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