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The Upper Tribunal Office

(Administrative Appeals Chamber) Grimsby


5th floor North East Lincolnshire
7 Rolls Building DN32
Fetter Lane
London
EC4A 1NL

11 July 2018

Upper Tribunal: GIA/345/2018


Tribunal Case No: EA/2017/0019
Decision Notices: FS50636996, FS50637737
FS50637994, FS50639222

Dear Sir/Madam

Re: Appeal reconsideration at a hearing

I am writing in connection with my rights to apply for the decision to be reconsidered at a


hearing in the Upper Tribunal (in accordance with rule 22 of the Tribunal Procedure (Upper
Tribunal) Rules 2008).

I have decided against applying for the decision to be reconsidered, though this does not
reflect any change in opinion which remains that the decision was wrong in law. If the
substantial amount of effort already put into the appeal has not been sufficient to convince the
Tribunal then it would follow that none of the potential arguments I would put forward would
be good enough, especially on an unrepresented basis. Having said that, it would not hurt to
set out for the record what would have formed the foundations of those arguments as to the
reasons why I disagree with or question the reasons given for refusing permission.

Legal test

The Dransfield test which has become the accepted standard for establishing whether a
request is vexatious (or not) can be applied with such flexibility that the same complaint could
be determined either way (whatever outcome is preferred). It is reasonable therefore to
conclude that an adjudicator will have already made a decision and the application of the test
would merely be superficially justifying an outcome that the request is vexatious in instances
where, if the information were disclosed, it would be potentially incriminating. The use of the
legal test is evidently being routinely abused by the Commissioner and subsequently being
endorsed by the Tribunal where disclosure of the nature of information that the authority
seeking to withhold is likely to cause a risk of substantial reputational impact.

Even if a genuine attempt was made to apply the test objectively a fundamental flaw prohibits
an outcome having any meaningful or consistent value. The test appears contradictory
because the request itself is under the spotlight, not any previous requests or the person
making it, yet the test takes into consideration the history and context of other requests made
by a requester or other dealings between the requester and the public authority. In that case, if
the requestor’s history etc. 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
general 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
requests on there own merits would be that they were the same or substantially similar to
those cited as historically imposing a burden.

Evidently the test was misapplied, that would be clear to any informed and reasonable
member of the public because the finding of vexatiousness was supported on the grounds that
the six requests were the same or substantially similar as those described as relating to the
Council's administration of Council Tax going back to 2011. 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.
It has be an abuse of the Dransfield test to routinely apply it 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.

The requests were submitted as a consequence of the Council’s criminal actions against the
Appellant both in respect of lying in a witness statement to defraud him and subsequently as a
matter of criminal misconduct that involved a dubious investigation to cover up perjury. Out
of the 6 requests under scrutiny, 4 directly asked for details about the questionable
investigation because the Council refused to provide evidence of its findings through normal
channels. It is inconceivable that any of these requests were substantially similar to those
relied on to be so by the Commissioner. The remaining two did not directly ask for details
about the investigation so it was irrational that they were considered suitable to be dealt with
under a common decision notice incorporating all 6 requests. More importantly however, and
consistent with the 4 others, neither of them were substantially similar to any request that
went before them.

Relevant evidence / Explain decision properly

The decision of the Upper Tribunal (UT) states, for all intents and purposes, that the Tribunal
considered all the relevant evidence, or at least it did not fail to, and so the decision was not
challengeable on this point of law. This implies that all the Tribunal must do to meet its
obligation is to make some or other statement to the effect that it has considered all the
relevant evidence. This is observed in paragraph 5 of the Tribunal decision where a get-out
declaration is made; i.e., ‘we cannot refer to every document and submission but have had
regard to all the material when considering the issues before us’. However, this is
inconsistent with the Tribunal’s obligation to explain its decision properly which forms
another part of the criteria set out in the UT decision to ensure an outcome is in accordance
with law. The decision was not properly explained if it failed to demonstrate for example that
the Tribunal had assigned the appropriate amount of weight to all the material that it has
claimed to have had regard to.
But assuming that the Tribunal did have regard to all the material (and the decision properly
explained), the UT decision implies that the findings from that process can not be questioned
in respect of whether it erred in law, merely on the grounds that the appellant disagreed with
the outcome. If it was to be in UT’s jurisdiction to determine whether there was an arguable
error of law, it would have to be on some other grounds such as the decision was legally
irrational or there was bias. These of course were the Appellant’s specific appeal grounds set
out in the prescribed appeal form (UT13). The UT later acknowledges this but went on to
conclude that the Appellant failed to ‘identify the objective evidence which [he alleged to be]
so decisively in his favour’. The judge declared also himself that he was unable to identify
what the evidence was (see under following heading).

Impermissible attempt to have the Upper Tribunal re-evaluate on the evidence

What apparently is being said by the judge is that the Appellant’s representations which have
been considered by the Tribunal and have already identified that the submissions were not
considered in equal measure are irrelevant at the point which an Appeal is submitted to the
UT (only what has been set out in the UT13 form can be considered). Presumably the appeal
grounds appended to the prescribed form are what the UT decision referred to i.e., the
Appellant’s ‘arguments are in large part really no more than an impermissible attempt to
have the Upper Tribunal re-evaluate on the evidence whether the requests were vexatious’. It
must have been put like this as a tactical ploy to prejudice the opinion of anyone considering
the merits of the appeal so they believed that the decision was justified (‘an impermissible
attempt’) ultimately to steer their focus away from the fact that the arguments did identify the
objective evidence.

They were provided to identify the evidence and reinforce the fact that the decision
concluding that the requests were vexatious was attributable to the Appellant’s and the
Council’s submissions not being considered equally.

Failing in duty to act fairly

North East Lincolnshire Council’s version of events has bizarrely been favoured by the
Tribunal over proven facts. For example, the Tribunal has allowed itself to be swayed by the
Council’s claim which was ‘that it had offered to meet with the Appellant to discuss and
attempt to address and resolve his issues’ (para 18 decision). The requests predominantly
concerned the Council’s refusal to provide evidence of its findings in relation to its bogus
investigation into the perjury allegations because a figurative brick wall was put in the way of
any communications which were made in an attempt to address and resolve the issues.
Nothing demonstrates more clearly the Council’s true position regarding its unwillingness to
attempt to resolve these issues than the excerpts of its 23 June and 1 July 2016 emails which
are found in paragraphs 5 and 6 of the Appellant’s ‘Reply’. Contrary evidence was presented
to the Tribunal but the Council’s account was still favoured; the only reasonable explanation
for why it had done this was because it was biased in favour of the Council.

The Tribunal apparently concedes that the Commissioner had no grounds for claiming that the
criminal actions had in fact been comprehensively addressed by the Council, police etc., (para
13, decision). The extensive evidence put forward presumably consigned that assertion to the
realms of fantasy (Appellant’s ‘Reply’ and Exhibits A-1 to A-3). Though the Tribunal did not
go so far as agreeing with the Commissioner, it had (re)presented the Appellant’s submissions
so far out of context that their intended purpose had been materially distorted. He was not as
the decision implied under any illusion that the tribunal was ‘the appropriate venue to explore
whether the council [was] processing liability for Council Tax effectively’. Needless to say,
the Tribunal set the scene for exploiting the Appellant’s Grounds of Appeal for its own
agenda by misrepresenting them in respect of the official error highlighted to the Council
(Grounds of Appeal, paras 13-38).

The representations had been submitted to demonstrate that the burden imposed on the
Council would be far outweighed by the benefits in the form of improved standards within the
Council’s questionable administration which was possible as a result of the Appellant’s
previous dealings with it. The idea was predicated on the basis that the Appellant was
volunteering his time for free, albeit by necessity, so the Council benefited from a free service
(the opposite of a drain on public resources), however, the Tribunal turned this to its own
advantage (para 13, decision). Any uninformed person reading the judgment would most
likely be persuaded that the Appellant had mistakenly believed that the catalogue of
maladministration documented in his Appeal were matters on which the Tribunal had
jurisdiction to adjudicate. The objective presumably would be to mislead any observer
thereby invalidating an argument from a different perspective, i.e., that the claim of an
imposed burden was misconceived.
The extent to which the Tribunal was biased is self evident in respect of the value it put on the
information requested weighed against the imposed burden on the Council to disclose it.
Higher priority was given to allowing the council withhold the requested details thus assisting
it to get away with covering up criminal wrongdoing. This is summed up in para 15, of the
decision; i.e., ‘the appellant's firm belief in wrongdoing by or on behalf of the Council is not
of significant importance to outweigh the factors relevant to assessing vexatiousness’.
However, it should be reiterated that the wrongdoing has been proven beyond all doubt and is
not simply the appellant’s firm belief.

Yours sincerely