by HMCTS Humber and South Yorkshire that
were not received by you nor returned to HMCTS by the Royal Mail. This response states that they could
not identify why you did not receive these letters nor if they were sent by recorded or registered delivery as
set out under the Magistrates Courts Rules 1981, they apologised for this.

4B
I have also spoken with the Judicial Ombudsman's office (JACO), they have reviewed two complaints to
identify whether there was any maladministration in the Judicial conduct Investigation process, one of the
issues was that you did not receive three letters from the advisory committee, these letters were
subsequently obtained and sent to you in February 2016......”

Clearly all the force has done here is exploit the findings of the Judicial Ombudsman and HMCTS who were only
ever, at the very most, going to concede that there had been “a very poor level of service” which had incidentally
taken a total 408 days from first being aware of the fraud on 23 February 2016 until 6 April 2017 when the
admission was eventually prized from the multi stage Complaints handling mechanism.

The force is clearly implying that because these two bodies are apparently satisfied there has been no criminal
wrongdoing it has been handed a legitimate ‘get out’ from carrying out its duty to investigate. But the force already
tried to pull this one and failed in its attempt to circumvent the correct process in a complaint made under the police
reform Act. The IOPC found that this along with other grounds were unsatisfactory so they upheld the appellant’s
complaint and directed the force to record it. The IOPC letter of 28 July 2017 upholding the appeal contained the
following:

“I do not consider that your complaint dated 25 February 2017 is an abuse of the police complaints
procedures. I note the force have referred to the Judicial Ombudsman and HMCTS being the correct forum
for this matter. However, I believe that the crux of your complaint is that the police have decided not to
criminally investigate the Magistrate's Court for conduct which you consider to be criminal.”

The only relevance of the Judicial Ombudsman and HMCTS’ involvement in the matter is that they elicited
responses from the Justices' Clerk to letters which had, as far as the appellant was concerned, not been responded
to over a several year period which gave him every reason to suspect they had been produced afterwards. The
protracted period over which the letters were purportedly sent and the fact that there were as many as 10 of them
was always going to make the task of covering their tracks a difficult one and one which was evidently not
managed successfully despite various officials implying differently. It was these aggravating circumstances, along
with other contributing factors which demonstrated, beyond reasonable doubt that dishonesty was involved, and
would unquestionably have satisfied the test laid out in R v Ghosh [1982] QB 1053 (or whichever case applies
since the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67 overturned the test).

The report’s findings yell out at you that the force’s handling of the complaint was no more than a token gesture
with obvious signs that generic content had been used from templates which had not even been updated to reflect
the Supreme Court’s overruling of the Ghosh test (see its barefaced and utterly unsupported denial):

“In reviewing any allegation the Police have to satisfy themselves that a Crime has occurred. They then
need to demonstrate, beyond reasonable doubt that a dishonest act has occurred, the definition of
dishonesty is laid out in case law of R V GHOSH.

Having conducted these proportionate enquires, I cannot demonstrate that the points to prove for the
offences laid out in your complaint are satisfied, therefore the matters will not be investigated.”

Presumably the above is officially stating that the force is not only unable to demonstrate beyond reasonable doubt
that a dishonest act has occurred but also that they are satisfied themselves that a crime has not occurred. If so,
the force must itself be guilty of dishonesty, because the accused's conduct was incontrovertibly dishonest by the
standards of ordinary, reasonable and honest people. Incidentally, it is not now a consideration that a jury would
need satisfying that the accused must have realised that what he was doing was, by those standards, dishonest.
The ‘proportionate enquires’ referred to, as previously highlighted, were no more than a token gesture of
accountability which revealed nothing new and were obviously not meant to. This of course was gross misconduct
as the line of enquiry followed by the force pursued the route most guaranteed to lead nowhere and a blind eye
turned to the most relevance factors which would satisfy the force that it was dealing with crime.

Records confirm that a substantial amount of material had been collated and made available to the force in an
email of 19 March 2017 in which Christine Wilson (head of specialist crime) was copied. This evidence fully backed
up the allegations recorded in police log of 7 January 2017 and was of sufficient strength to satisfy the force that
the matter was a criminal one and imperative that it was fully investigated. The only logical explanation for the
obstruction that involved channelling the matter through the police statutory complaints process was that the force
was complicit in a cover up (the establishment protecting its own). There is every reason to suspect that the

4C
evidence was given no consideration whatsoever. Instead, resources were disproportionately diverted to initially
rejecting a complaint on the basis that it was not a police matter, which then changed to an abuse of the complaints
process, because the allegations were a repetition of previously complained of matters (entirely unconnected) and
for which it presented a case to convince the police regulator.

All of this just reinforces the Appellants assertion that the failure of the police to carry out its duty can be relied on.
But according to what is said in para 17 of the Tribunal's reasons for refusing permission, this does not assist the
Appellant because ‘his obtaining the information via FOIA would not help’ if as he suggests, the force is likely to be
uninterested. This is contended because the fact that the force is uninterested and has proved now to be complicit
in a cover-up is more reason than ever for the Appellant to use FOIA for potentially reinforcing his allegations.

Lack of objectivity on the part of the Tribunal (procedural irregularity)

The Tribunal in para 10 of the refusal clarifies why the judge referred to ‘the very large number of FOIA requests
and complaints’ made by the Appellant to a number of public authorities in support of its claim that the request was
vexatious. The explanation was not as the Appellant understood which was to support the claim of vexatiousness
by highlighting the fact that ‘he has lost on each occasion’. Rather it ‘was to highlight examples of his obsessive
and unreasonable behaviour, repeated in the present case’. The decision goes on to say that ‘the fact that he had
lost the previous cases was not by itself a significant factor in the Tribunal’s finding’. This, however, does not reflect
the amount of focus that the decision put on the Appellant losing (without fail) on each occasion he was invited by
the Commissioner to challenge her decisions.

If the Tribunal did not seek to support its decision of vexatiousness by highlighting the Appellant’s failed attempts to
persuade adjudicators that decisions made against him were wrong then the following statements characterising
those attempts as failures tend to disagree:

“He has taken several of the requests not only to the Commissioner but to the Tribunal. He has lost on
each occasion. He has another appeal pending before the Tribunal and tried to bring a further appeal.”
(para 46)

12 13
“.....He has made a number of complaints to the Commissioner; some he has taken to the Tribunal. All
14
have been rejected. He has another appeal pending before the Tribunal and recently tried unsuccessfully
to bring a yet further appeal. It is not necessary to set out the detail of those cases but the following is
worthy of note: (para 38)

“He said that he was aware that [the Appellant] had complained unsuccessfully to the Commissioner
against a finding by the MoJ that a request he had made was vexatious.” (para 25)

It is maintained that the numerous references to the Appellant losing etc., along with the personal and slanderous
nature of the decision generally were clear signs that the Tribunal lacked objectivity and that the Commissioner and
Tribunal were on the same side.

However, the claim that the Appellant’s behaviour has been unreasonable and obsessive to support a claim of
vexatiousness has no justification whatsoever. The fact that it has been a factor considering the circumstances is
particularly concerning and suggests that all the officials before whom these matters have come are indifferent to
the dishonesty, criminal wrongdoing, corruption etc., uncovered by the Appellant. It is true that in theory he could
have made a decision at a point where it became obvious to accept that the authorities, discovered to be infested
with corruption are always going to be protected by other public authorities (Police, police regulator, Ombudsmen
of all types etc.) and it would be futile to think any positive changes could be brought about. The majority of victims
would reach a stage where they could no longer justify the hardship imposed on their lives, which, although
understandable it is nonetheless defeatism, however, there is no justification to label those obsessive who see it
their duty in these circumstances to pursue criminal wrongdoing until it can be no longer ignored, when it is for the
good of the public.

The system is designed/set-up so that the only possible chance a person affected by wrongdoing has of reaching a
successful outcome is if he is persistent. That is not the fault of the person seeking accountability it is the fault of
the way the system is designed which is to defend the indefensible and subsequently invite the victim to appeal
their outrageous denials.

4D
Even if the circumstances did warrant applying the Dransfield test (which they did not) it has been determined by
the Tribunal that a great deal of persistence is justified if it is uncover serious wrongdoing; for example in
Thackeray vs ICO (EA/2011/0082) and Marsh vs ICO (EA/2012/0064).

In para 11 of the decision the Tribunal grasps ever more desperately at straws and confirms that an approach it
had adopted (‘to highlight examples’ para 10) was legitimate but when the Appellant attempted the same to
highlight an example of his time and effort put into a previous appeal, contrary to imposing a burden, in fact
considerably benefited the public authority. He was not as the decision implied under any illusion that he could ‘use
this case as a vehicle for his more general campaign against the costs orders sought by council tax authorities’.

Taking into account irrelevant factors

The Appellant maintains that any claims of criminal wrongdoing are well founded and he has evidence to support
those allegations. Much of it in any case, has been submitted to the Tribunal in various appeals so it is not a
credible claim that the Tribunal can make that they are unfounded or unsubstantiated. The decision states that ‘the
making of unfounded or unsubstantiated allegations of corruption is a classic indicium of vexatiousness’, but that
cannot apply in this case because the Tribunal has not even identified one allegation of corruption let alone provide
any reason why it would be unsubstantiated.

Other than this the Tribunal contests the Appellant’s argument that it was irrelevant that the Tribunal should have
focussed on the contested sum which led to imposing a huge burden on a number of public authorities through
requests and complaints was only £60. The Tribunal says that ‘the amount originally at stake played no part in the
Tribunal’s finding of vexatiousness: the Tribunal simply observed that a relatively modest sum had spawned legal
and quasi-legal proceedings costing thousands of pounds’. It is fair to comment that it would be insulting anyone's
intelligence to tell them that there was any other reason behind why this point was raised than for slyly laying the
blame at the hands of the Appellant for wasting significant public resources.

It is therefore maintained that it is arguable on a point of law that the Tribunal took into account irrelevant factors.

Failure to take account of relevant factors

The Tribunal has singled out one possible example where it considers the Appellant had identified the Tribunal
neglecting to consider a relevant factor. This concerns an issue about whether or not the police would take an
interest in looking into the serious allegations and if not it would not assist the Appellant and if it did it was within its
powers to obtain the information anyway. As previously stated (the force has confirmed it is not interested) ‘this is
contended because the fact that the force is uninterested and has proved now to be complicit in a cover-up is more
reason than ever for the Appellant to use FOIA for potentially reinforcing his allegations’.

Though the Appellant did not specify which relevant factors the Tribunal had failed to take into account it was
clearly all the evidence submitted which would have been capable of satisfying an ordinary, reasonable and honest
person that the matter in question was criminal (para 21 of the Appellants Appeal Grounds for example).

In that case the Tribunal was not justified in characterising the request as vexatious in respect of ‘unfounded or
unsubstantiated allegations of corruption’.

4E
F Request for an oral hearing of an Application

Has the First-tier Yes If 'Yes', your case is an appeal. Go straight to Part G on the next page
Tribunal given you
permission to appeal?
✔ No If 'No', you are applying to the Upper Tribunal for permission to appeal.
Please continue to complete this Part

Do you or your Yes Please give your reasons why in the box below
representative wish to
have an oral hearing
before the Upper ✔ No
Tribunal at this stage?

Would you like the Yes Please give your reasons why in the box below
hearing to be in
private?
✔ No

           
 

5
Application for permission to Appeal or Appeal to the Upper Tribunal

I apply for permission to appeal against the decision of the First-tierTribunal


and/or

.~:_~Q;ieft.I1m~
...
..____ . c· f",

(delete as applicable)

~Pis~'PV'~~~~~~j~,,p-
the Upper Tribunal.*
(*delete if you have no representative or you are a solicitor filling in this form on behalf of a client)

Signed /'1"

ll
, !l;; t.r / ,I/H" If
Applicant/Appellant or solicitor

Date

After you have filled in the form please send it to the appropriate office below:

If the First-tierTribunal hearing was in England:


The Upper Tribunal Office (Administrative Appeals Chamber),
5th floor, 7 Rolls Building, Fetter Lane, London, EC4A 1NL

If the First-tierTribunal hearing was in Wales, or you live in Wales you may send the form to the London address
(above) or to:
The Upper Tribunal (Administrative Appeals Chamber),
Cardiff Civil Justice Centre, 2 Park Street, Cardiff, Wales, CF10 1ET

If the First-tierTribunal hearing was in Scotland:


The Upper Tribunal (Administrative Appeals Chamber),
George House, 126 George Street, Edinburgh, EH2 4HH

Ifthe First-tierTribunal hearing was in Northern Ireland:


Upper Tribunal (Administrative Appeals Chamber),
Tribunal Hearing Centre, 2nd Floor, Royal Courts of Justice, Chichester Street, Belfast, BT1 3JF

You should enclose a copy of the following documents with this form (please tick the appropriate boxes)
but do not delay sending in your form if you do not have all of them

1. The decision notice issued by the First-tierTribunal, and [{]

2. if separate, the written reasons for the Tribunal's decision [{]

3. The letter from the First-tier Tribunal telling you that you have been granted or
refused permission to appeal or that your application has not been admitted [{]

The Office will let you know when they have received this form. Contact the office if you are not told within
two weeks that the form has been received.

6
IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2017/0165
GENERAL REGULATORY CHAMBER
(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER


Respondent

APPLICATION FOR PERMISSION TO APPEAL TO UPPER TRIBUNAL


(GROUNDS OF APPEAL)

Introduction

1. These grounds of appeal are in accordance with paragraph (5)(b) and (5)(c) of rule 42 of
the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009.

Alleged errors of law

 Misapplying the legal test in the judgment of the Upper Tribunal, IC v Dransfield [2012]
UKUT 440 (AAC), to arrive at a decision of vexatiousness

 Lack of objectivity

 Taking into account irrelevant factors

 failure to take account of relevant factors


2. The Tribunal has relied on ‘the very large number of FOIA requests and complaints’ the
Appellant has made to a number of public authorities in support of its claim that the
request was vexatious. It is also clearly evident that its view is reinforced by the fact that
he has been unsuccessful (if success is measured in terms of not losing) as the Tribunal
states ‘he has lost on each occasion’ (para 46).

3. The Tribunal has unfairly cited unsuccessful appeals to reinforce the assertion that the
requests are vexatious by virtue of the fact that the Appellant did not persuade the
Tribunal that he was entitled to the requested information under the FOIA. The claim of
unfairness can be supported specifically in these proceedings because of the Tribunal’s
argument put forward in favour of the Commissioner that the request is vexatious.

4. The decision refers in paragraph 38 to a number of complaints and appeals which have
all been rejected and highlights a further appeal which the Appellant recently tried
unsuccessfully to bring. The objectivity of the Tribunal is brought into question by the
fact that it follows this by stating ‘it is not necessary to set out the detail of those cases
but the following is worthy of note’ after which is quoted exclusively aspects of those
cases which were in support of the public authorities’ vexatious claims.

5. If the Tribunal wishes to exploit a pattern of previous rejected cases to justify an


argument that any of a particular Appellant’s future concerns would be unworthy of
consideration then it should be made certain that those decisions had been arrived at
fairly and further scrutinised to ensure that they subsequently had not been found to be
wrong.

Rejected cases (two) claimed by the Tribunal subsequently found to be wrong

6. Data relating to two categories of bailiff fees prescribed under the relevant legislation
was requested separately, both asking for the data over a specified number of years. The
first requested the total number of times a redemption fee was charged for returning
levied goods by reason of payment; the second, for attending with a vehicle on the same
day a separately prescribed levy fee had been imposed (where no goods are removed).
The relevant Decision Notices are referenced FS50443807 and FS50458338
respectively (Tribunal EA/2012/0254 and EA/2013/0013).
7. In the case of the first request the Commissioner upheld the local authority’s (NELC)
refusal under s.12 (Cost of compliance) on the basis that it would have cost an estimated
£39,775 to comply. The Tribunal subsequently struck out the appeal in a decision of 28
February 2013 on the basis that the Commissioner was correct and the appeal could not
succeed.

8. The Commissioner also upheld the council’s refusal under s.12 in respect of the second
request on the basis that a similar cost estimate was presented to the Commissioner as it
was for the previous request. However, the events which followed differed in the second
case. The Commissioner’s Decision Notice was similarly appealed but during the
proceedings it was discovered that similar data had been obtained from other local
authorities but without any cost issues. This obviously brought into question the £40k
that was estimated and so pressure was put on the local authority for answers.

9. After several more months in dispute (around 18 overall) the local authority was finally
able to disclose all the requested information, but would not explain (neither would the
Commissioner) why the estimated cost of £40k was no longer a contributing factor for
withholding the data. The Tribunal asked if it was required that the case continued in
light of the information being disclosed and if so what result was sought.

10. The case was withdrawn after being warned that costs may be awarded if the Tribunal
was asked to pursue ‘an appeal unnecessarily, or on grounds that the Tribunal cannot
entertain’. However, the Tribunal was subsequently asked to reinstate it so that a
consent order could be made for the record to the effect that the information which was
refused was no longer subject to the s.12 exemption. The Tribunal refused to reinstate
the appeal in a Decision Notice of 14 August 2013 on the basis that nothing could be
gained by resurrecting the appeal and then ending it again by consent (the questions had
become academic).

11. In the terminology of the current decision, the above examples relate to proceedings
which the Appellant had lost, but only on account of the adjudicator’s misjudgement.
This highlights the injustice that can be caused when formal decisions, arrived at
questionably by one public authority, are cited by another (in the context of which party
lost) to influence and support its own formal decision. If the Tribunal only wishes to
exploit the outcome, irrespective of its validity then its objectivity must be called into
question.

Rejected point of law subsequently found to be correct in judicial review

12. Appeal EA/2013/0285 is another that falls in the category of proceedings considered by
the Tribunal to have been unsuccessful for the Appellant on the basis that he “lost”. The
appeal relied on the local authority’s legal duty to be able to demonstrate how its
standard £70 court costs claimed in Council Tax cases were arrived at to persuade the
Tribunal that it would be able to disclose how much expenditure it incurred in respect of
the cost element for summonsing the defendant. Paragraph 14 of the respective Decision
Notice (FS50505226) records that through discussions between relevant officers1 it was
noted that ‘the council had no legal obligation to hold the information requested’.

13. Both the Commissioner and Tribunal agreed that there was no legal obligation on the
Council to be able to support its costs. Ironically, however, in a related matter (judicial
review of Tottenham Magistrates)2 it was determined that it was unlawful for the court
to award costs without having sufficient relevant information from the billing authority
to support them. Additionally it was held that any defendant wishing to challenge the
lawfulness of the order before it is made must be given a fair opportunity to do so,
requiring the defendant also to be provided with the information as to how the sum had
been arrived at.

14. Another aspect of the above case should be brought to the attention of the Tribunal
which reinforces the claim3 that FOI legislation was enacted to function as a way of
finding things out from members of the public, who when affected by oppressive actions
of public authorities, have sought to hold them to account. It is reasonable to deduce that
the case papers where made available to the High Court as a source of reference for use,
along with related FOI request outcomes etc., for assisting the production of the
judgment in the Tottenham case. The only alternative explanation as to why the
judgment would reflect so many aspects of the findings from the Appellant’s research
into his own intended appeal would be down to some extraordinary coincidence.

1
Local Taxation & Benefits Shared Service Manager, Strategic Lead - Revenues, Court Enforcement Officer
and Accountancy
2
R (on the application of Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin)
3
Grounds of Appeal EA/2017/0019 (paragraph 14)
15. NELC increased its standard summons costs by 120% by consolidating expenditure in
respect of making the complaint (front loading) and adding a sum equal to 23% of the
aggregate of those previously applied. The decision was agreed by members following
public consultation and was the preferred measure over alternative proposals to
introduce a charge for replacement bins or garden waste collections with the aim of
achieving savings by generating £188,000 additional each year in court costs income.
This was believed to be unlawful, reinforced by the fact that it is held on record that
NELC wrote advising the Magistrates’ court that the decision had been taken to increase
the court costs without any evidence to support that its incurred expenditure had
increased.

16. An opportunity arose to test the lawfulness of costs in the Magistrates’ court subsequent
to an unsuccessful attempt being made to obtain a breakdown of the costs via FOI. It
was in the public interest which was why everything relevant to the matter was made
publicly available on a forum dealing with council tax issues. It had set out simply to
record a procedure that would hopefully lead to the Magistrates’ court tackling the
apparent unlawful application of summons costs but morphed into a guide providing the
steps required in pursuing case stated and judicial review procedures.

17. Initial entries formed the evidence submitted to the Magistrates’ court to challenge
NELC’s liability order application which focussed on the changes it had implemented.
Other entries were thrown in resulting from the Appellant’s research over a period of
time which identified the abuse by local authorities manipulating costs for the purpose
of generating income, to act as a deterrent or used as a penalty etc. etc.

18. A number of months into the Appellant’s fight in pursuing his appeal it became evident
that the Reverend Paul Nicolson who heads the campaign group, ‘Taxpayers Against
Poverty’ decided upon bringing to the attention of Tottenham Magistrates the hardship
on residents that was caused due to summons costs being added to late and non-payers
of council tax by Haringey Borough Council. The Magistrates similarly sought to
prevent the Reverend’s appeal coming before the Queen’s Bench by refusing to state a
case. A claim for judicial review for a mandatory order was subsequently made for
which permission was granted to bring judicial review of the decision by the Magistrates
to award the costs against the Reverend. At around this time the Reverend had secured
representation via the Bar Pro Bono Unit who had up until then been acting in person.

19. The Reverend, in whose favour the appeal went, was praised in the judgment for
bringing the case before the court. Mrs Justice Andrews described the appeal, as raising
‘issues of significant public interest to both council tax payers and local authorities’.
The costs awarded, which were apparently donated to the access to justice foundation,
were in the sum of £33,000.

20. In the Appellant’s case stated appeal the questions of law on which the opinion of the
High Court was sought were presented to the Magistrates’ court in the following terms:

“The questions focus on two principle points of law with regards regulation 34 of
the Council Tax regulations (SI 1992/613).

Those points being, whether

i) costs being disputed as unreasonable should have been awarded by


the court without evidence from the council to support them.

ii) costs specifically incurred by the council for obtaining the liability
order should have been charged at the summons issuing stage.”

21. The judgment’s conclusion in the Tottenham case addresses directly the Appellant’s first
question of law (and Appeal EA/2013/0285). If there had been no obstruction and the
appeal proceeded, it is completely rational that the court would have made similar
judgment as in the Tottenham case which raised the same issue and found the
Magistrates Court’s granting of the costs unlawful. The Tottenham judgment at
paragraph 61 states as follows:

“This application for judicial review of the decision taken by the Magistrates must
therefore succeed. I was told that since the hearing the order for costs against the
Claimant has been withdrawn, but that does not render the proceedings academic;
as I have said, it raises issues of wider public importance. Had the order not been
withdrawn, I would have quashed it. Since it has been withdrawn, I will declare
that the order was unlawful, because

i) the Magistrates did not have sufficient relevant information before them
to reach a proper judicial determination of whether the costs claimed
represented costs reasonably incurred by the Council in obtaining the
liability order;

ii) the Magistrates erred in law by failing to make further inquiries into
how the £125 was computed and what elements it comprised; and

iii) the Claimant was denied a fair opportunity to challenge the lawfulness
of the order before it was made, by reason of the failure to answer his
requests for the provision of information as to how the sum of £125 was
arrived at.”

22. With regard to the second question in the Appellant’s application to state a case; that too
is addressed in general terms (along with the first question) in paragraphs 34-60 of the
Tottenham judgment. The guidance 4 with most relevance to clarifying the question of
legality of front loading expenditure to the summons stage costs (the second question of
law on which opinion was sought) is found in paragraphs 37-38, 42, 44, 47-50, 54 and
59. The answer, however, is summed up in paragraph 50, as follows:

“In principle there is no reason why a local authority should not decide to limit the
costs it claims to the costs in connection with issuing the summons, although in
practical terms that approach provides no incentive to the respondent to pay up
after the summons is issued. What matters is that the costs that it does decide to
claim are properly referable to the enforcement process.”

23. It would therefore also be rational in respect of the second question that the court would
have come to the same conclusion and held that it was unlawful that the Magistrates
granted the costs on the basis that the costs claimed for issuing the summons included an
element improperly referable to the subsequent enforcement process. It could not have
been defended on the basis that a decision had been made to limit the expenditure
claimed to the costs in connection with issuing the summons because the court had been
informed by NELC of its decision to front load them.

24. The summons had previously been charged at £32 with a further £25 claimed for
obtaining the liability order. The new cost for a summons was £70 with no further
charge in respect of those cases which proceeded to court. This was a means of plugging
a gap in the council’s finances and forecasted to generate an additional £0.752 million in
costs income over a four year period.

4
Tottenham judgment (para 36) ‘...there are no authorities that specifically address these Regulations, and this is
an opportunity for the Court to afford some general guidance as to their interpretation and scope.’
25. There are further telltale signs pointing to the likelihood that the case material in the
appeal (EA/2013/0285) had been made available as a source of reference for the
Tottenham case. For example, it is likely that paragraph 4 in the Appellants application
for permission to appeal to the upper tribunal had a degree of influence:

“Regulation 34(5) lays down the conditions under which the authority must accept
payment and the application not be proceeded with (see FD, §7). Those conditions
are met if there is paid or tendered to the authority an amount equal to the
aggregate of the outstanding balance and a sum of an amount equal to reasonable
costs incurred.”

The Tottenham judgment contains the following in paragraph 37:

“....Regulation 34(5) sets out the circumstances in which the application for a
liability order shall not be proceeded with. The respondent must pay or tender to
the local authority any unpaid council tax plus “a sum of an amount equal to the
costs reasonably incurred by the authority in connection with the application up to
the time of payment or tender.”

26. Paragraph 18 of the Appellant’s Grounds of Appeal highlighted the relevant government
guidance:

‘A 1993 publication by the DoE, (Council tax practice note 9: Recovery and
Enforcement) states under heading ‘liability orders’ that the amount claimed by
way of costs in any individual case should be no more than that reasonably
incurred by the billing authority. Paragraph 3.18 of the DoE document said, so far
as relevant:

“3.18.....The order will include the costs reasonably incurred by the authority
in securing the order. Whilst it is likely that authorities will have discussed a
scale of fees with the Clerk to Justices it should be recognised that the Court
may wish to be satisfied that the amount claimed by way of costs in any
individual case is no more than that reasonably incurred by the authority.”

This was reiterated in a recent publication by the Department of Communities and


Local Government on good practice in the collection of Council Tax arrears:

“3.4 Local Authorities are reminded that they are only permitted to charge
reasonable costs for the court summons and liability order. In the interests of
transparency, Local Authorities should be able to provide a breakdown, on
request, showing how these costs are calculated. While it is likely that
authorities will have discussed costs with the Clerk to Justices it should be
recognised that the Court may wish to be satisfied that the amount claimed
by way of costs in any individual case is no more than that reasonably
incurred by the authority.” ’

In the Tottenham judgment the following was similarly stated in paragraph 56:

‘In June 2013 the Department for Communities and Local Government issued a
document entitled “Guidance to local councils on good practice in the collection of
Council Tax arrears.” Under the section entitled “Enforcement”, in paragraph 3.4,
the Guidance states as follows:

“Local Authorities are reminded that they are only permitted to charge
reasonable costs for the court summons and liability order. In the interests of
transparency, Local Authorities should be able to provide a breakdown, on
request, showing how these costs are calculated. While it is likely that
authorities will have discussed costs with the Clerk to Justices it should be
recognised that the Court may wish to be satisfied that the amount claimed
by way of costs in any individual case is no more than that reasonably
incurred by the authority.” ’

27. Paragraph 3 of the Appellant’s ‘Reply’ to the Commissioner’s ‘Response’ argues that
the term reasonably incurred would in fact mean actual expenditure (emphasis added):

“The Commissioner, apparently in his Response at §27(2), implies (figuratively


speaking) that councils have a license to print money because no statutory
provision exists that states councils must hold information enabling them to justify
costs. However, regulation 34(5)(b) of the Regulations provides for “costs
reasonably incurred”. The term “incurred” appears in these circumstances to mean
actual expenditure so would be reasonable to expect that a court would require
satisfying they were no more than this.”

The Tottenham judgment makes the similar point in paragraph 42, as follows (emphasis
added):

“It seems to me that in principle the intention in the Regulations is to enable the
local authority to recover the actual cost to it of utilising the enforcement process
under Regulation 34, which is bound to include some administrative costs, as well
as any legal fees and out of pocket expenses, always subject to the overarching
proviso that the costs in question were reasonably incurred. However, bearing in
mind the court's inability to carry out any independent assessment of the
reasonableness of the amount of those costs, the Regulations should be construed
in such a way as to ensure that the costs recovered are only those which are
genuinely attributable to the enforcement process.”
28. Paragraph 21 of the Appellant’s ‘Grounds of Appeal’ refers to a cap on costs applicable
to Welsh billing authorities to progress an argument that costs which are claimed by the
billing authority must be properly referable to the enforcement process with emphasis on
the legal requirement 5 (emphasis added):

‘A legislative provision for capping costs is set out in the Council Tax and Non-
Domestic Rating (Amendment) (Wales) Regulations 2011. Though not applying in
England, where there is no cap, they nevertheless amend the “Regulations”
governing England and Wales. Rather than the cap itself which applies only in
Wales, attention here is on the references made to paragraphs (7)(b) and (8) to
regulation 34. Regulation 3 of the 2011 Welsh amendment provides so far as is
relevant, as follows:

“3. (1) The Council Tax (Administration and Enforcement) Regulations


1992 are amended as follows.
(2) In regulation 34 (application for liability order)—

(a) in paragraph (7)(b), after “the order” insert “(which costs, including
those of instituting the application under paragraph (2), are not to
exceed the prescribed amount of £70)”;

(b) in paragraph (8), after “the application” insert “(which costs,


including those of instituting the application under paragraph (2),
are not to exceed the prescribed amount of £70)”;”

Clearly, cases proceeding to court and incurring costs under paragraph (7)(b)
or (8) can include those of instituting the application. It cannot mean
conversely that cases which are instituted but not prosecuted can include costs
of making the application and obtaining the order. It is explicit in its references
that those cases for which liability is settled prior to a hearing will only incur
costs of instituting the application. Parliament must have intended that the
regulations were formulated so as to provide a person issued a summons the
opportunity to reduce the otherwise higher costs by settling liability before the
hearing date. ’

The Tottenham judgment makes similar points in paragraph 38, as follows (additional
emphasis added):

5
The Explanatory Memorandum to legislation introducing the cap on costs (Tottenham judgment, paras 47-49)
was widely cited by the Appellant in requests in 2014 targeting those billing authorities which front loaded all
enforcement costs in respect of instituting the summons. The Institute of Revenues Rating and Valuation
featured the request in a series of ‘webinars’, updating billing authorities on the Tottenham proceedings and any
relating matters (Dec 2014 for example) as it was considered that the case raised ‘issues of significant public
interest to both council tax payers and local authorities’.
‘Ms Henderson submitted, and Ms Mountfield agreed, that if such costs were
recoverable at the stage in between issue of the summons and hearing for the
liability order, they must necessarily be subsumed in the expression “costs
reasonably incurred in obtaining the order” in Regulation 34(7). Otherwise there
would be no incentive to the respondent to pay the council tax before the hearing. I
agree that as a matter of necessary implication, and for the policy reason referred
to by counsel, costs incurred in obtaining the order must encompass costs incurred
in connection with the application for a summons. Plainly the costs would
encompass, but are not confined to, the fee for issuing the summons: the
expression “in connection with the application” is wider than “the costs of making
the application”. However, there still has to be a sufficient link between the
incurring of those costs and the application for a summons. ’

29. Paragraph 50 of the Tottenham judgment refers again to the approach of applying costs
only at the summons stage in the sense that it ‘provides no incentive to the respondent to
pay up after the summons is issued’ (see above para 22). Note that one of the requests
(see footnote 5) made to Northampton Borough Council (NBC3393 1243) expressed the
following on 21 December 2014 and 13 February 2015 in response to findings regarding
the approach to front loading:

“....less than 4% of Northampton residents pay their accounts in full under the
discussed circumstances. Perhaps a contributing factor would be that the council
does not differentiate the Summons Costs as the law provides and so there is no
advantage for a debtor to pay promptly and may as well leave the debt outstanding
for as long as possible but of course being mindful to settle before further
enforcement costs are incurred.” (21/12/14)

“It has been claimed that less than 4% of defendants after being served a summons
settle their account before the case is heard implying that the proportion is too
insignificant to warrant the administrative burden of differentiating between the
two sums. Not withstanding the fact that 3.89% who do settle, pay costs in respect
of expenditure which the council has not incurred, it may be that the reason so few
do pay is because they have knowledge that their costs would not increase should
the case go ahead, therefore no incentive to pay promptly. This point was raised in
my email, 21 December 2014.” (13/02/15)

30. With regard to the circumstances where it might be considered a legitimate approach 6 to
aggregate the costs and split them by the number of summonses, the Tottenham case

6
The Tribunal’s Decision on the application for permission to appeal to the Upper Tribunal (para 6) makes the
following familiar remark: ‘There is nothing in that wording to preclude the application of a standard charge,
provided it represents a reasonable estimate of the average cost of the application at the prescribed time’
(EA/2013/0285)
emphasised the importance of ensuring ‘that the right types of costs and expenses are
taken into account’, see paragraph 46 of the judgment (emphasis added):

‘In principle, therefore, provided that the right types of costs and expenses are
taken into account, and provided that due consideration is given to the dangers of
double-counting, or of artificial inflation of costs, it may be a legitimate approach
for a local authority to calculate and aggregate the relevant costs it has incurred in
the previous year, and divide that up by the previous (or anticipated) number of
summonses over twelve months so as to provide an average figure which could be
levied across the board in “standard” cases, but could be amplified in
circumstances where there was justification for incurring additional legal and/or
administrative costs. If that approach is adopted, however, it is essential that the
Magistrates and their clerk are equipped with sufficient readily available
information to enable the Magistrates to check for themselves without too much
difficulty, and relatively swiftly, that a legitimate approach has been taken, and to
furnish a respondent with that information on request.’

31. A request made in 2014 to Leicester City Council (FOIA 5872) delved into the historic
‘composition of costs’. It transpired that its costs were reviewed at three yearly intervals
and a selection of these breakdowns were disclosed. The findings provided clear
evidence that figures were inappropriately manipulated to artificially inflate the
expenditure incurred by the practice of counting twice the actual hours that were
attributed to staff dealing with recovery.

32. The hourly rate for staff dealing with recovery was calculated at £13.94 (including
employment costs) then doubled to £27.88 and applied as the hourly rate in respect of
the time attributed to recovery work. The breakdown revealed the following:

Scale 5 - per Annum £21,519

Scale 5 - per hour £11.15


Employer Cost - 25% £2.79
£13.94

Cost of employing staff to do the “day work”


while staff are dealing with recovery work
£13.94
£27.88
33. Note that in the dialogue that ensued from the findings of the research it was expressed
the following on 21 July 2014 and 10 September 2015 in respect of the approach taken
to artificially inflate the costs by double-counting the staff hours:

“There are a number of elements within the costs calculations which don't make
any sense. However, the one standing out more than any other is the way the
hourly rate has been doubled which relates to pay grade 5 staff.

With regards the 2010-11 calculation, it appears £0.323+ million, for this alone,
has been wrongly included.

The justification for this appears to be quite wrongly because the hourly rate
calculated at £13.94 is doubled to £27.88, as they consider the cost of employing
staff to cover for the non-recovery work while staff are dealing with recovery
work to be an additional cost attributable to recovery.” (21/07/14)

‘Thank you for the clarification attached in letter dated 8 September 2014.
Regarding this it states:

“We have a fixed number of staff for billing and processing work and whilst
they engage in recovery tasks that “gap” has to be filled. This has to be an
additional cost attributed to recovery as staff duties have transferred from their
normal work.”

The expenditure incurred by the council in respect of filling the “gap” is not
attributable to recovery. This cost is attributable to everyday billing and processing
work. The council (by sleight of hand) has doubled its expenditure for the
purposes of justifying higher costs. It is inconceivable that highly remunerated
executive officers responsible for sanctioning this would not be aware the accounts
were being falsely represented.’ (10/09/14)

34. Research centering on the types of costs and expenses which are taken into account,
identified other anomalies. For example, costs were found to have been artificially
inflated because of a bad debt element being factored into the calculation. What this
effectively meant was that those from whom payment was recovered were paying
inflated costs in respect of those whose costs were waived or eventually written off.

35. It was/is a general approach for billing authorities to estimate the cost per case by taking
the overall costs then dividing it by the total number of estimated summons minus a
percentage to factor in the bad debt provision. Put simply, if the overall expenditure is
£1m and the number of summonses were estimated at 20,000 (£1m ÷ 20,000 = £50), if a
bad debt provision of 30% is assumed the costs would be artificially increased to £70
due to a reduced figure of 14,286 summons being substituted into the equation. This
unquestionably means that more than has reasonably been incurred by the council is
being claimed against those whom court action is taken but whose costs are neither
waived nor written off.

36. Note that in the dialogue that ensued from the findings of another request, this time
made to Haringey Council (LBH/2068313), it was expressed the following on 9
December 2013 in respect of the breakdowns provided and the approach taken to
artificially inflate the costs by substituting the total figure for summonses with a lower
amount:

“Would you please confirm whether the information supplied to HM Courts


service was accurate in regards the total number of accounts summoned (18,153)

Please see the following spreadsheet where the number of summonses issued in
2010/11 was for Council Tax - 23,227 (column 43) and Business rates - 1,707
(column 97) making a total 24,934.”

37. It is possible, or more likely that it was the above and similar research carried out by the
Appellant for his own intended appeal that was the basis for a significant amount of the
general guidance (see footnote 4) incorporated into the Tottenham judgment.

Labelled vexatious as alternative to addressing uncomfortable requests

38. The Tribunal also cites those proceedings which were deemed previously to be
vexatious (in the context that the Appellant had lost) to reinforce its decision that the
present case would also be. Apart from this indicating that the Tribunal had been
prejudiced by other outcomes there is evidence that those proceedings had concluded
unfairly. The Appellant was up against brick walls on every front and it was therefore
not unreasonable that he attempted, by whatever means were available, to carry out his
own investigations. The fact that the Commissioner and Tribunal favoured in all cases a
cover-up, this direct assistance made them in effect complicit in the gross negligence of
the public authorities failing to investigate the respective criminal actions taken against
the Appellant.
39. It was founded on dubious claims (for example, that the Appellants concerns had been
comprehensively addressed by the Council, LGO, police and the courts) to support the
decision in Appeal EA/2017/0019 that the requests had been submitted with a view to
vent dissatisfaction and re-open issues that had already been dealt with and were
therefore vexatious. However, the Appellant’s submissions included evidence showing
manifestly that these claims were false, therefore inconceivable that the Commissioner
and Tribunal had considered the evidence in equal measure.

40. In respect of two other complaints the Commissioner used a single decision notice (in
both cases) to record her decisions in respect of a number of requests which were
deemed vexatious because her reasoning when determining each of the matters were
identical. The Commissioner considered a total five requests 7 under the reference
FS50636604 to be a continuation of Council Tax enforcement matters going back to
2011 when only 1 request could conceivably have been considered to be linked. Four of
the requests surrounded the Appellant’s wrongful conviction. The fundamental
argument for why the requests were characterised as vexatious was because they
continued on a theme of Council Tax enforcement. The Commissioner considered
similarly under the reference FS506656398 that all the requests were a continuation of
the matters going back to 2011 but only 1 of the 3 requests had any connection. From an
aggregate of 8 requests deemed to be a continuation of the Council Tax enforcement
matters only 2 could be linked.

41. The Tribunal (EA/2017/0062) subsequently found in the Commissioner’s favour in


respect of Decision Notice FS50636604 and notwithstanding the irregularity set out
above, the decision was unlawful in just about every other respect imaginable 8.

42. Turning to Decision Notice FS50656398, the Appellant submitted an out of time appeal
(EA/2018/0018) accompanied with a request for an extension of time to apply. This is
referred to by judge Davis Thomas in paragraph 38 of the present decision as yet a
further appeal he had ‘recently tried unsuccessfully to bring’, the details of which he did
not deem necessary to set out but found selectively a number of points he considered
worthy of note. However, in the interests of objectivity it is deemed by the Appellant to

7
FS50622654, FS50636574, FS50636604, FS50637739 FS50650239
8
Misapplied legal test in Dransfield | Failed to adequately support the decision | Lack of objectivity | Taking into
account irrelevant factors | Failure to take account of relevant factors
be relevant to set out the details surrounding why he was unsuccessful in bringing the
appeal.

43. The Appellant was unable to complete an application within the time limits in respect of
Decision Notice, FS50656398 and did not apply by seeking an extension of time as he
considered the amount of time and effort which would be required was unjustified
weighed against the uncertainty of whether the extension would be granted. Due to a
new set of circumstances, the complainant considered that the public interest value of
the appeal justified the time and effort that would be required to proceed if there was a
possibility of having the matter adjudicated on by the Tribunal. The wider public
interest was borne out of the systemic failures of police and Crown Prosecution Service
(CPS) disclosing evidence which received (and continues to received) wide coverage in
the national press recently and was the subject of a joint report in July 2017 by HM
Inspectors of the CPS and Constabulary.

44. The Appellant’s requests, which have been considered vexatious, were made as a
consequence of his wrongful conviction. He believed for good reason that he was set-up
and various public bodies, including the Commissioner, have intentionally obstructed
the complainant obtaining answers. For example several requests to the CPS on the
theme of the disclosure of evidence were obstructed. Though all were escalated as
complaints to the Commissioner, none resulted in the issue of a Decision Notice. It is
viewed, with some justification, that the Commissioner’s role was to assist the CPS in
obfuscating the process because the Appellant’s prosecution clearly fell into a category
of cases where disclosure failures affected the right to a fair trial. It was therefore
considered, even though it was considerably outside the time limits, to be in the interest
of justice that the extension of time to apply was granted.

45. The Tribunal Registrar considered the explanation given was unacceptable for the
appeal being over 6 months outside the statutory time limit but it is clear that the
explanations given by the Appellant in his application for an extension of time were
misunderstood. The Registrar apparently considered that the amount of ‘time and effort’
needed to appeal, which the Appellant referred to, was claimed by him to have been
increased (to the extent that it justified the delay) because 3 complaints had been
incorporated into the same decision notice. The consolidation of the complaints had no
bearing on the Appellant’s ability or decision to submit an appeal sooner, it was a
simple fact that he missed the time limit and the decision (after that) was simply down
to whether the ‘time and effort’ involved in appealing could be justified when it was
probable that the extension would not be granted. It was subsequently believed that the
public interest value, brought about by the wide press coverage of relevant issues, would
make the granting of an extension of time more probable and would justify the work
needed.

46. A second reason why the explanation was not considered acceptable was apparently
because the Appellant was unable to distinguish between the Criminal Procedure and
Investigations Act 1986 (CPIA) which governs how disclosure of evidence is dealt with
and the Freedom of Information Act 2000 which deals with the disclosure of
information to the public. He had not confused the Acts and did not consider it possible
to make an application to the police to disclose evidence by way of a request for
information disclosure under the Freedom of Information Act 2000. There was no
reason why the Registrar would suggest that the Appellant believed that to be the case.

47. The requests were a consequence of the Appellant’s wrongful conviction; the cause of
that was the wholesale abuse of the CPIA. There was simply a greater public interest
value in the appeal to the Tribunal because of the systemic failures of police and CPS
disclosing evidence which was and to some extent still receiving press coverage.

48. The Registrar considered the Appeal Grounds were of insufficient strength to justify
admitting the appeal on the basis of the interests of justice but gave no reasons in the
refusal notice (to extend time) explaining why the submissions did ‘not disturb the
conclusions of the decision notice’. The Registrar made it abundantly clear by the
spurious content in paragraph 3.2 that an Appellant, if he is a member of public (as
opposed a public authority) has two opponents in an Information Rights Tribunal which
was in that case the Commissioner and the Tribunal:

“It is clear to me that Mr is using the Freedom of Information Act 2000 to


pursue personal issues about his dealings with Humberside Police and a Trial
which took place in his absence as he chose not to attend the Magistrates’ Court on
15 December 2015. Whilst he is coy about the details, it appears that Mr
have appealed the Magistrates’ Court conviction to the Crown Court (such appeal
means that the case is re-heard in full); he fails to indicate what the outcome of any
Crown Court appeal was. I deduce from his coyness that he either did not appeal to
the Crown Court or that the Crown Court, at its re-hearing of the evidence,
dismissed his appeal.”

49. It was unclear what relevance there could have been to the Registrar’s reference to a
‘trial which took place in his absence as he chose not to attend’ or that the Appellant
had ‘appealed the Magistrates’ Court conviction to the Crown Court’. The inference
that the Appellant wished to be economical with details surrounding why he did not
attend the trial and the appeal to the Crown Court were completely off the mark. It was
of course academic anyway because the Appellant alleged that the police, courts and
CPS had been complicit in disadvantaging him to the greatest extent possible as a means
to succeed in falsely criminalising and defrauding him.

50. In any event, the Appellant explained in his Grounds of Appeal why he did not attend
the trial. The fact that he did not go into detail does not reflect any wish to keep
anything from the Tribunal which would disadvantage him. It was the wholesale breach
of the CPIA which caused him to be wrongly convicted which was comprehensively
evidenced in his Grounds of Appeal. The failure to attend the trial and any outcome
determined by the Crown Court were also irrelevant because of this. If it was deemed
relevant to the Tribunal, the details which the Registrar referred to in paragraph 3.2 of
the refusal notice are already held in appeals EA/2017/0062 and EA/2017/0161, the
reference in both cases is the Open Bundle, File 2, pages 5-113. The Commissioner
included the information in those appeals after he had contacted the Appellant asking to
be forwarded the papers referred to above on 17 May 2017 as follows:

“Further to the Tribunal’s directions below I would be grateful if you could


confirm by 23 May if you wish to have any further documents added to the
hearing bundle for this matter.

In particular I believe it would be useful for the following documents, linked to


from your FOI request of 4 May 2016 entitled “Degree of evidence - Public
authority vs. Member of public”, to be included in the bundle in order to set out
the background to the requests in the present matter:

[Links to online documents]

However, I am not able to download or print these documents. If you are able to
provide electronic copies of these documents, together with any other documents
you consider to be relevant by 23 May 2017, I would be grateful.”
51. The Appellant forwarded the documents as requested but was not that naïve not to know
why they were asked for. The Registrar had most likely raised the issues in paragraph
3.2 of the refusal decision as a ploy to encourage the Appellant to alert the Tribunal to
these documents (as he did do) so it could claim he was raising matters that had been
dealt by the courts and his requests had no serious purpose and were therefore vexatious.

52. Presumably, had the appeal been allowed the Tribunal would have concluded that the
requests were vexatious on the strength of those papers forwarded by request of the
Commissioner on the basis that the Appellant wished to re-open issues that had already
been dealt with by the court. Although academic, had there been such an outcome it
would have been misconceived because those papers provided evidence of all the
following failures which supported the Appellant’s allegation of being convicted on a
false charge with Humberside police the court and CPS all complicit:

 HP) failing to pursue all reasonable lines of enquiry and proceeding with the
case when it could not conceivably have met the evidential stage test (witness
statements were clearly unreliable and of questionable credibility, i.e. false).
breach of the Police and Criminal Evidence Act 1984

 The CPS failing to assess evidence to ensure that the charge is still appropriate
and where not, discontinue the prosecution, (improper case management).
breach of the Police and Criminal Evidence Act 1984

 HP failing to retain footage of a total 7 CCTV cameras covering relevant areas


in respect of the day of the alleged matter

 HP failing to obtain a statement from a witness who was in a position to have


given an account from a comparable perspective as the member of police staff
and the witnesses who submitted perjured evidence.

 failure of the CPS to properly serve material on the Appellant informing him
of his rights if he wished to call a defence witness. breach of the Criminal
Procedure and Investigations Act 1996

 witness statements containing completely untrue accounts. liable to prosecution


under section 89 of the Criminal Justice Act 1967

 failure of the CPS to properly serve material on the Appellant considered


capable of undermining the case for the prosecution which also set out the
statutory requirements to submit a written defence statement. breach of the
Criminal Procedure and Investigations Act 1996
 Magistrates court proceeding in the absence of the Appellant when there was
an acceptable reason for his failure to appear. breach of s11 of the Magistrates'
court Act 1980

 Magistrates’ court refusing to re-open the case as was required in the interests
of justice. breach of s142(1) of the Magistrates' court Act 1980

 Magistrates’ court refusing to hear the case again by different justices, as was
required in the interests of justice. breach of s142(2) of the Magistrates' court Act
1980

 Magistrates’ court improperly managing the case following the entering of a


not guilty plea. contrary to the Magistrates’ Court Disclosure Review, May 2014

 Magistrates’ court failing to assist parties comply with their respective


obligations in accordance with the ‘effective trial preparation form’. non-
compliance with guidance notes to the effective trial preparation form

 Crown court refusing permission to appeal on the spurious grounds that the
Appellant put forward no adequate reason for the appeal being out of time and
deliberately absented himself from trial.

53. The Registrar’s refusal states in paragraph 4 that because the Appellant changed his
mind this ‘considerably [undermined] his submissions that the decision notice, at the
time it was issued, was wrong in law’. There was no significance whatsoever as to why
the Appellant did not lodge an appeal on receiving the decision notice. This presumes
that all complainants who do not appeal a decision must agree that the Commissioner’s
determination is correct in law. This overlooks the possibility (for example) that a
potential litigant although believing he is right might evaluate the probability of being
successful on a playing field that is tilted so much in the public authority’s favour that
he would deem it to be futile.

54. The Appellant was entitled, and so did apply in writing within 14 calendar days of the
date that the decision was refused by the Tribunal Registrar for it to be considered afresh
by a judge. The principle judge of the First-tier Tribunal also refused the application for
an extension in a decision which stated in paragraph 11 as follows:

“I find that Applicant has not here advanced a good explanation for the delay. He
does not say why he was unable to make an application within 28 days or what
circumstances have changed. I find that he basically describes a change of heart
about making an application now which he had previously decided not to make.”
55. The view expressed by the Registrar that no explanation was given to say what
circumstances had changed and the reason why the Appellant subsequently appealed
was simply down to a change of heart, was untrue. The application for the decision to be
considered afresh bears this out in paragraphs 8 and 11 as follows:

“....The fact is he was unable to submit an appeal within the 28 day time limit and
the decision (after that) was simply down to whether the ‘time and effort’ involved
in appealing could be justified when it was probable that the extension would not
be granted. It was subsequently believed that the public interest value, brought
about by the wide press coverage of relevant issues, would make the granting of an
extension of time more probable and would justify the work needed.”

“The requests which are the subject of the appeal were made as a consequence of
the Appellant’s wrongful conviction which was caused because of the wholesale
abuse of the Criminal Procedure and Investigations Act 1986. Therefore, there is
simply a greater public interest value in the appeal to the Tribunal because of the
systemic failures of police and Crown Prosecution Service disclosing evidence
which is currently receiving wide press coverage.”

56. Time constraints for submitting this Appeal do not permit every matter to be analysed in
respect of the irregularities in those proceedings cited by the Tribunal which were
deemed previously to be vexatious. However, there is enough to seriously question the
appropriateness of relying on the decisions and judgments cited from other formal
proceedings in order to influence another formal outcome. The above examples clearly
relate to proceedings which the Appellant had lost, but only on paper.

Allegations of corruption and lack of evidence

57. The Tribunal strengthens the claim of vexatiousness by relying on the Appellant making
unfounded allegations of corruption, but like each public authority against whom
allegations of wrongdoing have been made, and no evidence is offered in their defence,
the Tribunal has followed suit. To routinely state that there is no evidence or that the
allegations are unfounded is not good enough, neither is it sufficient to rely on other
public authorities’ decisions (which are never supported) and proved time and again to
be unworthy of the paper they’re written on. The Tribunal relies again (para 47 decision)
on the Appellant having failed in ‘previous requests and various complaints’ to
establish systemic corruption. However, that failure speaks more about official cover up
than anything else, hence why a vexatious tag is applied.

58. It is unclear in any event which allegations are being referred to because the decision
theoretically incorporates every one of the Appellant’s complaints and requests over the
protracted period of time he has had the misfortune to have been affected by official
error and cover-ups which have been responsible for the Appellant having to institute
numerous proceedings. In that case it would be appropriate to itemise some or any of the
allegations for which the Appellant contests the assertions made that there is no
evidence to support them.

59. Firstly with most relevance to the present appeal it is irrational why the Commissioner
and then the Tribunal would shun the evidence which formed the analysis of the events
covering the period when the letters were purportedly sent. It is telling that the only
explanation defending the assertion that there was no proof of wrongdoing is just one
aspect of the analysis that referred to ‘the same typographical error’. The evidence is
representative of the sum total of all the inconsistencies, so the fact that alone the same
error reappearing does not conclusively prove the wrongdoing, it is only part of the
overall picture which has to be taken into account.

60. Other evidence relating to NELC fraudulently obtaining a Council Tax Liability Order
by submitting a false statement was proved beyond all doubt. That evidence was
provided in the papers of Appeal EA/2017/0019 (EXHIBIT A-1). It is beyond belief that
NELC’s Monitoring Officer and Humberside police’s Detective Chief Superintendent
Head of Specialist Crime Command both declared that there was no evidence of
dishonesty.

61. The Appeal EA/2018/0018 referred to in decision (paras 38 & 46) for which permission
was refused contained in the Grounds of Appeal pretty conclusive evidence that
Humberside police the court and CPS were all complicit in wrongdoing that resulted in
the Appellant being wrongly convicted on a false charge.

Sense of proportion and the amount in contention only £60


62. The Tribunal has been happy to highlight (para 46) that the contested sum which has led
to imposing a huge burden on a number of public authorities through requests and
complaints is only £60. This demonstrates the failure (or perhaps inability) of the
Tribunal to be objective. It is beyond belief how an issue involving the dishonesty of a
government department (as alleged) can be so distorted by the Tribunal to the extent that
it has managed to turn the focus onto the Appellant.

63. The cost to the taxpayer is suggested by the Tribunal ‘to run into thousands, perhaps
tens of thousands, of pounds’. This would be by far a conservative sum, even for an
estimate of the Appellant’s cost which would be in the hundreds of thousands of pounds
bracket. If the Tribunal is implying that the matter did not warrant an appeal to the high
court then it is perhaps worth briefly defending the decision with a number of reasons
justifying why pursuing the matter was not frivolous. To begin with if it is put into
perspective the amount contested scaled up nationally relates to millions of pounds each
year that is dishonestly claimed in court costs by local authorities.

64. Next, NELC had weighed up the pros and cons about taking the Appellant to court (for
the same amount) and therefore could not itself have considered going to these lengths
to be frivolous. If the amount was significant to the NELC then for an individual in
receipt of no income it stands to reason that sum was more significant to the Appellant.
NELC had been informed that the outstanding debt had been paid and an additional sum
exceeding the cost incurred by NELC for instituting the summons. Billing authorities
are restricted by law to claim no more than is reasonably incurred (it is an automated
process). Extensive representations had been submitted to justify why the £10 sum
would cover the aggregate of the £3 court fee and out of pocket expense of postage etc.
for the summons issue, yet NELC chose to pursue the matter in the court to enable it to
enforce an unwarranted additional £60 when it could have considered the matter closed.

65. Rather than the sum contended being the central matter, the true focus of the appeal was
on NELC routinely claiming expenditure unlawfully in respect of many thousands of
cases each year and clearly a matter of public importance. Among reasons why the
judiciary should have welcomed the appeal being presented was the fact that the
standard summons charge had been determined from a decision (public consultation)
relating to the council's 2012 budget-setting. The decision was taken to front load all the
cost of the court case to the cost of merely issuing a summons, forecasted to raise
£0.752 million additional revenue over four years (the summons increased from £32 to
£70). Details of the outcome to the public consultation showed that the majority of
respondents favoured generating income this way than the alternative proposals to
introduce a charge for replacement bins or garden waste collections. The costs appeared
to have been manipulated for an unlawful purpose therefore it was only reasonable to
ask a court to adjudicate on the matter. On being advised by the Magistrates court it was
learned that a Liability Order can only be challenged by an appeal to the High Court by
way of either a case stated on a point of law or a judicial review.

Police involvement

66. The Tribunal does not demonstrate that it fully appreciates the ineffectiveness of the
police when required to investigate public authorities. Time constraints for submitting
this appeal do not allow for more than a mention but it is wholly inappropriate that the
Tribunal suggests that they can be relied on to pursue all reasonable lines of enquiry (see
decision paras 55,57 & 60).

67. The matter was first reported to the police in January 2017 at which time it refused to
record or investigate it. The Tribunal decision records at para 6 that after pursuing the
matter with the IPCC the Police wrote on 9 August 2017 to the Appellant, informing
him that a caseworker would do some initial evidence-gathering in relation to his
complaint before it was forwarded to an investigating officer. In answer to the
Tribunal’s query regarding a result, there is no outcome and from the limited feedback
there is nothing suggesting that any evidence that been asked for and provided has been
looked at.

Misapplying the legal test in Dransfield

68. Time constraints for submitting this appeal do not allow for more than a mention of why
it is contested that the test in Dransfield was misapplied, which is simply that it was a
clear cut case. There was no question of the request lacking a serious purpose (it is
obvious). The need for the test was surplus to requirements and was therefore applied
erroneously.

08 May 2018