Shepard v IC and West Sussex County Council (GIA/1681/2010) involved the Commissioner upholding the appellant’s complaint against the local authority, and issuing a decision notice in his favour. That notice required the authority to search for specified information and to provide it to the Claimant if found. The authority informed the appellant that its search had been fruitless. Apparently therefore, it had complied with the decision notice, but the appellant received no information.
At first instance, his appeal failed, partly on the grounds of the well-established principle that a successful party should not be permitted to bring an appeal. The Upper Tribunal disagreed, and granted permission to appeal, observing that the aforementioned principle “surely relates to judicial decisions by courts and tribunals; it does not necessarily apply to decisions by administrative first-instance decision-makers or independent office-holders”.
Nor was the wording of FOIA itself a barrier to such appeals: section 57(1) expressly confers a right of appeal on both parties, and not simply “the losing party”. Furthermore, both the steps prescribed in a decision notice and the timing of such steps are matters of discretion for the Commissioner. Unlike the enforcement of a decision notice, such questions of discretion are within the Tribunal’s jurisdiction.
It is not clear, however, whether a challenge to a first-instance Tribunal’s refusal to entertain an appeal lies by way of an appeal to the Upper Tribunal or by way of judicial review. A test case (combined references of CH/1758/2009 and JR/2204/2009) will determine this question shortly. In the present case, the Upper Tribunal therefore granted permission to apply for judicial review as a precaution.