Case Reference: EA/2023/0481
Information Rights
Decided after an oral hearing
Heard on: 20th April 2026
Before
JUDGE KIAI
MEMBER TAYLOR
MEMBER PALMER-DUNK
Between
SAJAD HUSSAIN
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
Decision: The appeal is refused.
Introduction
This is an appeal under section 57 of the Freedom of Information Act 2000 (“FOIA”) against a decision notice (“DN”) issued by the Information Commissioner dated 19 October 2023 (reference IC-255075-W1Q4).
The DN concerns a request made by the Appellant to the City of Bradford Metropolitan District Council (“the Council”) seeking updated figures, for the financial year ending in 2023, relating to Direct Payments.
The Council provided information in response to parts 1, 3 and 4 of the requests. It refused part 2 relying on section 12(1) FOIA. It upheld this decision in its review.
The Commissioner concluded that the Council was entitled to rely on section 12(1) FOIA and that the Council met its obligations under section 16 FOIA (advice and assistance).
Our function is to determine whether the DN is in accordance with the law. We are not determining the wider merits of the Council’s social care arrangements or record-keeping practices except insofar as they bear upon the proper application of sections 12 and 16 FOIA.
THE REQUEST AND THE REFUSAL
On 14 June 2023, the Appellant made a FOIA request asking the Council to update a set of questions previously asked in 2009.
This appeal concerns part 2 only, which asked:
‘What is the maximum weekly amount paid by Bradford Metropolitan District Council to any individual under the Direct Payment scheme for the care of a relative’.
The Council’s response dated 6 July 2023 refused part 2 under section 12(1) FOIA, stating that data on the relationship between carers and those in receipt of care is not routinely recorded and that over 1300 records would need to be located and reviewed, with an estimated 15 minutes per record, amounting to over 325 hours.
On internal review dated 22 August 2023, the Council maintained its position, explaining that relationship data may be detailed within support plans or case notes but is not a recording requirement and is not routinely recorded in a standard way, so that identifying whether the information is held and calculating weekly amounts would involve reviewing approximately 1300 cases at 15 minutes per case.
BRIEF PROCEDURAL HISTORY
The Commissioner issued the decision notice dated 19 October 2023.
The Appellant appealed to the Tribunal.
The Commissioner filed a response and applied for strike out.
The Appellant filed submissions and appended submissions from Dr R Kirkham proposing an alternative search method. We are grateful for the assistance those submissions provide in focusing the dispute on the practicalities of section 12 and search methodology. Dr Kirkham also addressed the issue of costs, however no formal application was made.
By decision of Judge Buckley dated 16 January 2024, the Commissioner’s strike-out application was refused. Judge Buckley noted that whilst certain points were unlikely to succeed, the Appellant’s contention that the estimate was not sensible, realistic and supported by cogent evidence, including the alternative method of searching proposed by Dr Kirkham, was arguable.
Directions were issued permitting the Council and the Commissioner to file submissions on the alternative search method:
The Appellant was directed to write to the Tribunal by 26 January 2024 to confirm whether he wanted to make an application for a rule 4(3) reconsideration and for costs as set out in Mr Kirkham’s submissions.
The Appellant was directed to serve any reply by 9 February 2024.
Various documents were to be sent to the Council who were invited to consider if they wish to apply to join the appeal. The Council and the ICO were given permission to provide submissions on the proposed alternative method of searching by 2 February 2024.
The parties were directed to serve each other copies of any documents on which they sought to reply by 11 March 2024.
The parties were directed to serve final written representations on the Tribunal by 15 April 2024.
The Appellant wrote to the Tribunal on 26 January 2024, stating that he didn’t exactly know what was being asked of him and as such he was “simply confirming in the affirmative at this stage, awaiting further direction from the Judge of what I need to do to comply with the direction under rule 4(3)”.
Further directions were sent out by Registrar Bamawo on 8 February 2024. In summary these stated:
The Council is invited to consider joining the appeal, it’s decision must be notified to the Tribunal and other parties by 16 February 2024;
Where the Council intends to join the proceedings it must comply with the directions by 15 March 2024;
The Appellant may reply to Council’s response within 14 days of it being sent to the Appellant;
In the event the Council does not seek to become a party, it must make submissions by 8 March 2024;
Judge Buckley’s directions are suspended, pending the Council’s response to the directions and a reply by the Appellant.
The Commissioner filed submissions dated 2 February 2024 addressing the alternative search approach and seeking directions requiring the Council to respond to that approach.
On 7 February 2024, the Tribunal wrote to the Appellant, asking him to complete and return a GRC5 form.
On the same day, the ICO stated that in light of the Tribunal’s email, it would not yet file the ICO’s response to the Appellant’s costs application until the form was completed. It also stated “I would observe at this juncture that the Appellant’s email providing affirmation in response to the direction was unclear, and it would be beneficial if the Appellant when completing the Tribunal’s form could be clearer in his confirmation as to whether he wishes to pursue the application for costs which was included in Mr Kirkham’s statement”.
The Council filed submissions dated 1 March 2024 responding to the alternative search approach.
The Commissioner confirmed on 14 March 2024 that, in light of the Council’s response, he maintained the DN.
Dr Kirkham filed further submissions dated 15 March 2024 responding to the Council’s March 2024 submissions, including paragraphs 8 and 9 dealing with joinder and system inspection.
On 26 September 2025, Judge Muzaffer gave the following directions (amongst others):
If the Appellant wishes to make any application pursuant to the submissions of Dr R Kirkham dated 15 March 2024, he must do so on form GRC5 by 17 October 2025;
If the Respondent wishes to provide an update to his response, he must do so by 17 October 2025;
The Appellant must serve a reply to the Respondent’s Response by 7 November 2025;
Parties must send to each other copies of any additional evidence on which they intend to rely on 21 November 2025.
On 2 January 2026, the Tribunal wrote to the parties asking them to disregard a previous email that a hearing had been listed for 30 January 2026 “This was listed as a mistake”.
On 16 January 2026, Registrar Bamawo issued directions stating that the Appellant had not filed and served a Certificate of Compliance by 19 December 2025; he stated “I consider this a breach of a direction of the Tribunal. However, I take no action at this stage”. He directed that the parties were to provide their availability to attend an online hearing by 2 February 2026. He stated that any application for a reasonable adjustment at the hearing must be made by no later than 2 February 2026. He vacated a case compliance hearing listed for 20 January 2026.
On 22 January 2026, the Appellant wrote to the ICO asking to arrange a telephone appointment to discuss the substantive issues (he had made similar requests previously to which he had not received a response).
On 23 January 2026, the ICO emailed the Appellant stating he was not prepared to enter what would likely be lengthy telephone discussions regarding substantive issues at this stage. It maintained these were better addressed via written correspondence/submissions from which he could review and take instructions as required. He invited the Appellant to put any matters in writing.
On the same day, the Appellant responded, refusing to address issues in writing. He referred to the fact he was a civilian litigant in person and someone who suffers from dyslexia. He stated that the ICO was going against the overriding objective to cooperate with each other.
On 6 February 2026, Registrar Bamawo issued further directions. He noted that the Appellant had not complied with the previous directions. Amongst other points, he directed “Any application for a reasonable adjustment at the hearing must be made by no later than 13 February 2026” and “Pursuant to rule 8(3)(a), the Appellant is hereby notified that a failure to comply with these or any other directions for of the Tribunal may result in the appeal being struck out for non-compliance pursuant to rule 8(1) without further direction”.
THE LAW
Section 12(1) FOIA provides that section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying would exceed the appropriate limit.
For local authorities, the appropriate limit is £450, calculated at £25 per hour, equivalent to 18 hours.
Regulation 4 of the Fees Regulations limits the activities that may be included in a section 12 estimate to determining whether information is held, locating it, retrieving it, and extracting it from a document containing it.
Section 12 is not a Part II exemption and is not subject to the public interest test.
In the Commissioner’s response, reliance is placed on the approach in Kirkham v Information Commissioner [2018] UKUT 126 (AAC) concerning (i) the precondition that an estimate must exist and (ii) whether the estimate includes costs that are not reasonably expected to be incurred or are not referable to permitted activities, assessed by reference to how the authority actually holds and retrieves information.
THE ISSUES AND EVIDENCE
By way of evidence and submissions we considered a bundle consisting of 92 electronic pages. The Tribunal has considered all of this material carefully but does not consider it necessary to refer to all, or indeed most of it, in this judgement.
The Appellant attended the hearing and made oral submissions. He made several applications. These are detailed below.
We determine the following issues:
Whether the Council make direct payments to relatives.
Whether the Council made an estimate for the purposes of section 12 FOIA.
Whether the estimate was reasonable within the meaning of section 12 FOIA and Regulation 4 of the Fees Regulations.
Whether the Commissioner erred in law in accepting the estimate and concluding that section 12(1) applied.
Whether the alternative search methodology proposed by Dr Kirkham undermines the Council’s reliance on section 12 and the Commissioner’s decision.
Whether the Council complied with its duty under section 16 FOIA.
We adopt this structured approach to reflect the statutory framework of section 57 FOIA and Upper Tribunal authority on section 12, which requires consideration of whether an estimate exists, whether it is confined to costs permitted by regulation 4(3), and whether those costs are ones the authority may reasonably expect to incur (see Kirkham v Information Commissioner [2018] UKUT 126 (AAC)). Given that this is an appeal against a DN, and that directions were issued on an alternative search methodology and the Commissioner’s findings under section 16 FOIA, it is necessary to address those matters expressly.
Cloud Video Platform
The hearing was conducted remotely by way of the Cloud Video Platform. The Appellant chose, of his own volition, to cover his screen and did not appear on camera. He nonetheless participated fully in the hearing by making oral submissions, and the panel was satisfied that he was able to engage effectively and without difficulty in the proceedings. The members of the panel were each visible on screen throughout the hearing. In those circumstances and bearing in mind that the Appellant’s decision not to appear on camera was entirely his own, the panel was satisfied that the hearing was conducted fairly and that the Appellant was not disadvantaged in the presentation of his case.
Reasonable adjustments
The Appellant indicated, in his notice of appeal, that he is a person with dyslexia and may require reasonable adjustments.
The Appellant was directed on numerous occasions to submit submissions relating to reasonable adjustments in advance of the hearing (as set out above at paragraphs 26 and 30). None were received:
Notwithstanding the previous breaches of directions and given that the Appellant was acting as a litigant in person, we had regard to that disclosure and to the guidance in the Equal Treatment Bench Book. Appropriate measures were put in place, as set out below. We are satisfied that, with those measures in place, the Appellant was able to participate in the proceedings without disadvantage.
In addition to the general adjustments discussed at the outset of the hearing, the Appellant made a specific application to record the proceedings for his own use, explaining that he wished to do so in order to reflect on what was said.
The Tribunal considered that request carefully. We explained that the hearing was already being formally recorded by the Tribunal, and that there was no need for a personal recording for the purpose of reflection during the proceedings themselves, as there would be no further hearing as part of these first-tier proceedings. It was explained to the Appellant that if at some point he chose to bring an appeal or make a different application, such that he needed access to a recording, he could contact the Tribunal and request that if it became necessary.
The Appellant stated that that would be at his personal expense and would only be a transcription. The Tribunal explained that the Appellant could indicate in any further application the reasons for the request and all the circumstances would be considered at that point. However, it was not necessary at this point.
We therefore refused the request to make a personal recording of the hearing. In doing so, we explained that if, at the conclusion of the proceedings, the Appellant was dissatisfied with the outcome or considered that he required access to the recording for a proper purpose, he would be able to apply in the usual way for a copy of the Tribunal’s recording.
The Tribunal considered that this approach struck a proportionate balance between accommodating the Appellant’s needs and ensuring the orderly conduct of the hearing, and that permitting a personal recording was not necessary in order for the Appellant to participate effectively.
Separately, and in response to the Appellant’s disclosure of dyslexia, the Tribunal made and explained a number of adjustments to the way in which the hearing was conducted. These included proceeding at a measured pace, offering breaks to assist concentration and memory, allowing the Appellant substantial latitude in making oral submissions, and ensuring that he was not required to rely on written material alone.
The Appellant confirmed that he understood those arrangements and proceeded to make extensive oral submissions over 90 minutes. He was provided with a 10 minute break after 40 minutes (he indicated that he was ready to proceed and did not need further time).
We are satisfied that the reasonable adjustments made were appropriate and sufficient, and that the refusal of a personal recording did not place the Appellant at any disadvantage or prevent him from participating fully and effectively in the hearing. The Tribunal considered whether permitting recording would be necessary to secure effective participation, but concluded that the official recording regime, combined with the opportunity to request a transcript if required for appeal, was sufficient and proportionate. No further reasonable adjustments were requested.
We note also that the Appellant stated that he had seen the bundle but didn’t have it in front of him. He confirmed that he knew what was in the bundle and didn’t need it there with him. He was content to proceed.
THE HEARING ITSELF
In view of the concerns raised by the Appellant in relation to the prohibition on recording (and the conduct of the hearing – raised at a later point in the proceedings), the Tribunal has included, below, a fuller account of what took place during the hearing, than it would normally. Nonetheless, as this account is necessarily a summary, it does not purport to record every aspect of what occurred.
PRELIMINARY POINTS AND APPLICATIONS
The Appellant began by asking what the Tribunal understood to be the issues in dispute. The Tribunal explained that having read the bundle, its understanding was that the central issue concerned the application of section 12 of the Freedom of Information Act 2000, namely whether the public authority’s estimates of the cost of compliance were reasonable. Reference was made to written submissions by Dr Kirkham, which challenged the estimates relied upon by the council.
The Appellant asked if the Tribunal had established his primary contention as set out in his statement on 28th December 2023. His primary concern was that this was a deflection by the council in relation to the fact that they pay relatives direct payments. Section 12 was only a secondary issue. He repeatedly emphasised that his primary contention was factual: namely that the local authority did not, and could not, make direct payments to relatives, and that its reliance on section 12 was a deflection arising after it had changed its position. He stated that this contention had been set out in his written statement dated 28 December 2023.
The Appellant asserted that the council had initially accepted (in 2009) that it did not make such payments but had later changed its position to rely on section 12 once it became aware of his personal circumstances and history with the authority. He asserted that this, in his view, demonstrated wrongdoing. He characterised this change as a deliberate “pivot”, asserting that the authority sought to move away from its original position in order to find an exemption which would allow it to avoid answering the request substantively.
The Tribunal explained that they would need to consider this issue, however they could not confirm if they had found the primary contention ‘proved’ because no findings had yet been made and that the panel would only reach conclusions after hearing submissions and retiring to consider the evidence. The Tribunal invited the Appellant to make whatever submissions he wished.
The Appellant then stated that he wished to raise procedural and jurisdictional concerns. He questioned the Tribunal’s independence and impartiality and drew comparisons with the Information Commissioner’s asserted independence from the local authority. He said he wished to “challenge the assumptions” of independence which he said had been made throughout the process.
The Appellant proceeded to give a lengthy account of the procedural history of the case and the time that had elapsed since his original Freedom of Information request in June 2023.
He alleged that his Freedom of Information request had led to severe personal consequences and he described events involving West Yorkshire Police, including his arrest on suspicion of neglecting his brother and the imposition of bail conditions preventing contact – the police had now indicated there would be no further actions against him. He stated that his brother had been taken into care and that he believed this to be unlawful. He described a lengthy period in which he said he had been unable to see his brother and alleged that his brother had been mistreated while in care. He stated that he had raised safeguarding concerns which he said had not been properly addressed. He stated that in parallel to the delays in the Tribunal there had been a live criminal investigation by West Yorkshire Police into allegations of neglect against him.
He further described separate criminal proceedings brought against him in relation to alleged criminal damage, which he said had lasted for much of 2025 and ultimately failed. He alleged that these proceedings had been based on false evidence and formed part of a wider campaign against him.
The Appellant complained of what he described as excessive and unexplained delays in progressing the appeal, in particular about the period between March 2024 and September 2025 and the fact that a previously listed hearing in January had been vacated.
The Appellant asked the Tribunal to explain the reasons for those delays. He stated that, in his view, the delays were indicative of wrongdoing. The Tribunal explained that it was unable to address administrative matters relating to listing delays and that the Appellant could pursue those matters separately with Tribunal administration if he wished (the Tribunal has now seen that the Tribunal wrote to the parties asking them to disregard a previous email stating that a hearing had been listed for 30 January 2026 as “This was listed as a mistake”).
The Appellant stated expressly that he was asserting that he was being subjected to judicial fraud. He made extensive and serious allegations, asserting that the council, together with other public bodies including the police and other agencies, were involved in covering up systemic fraud in adult social care. Two examples are set out below:
“I believe there is….a clear correlation between the delays that have been perpetrated or facilitated in these proceedings which are substantial and you are not in a position to give me an explanation of and in correlation it is inconceivable that West Yorkshire Police would have a 945 day…criminal investigation only to conclude that…they’re not going to pursue that any further. Subsequently, in the interim, while …in the background of those criminal proceedings, to instigate new fictious charges and look to prosecute me for, you know, this is like unacceptable conduct and behaviour by the public authorities. And effectively this is placing me in a compromised situation where I am asked to now make submissions and arguments on a singular point regarding the cost analysis, where in reality, there is a joint enterprise commissioned by Bradford Council in order to cover up its systematic failures in adult care, which I’ve been looking to highlight…”.
“The council does not operate within the confines of the law, the legal system. They do as they please and then they buy our judges and the judiciary and the courts and everybody else in order to cover up this fraud that’s taking place…..the council have been working by commissioning the services of West Yorkshire Police, the Housing Association, the CPS to falsely criminally convict me….This is just completely a whitewashing exercise being committed by the council because they are trying to cover up their systemic failures in adult social care”.
The Appellant asserted that these various criminal and social care matters were directly connected to his FOIA request and to his attempt to expose what he described as wrongdoing by the local authority. He described these events as having catastrophic effects on his personal life and family.
Throughout this part of his submissions the appellant repeatedly expressed the view that he could not participate freely or properly in the Tribunal proceedings because, as he put it, his brother was being “held hostage” by the local authority. He said this made him feel under pressure and unable to advance his case without fear of repercussions.
The Appellant repeatedly stated that he felt “compromised” and questioned the Tribunal’s jurisdiction and impartiality. At approximately forty minutes, consistent with the indication given at the start of the hearing, the Tribunal intervened and offered the Appellant a short break, which he accepted.
Following the break, the Tribunal confirmed that a detailed note had been taken of everything said and asked the Appellant to clarify what he meant by feeling “compromised”, and whether he was seeking recusal, adjournment, or some other procedural outcome.
The Appellant stated that he was not seeking the Tribunal’s recusal, but that he believed the judicial system as a whole was compromised and that he could not receive a fair hearing. He said he was contesting the Tribunal’s jurisdiction. He stated “I have a loved one with a gun to their head by the other party, namely the council, metaphorically speaking“, therefore he felt it was very difficult for him to participate in the proceedings fully, “its analogous…if you have your child being held captive while you’re asked to participate in sham proceedings”. He stated he felt he was being denied an impartial hearing, “I believe that I’m contesting the jurisdictions of this tribunal to make a decision in these proceedings, given the serious allegations that I have made regarding the wider context. So what I am indicating is that….any decision that you make…..will be tainted with fraud….I’m being subjected to fraud”.
The Appellant further stated that his ability to receive a fair hearing was compromised on the background contextual circumstances, including where he had made serious allegations against the head of the courts and tribunal services, Nick Goodwin.
The Tribunal carefully explained the limited jurisdiction of the Tribunal and the procedural options available (noting the indication that he did not want the panel to recuse themselves): applying to withdraw the appeal, an application to adjourn, or proceeding to determination with a written decision. It explained it did not have the powers/legal jurisdiction to consider many of the issues raised.
The Appellant confirmed that he wished the Tribunal first to establish, as a factual matter, whether the local authority made direct payments to relatives, and then to adjourn any consideration of section 12. He also stated that an adjournment would allow him to seek legal advice.
The Tribunal explained that factual findings and application of section 12 would be considered together in a single decision and would not normally be divided across separate hearings. The Tribunal also explained the right of onward appeal.
The Tribunal read out the overriding objective from the Tribunal Procedure Rules and invited submissions on its application in light of the fact that an adjournment was being requested.
The Appellant’s Submissions on Adjournment (Following Reference to the Overriding Objective)
After the overriding objective contained in the Tribunal Procedure Rules was read out to him by the Tribunal, the Appellant made further submissions in support of his application to adjourn the hearing. He contended that an adjournment was necessary in order to secure a fair hearing and to comply with the overriding objective, which he submitted had not been met in the present case.
The Appellant submitted that one aspect of the overriding objective required the Tribunal to consider whether the parties had cooperated effectively so as to avoid the unnecessary use of Tribunal time. He asserted that directions had previously been issued requiring cooperation between the parties, but that such cooperation had not occurred. In his submission, this failure lay with the other parties and not with him, and it was therefore unjust, in his view, for the Tribunal to proceed without further case management.
The Appellant further relied on the element of the overriding objective concerned with ensuring that parties are able to participate fully in proceedings. He reiterated that he felt unable to participate effectively at that stage, describing himself as being in a “compromised” position. He linked that submission to the wider contextual matters he had outlined earlier in the hearing, including his concerns about his personal safety and that of his brother, and his belief that the local authority’s actions were exerting pressure upon him.
The Appellant submitted that fairness required the Tribunal to pause the proceedings because, in his view, the case raised issues of significant complexity which he did not feel able to address properly without further preparation. He stated that an adjournment would enable him to seek legal advice on how best to advance his case and to understand the procedural options available to him.
He argued that the fact that the appeal had been ongoing for a substantial period did not weigh against an adjournment. Rather, he submitted that the delays which had already occurred supported the granting of an adjournment, since, in his view, the processing of the appeal had already been prolonged and the additional delay caused by an adjournment would be justified to ensure fairness.
The Appellant also relied upon the aspect of the overriding objective concerning the effective use of the Tribunal’s expertise. He suggested that the Tribunal should consider directing the obtaining of expert evidence on the issue of direct payments, contending that this was not a matter that could properly be resolved without specialist knowledge of adult social care funding and regulation. In his submission, such expert evidence would assist the Tribunal in establishing the correct factual position before determining any legal exemptions.
He submitted that the Tribunal had the discretion to adjourn in order to give such directions and that doing so would be consistent with dealing with the case fairly and justly, rather than “rushing” to a determination. He rejected the suggestion that the appeal should proceed simply because it had been listed for hearing, arguing that fairness should take precedence over procedural finality.
The Appellant further returned to the point that, in his view, the Tribunal should first determine the factual issue concerning whether direct payments were paid to relatives before any consideration of section 12. He submitted that an adjournment would allow that issue to be properly isolated, addressed, and, if necessary, challenged by him before the appeal proceeded further.
He emphasised that he did not consider the adjournment application to be tactical or dilatory. On the contrary, he maintained that it was compelled by the seriousness of the issues he raised and by his belief that proceeding immediately would result in unfairness.
The Appellant also reiterated that his concerns were not limited to ordinary procedural disadvantage but arose from what he described as “background contextual circumstances”, including allegations he had made concerning senior figures within the justice system. He submitted that these circumstances undermined his confidence in the process and further justified pausing the proceedings.
The Appellant maintained that refusing an adjournment in the circumstances described, would, in his view, be inconsistent with the overriding objective and would deprive him of a fair opportunity to present his case.
In deciding the application, the Tribunal directed itself to the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, which the Tribunal read out during the hearing, namely to deal with cases fairly and justly, including dealing with cases proportionately, ensuring so far as practicable that parties are able to participate fully, using the Tribunal’s expertise effectively, and avoiding delay so far as compatible with proper consideration of the issues.
The Tribunal took a short adjournment to consider the Appellant’s submissions on adjournment in full. It refused the application. The Tribunal gave an oral decision in the hearing, confirming that full detailed reasons would follow in writing.
The Appellant’s ability to participate fully and fairly
The Tribunal recognised that the Appellant was unrepresented and had raised matters about adjustments at the outset of the hearing, including dyslexia. The Tribunal addressed adjustments proactively, offered to proceed at a pace suitable to the Appellant, and offered breaks. A break was in fact taken.
The Tribunal also took account of the Appellant’s repeated assertion that he felt “compromised” and his reliance upon what he described as “background contextual circumstances”.
However, having regard to what occurred in the hearing, the Tribunal was satisfied that the Appellant had been able to participate fully in the proceedings as they stood. He delivered extensive oral submissions; the Tribunal confirmed it had taken a detailed note of what he had said, and the Tribunal repeatedly sought clarification to ensure it understood precisely what procedural step he was inviting the Tribunal to take (including whether he sought recusal, withdrawal, or adjournment).
In those circumstances, the Tribunal was not persuaded that an adjournment was necessary in order to secure the Appellant’s effective participation or the fairness of the hearing.
Sufficiency of the evidence and the need (or otherwise) for further steps
A central feature of the Appellant’s application was his contention that the Tribunal should adjourn so that it could “establish the correct facts”, and/or obtain further material (including what he described as expert input) before proceeding further.
The Tribunal considered that submission but concluded that it was able to make the required findings of fact on the evidence already before it. We did not need ‘expert evidence’. In its oral ruling, the Tribunal stated that, based on the documentary evidence and oral submissions, it would be able to make the necessary findings of fact and then apply the law to reach a decision. Accordingly, the Tribunal was not satisfied that an adjournment was required in order to obtain further evidence or to enable the Tribunal to determine the issues within its jurisdiction.
We were also conscious that this was inconsistent with the request to split the hearing – the Appellant invited us to make a decision on the “primary” issue at this hearing (ie before any expert evidence had been obtained) and to adjourn the second part of the hearing only.
We also noted that no explanation was provided as to what further expert evidence may be required or if the Appellant wanted to rely on such evidence why it had not been provided previously (there had been repeated directions from the Tribunal that further evidence must be served by specified deadlines). Indeed, expert evidence had been provided on what the Appellant described as the “secondary” principle”, it was unclear why none was provided on the “primary” principle if it was felt this was required. As the Appellant had noted, there had been significant delay in this case and therefore a significant period of time to obtain any further evidence.
In relation to the assertion that the delay had been caused by the parties and their failure to cooperate with him, we took into account various factors:
It was correct that that the Appellant had written to the ICO asking them to arrange a telephone appointment in order to resolve matters/move matters forward in advance of the hearing. Initially he had not received a reply – this is less than satisfactory. However, the ICO did reply on 23 January 2026. The ICO emailed the Appellant stating he was not prepared to enter what would likely be lengthy telephone discussions regarding substantive issues. He maintained these were better addressed via written correspondence/ submissions from which he could review and take instructions as required. He invited the Appellant to put any matters in writing. The Appellant responded the same day, refusing to address issues in writing. He referred to the fact he was a civilian litigant in person and someone who suffers from dyslexia.
We noted that the Appellant himself had not cooperated or responded to the Tribunal’s directions (as detailed above). Indeed, he was explicitly told following his breach of the Tribunal’s directions, his case may be struck out for non-compliance.
We concluded that it would be disproportionate to adjourn in order to allow ‘further co-operation’; the ICO had made it’s position clear. It was unlikely a further adjournment would move matters forward. There had been adequate time to obtain any further evidence necessary. No ‘new’ issues had arisen during the course of the hearing.
The wish to obtain legal advice at this stage
The Appellant relied on the wish to obtain legal advice as a reason to adjourn. The Tribunal considered that submission carefully.
In its oral ruling, the Tribunal noted that no reasons had been provided as to why legal advice had not been sought before, in circumstances where the proceedings had been ongoing for a long time. The Tribunal was not persuaded that the wish to obtain legal advice at that stage, without more, justified adjourning the final hearing. Of note, no application had been made in advance of the hearing for this reason – nothing new had arisen during the course of the hearing to lead to this fresh application.
The request to “split” the hearing into stages
The Tribunal also considered the Appellant’s stated objective of separating the “first issue” (whether payments are made) from any subsequent consideration of section 12 at a second hearing.
The Tribunal explained in the hearing that findings of fact are made after the Tribunal has heard submissions and retired, and that the Tribunal would consider the issues within its jurisdiction in a single determination, addressing section 12 and section 16 only insofar as necessary depending on its findings.
The Tribunal therefore did not accept that it was appropriate or proportionate to adjourn for the purpose of fragmenting the determination into two hearings or two stages, particularly where the Tribunal was satisfied it could decide the matters on the evidence already available.
Need for adjournment due to the Appellant feeling “compromised”
The Tribunal also considered the Appellant’s submission that an adjournment was necessary in order for him to feel more comfortable, safer, or less at risk of negative repercussions arising from what he described as parallel proceedings and wider contextual matters. The Tribunal accepted that the Appellant genuinely held those concerns and did not treat them lightly.
However, the Tribunal noted that the Appellant did not identify any concrete timescale within which the parallel matters he relied upon might be resolved, nor any identifiable event upon which the adjourned hearing could sensibly be relisted with greater certainty or reassurance. The Tribunal further noted that the Appellant did not suggest that those matters were likely to resolve in the near future, or that their resolution was within the Tribunal’s control.
In those circumstances, the Tribunal concluded that adjourning the appeal for the purpose of awaiting greater reassurance or comfort would serve no practical purpose. An adjournment on that basis would risk postponing determination indefinitely, without any realistic prospect that the circumstances relied upon would materially change. The Tribunal considered that fairness does not require an adjournment where there is no identifiable point at which the asserted difficulty would abate.
The Tribunal therefore concluded that, while the Appellant’s concerns were sincerely expressed, the overriding objective did not support an adjournment founded on anticipated comfort, reassurance, or reduction of perceived risk at some unknown future point.
Conclusion on the Application to Adjourn
Drawing these matters together, and applying the overriding objective, the Tribunal refused the Appellant’s application to adjourn. The Tribunal was satisfied that it was in a position to make the necessary findings of fact on the basis of the documentary evidence and oral submissions already before it, and that an adjournment was not required in order to ensure fairness or effective participation. The Tribunal carefully considered the submissions advanced by the Appellant in support of the application, including the concerns articulated as to process and timing, and took those matters fully into account. The Tribunal nonetheless concluded that a further adjournment would be likely to result in additional unnecessary delay and further cost to the public purse, in circumstances where the proceedings had already been extended and where no further evidential or procedural step had been identified as being necessary for the fair determination of the appeal. Further, when considering proportionality, the Tribunal was satisfied that postponing determination would not materially add to the fairness of the process but would delay resolution of issues which could properly and fairly be determined on the evidence already before it.
Conclusion of the Hearing
The Tribunal invited any further submissions on the substantive issues. The Appellant indicated that he had nothing further to add.
The Tribunal explained that it would retire to consider the appeal and issue a written decision. We explained the Appellant’s right to seek permission to appeal to the Upper Tribunal on a point of law. The hearing then concluded.
DISCUSSION AND DETERMINATION
SCOPE OF THE HEARING AND SCOPE OF THE APPEAL
Before turning to the substantive issues, we consider it appropriate to delineate expressly the scope of this appeal and, correspondingly, the scope of the hearing.
This is an appeal under section 57 of the Freedom of Information Act 2000 against a decision notice issued by the Information Commissioner. The Tribunal’s jurisdiction is therefore confined to determining whether that decision notice is in accordance with the law.
In particular, the Tribunal is concerned with whether the Commissioner was entitled to conclude that the Council could rely on section 12(1) FOIA to refuse part 2 of the request (whether the council make payments directly to relatives is a relative consideration – if it does not, the Council cannot rely on section 12(1)), and whether the Commissioner was correct to conclude that the Council complied with its duty to provide advice and assistance under section 16 FOIA.
The Tribunal is not exercising a supervisory or advisory jurisdiction over the Council’s record-keeping systems, social care practices, financial administration, or policy choices. Nor is it the Tribunal’s role to determine whether the Council’s systems are optimal, efficient, or capable of being redesigned so as to facilitate compliance with this or other requests.
Consistent with established authority, the Tribunal must assess the application of section 12 by reference to how the public authority actually holds and retrieves information at the relevant time, not by reference to how the information might ideally be structured or what alternative systems might theoretically be devised.
The Tribunal is similarly not concerned with the wider merits or value of the Appellant’s request, save insofar as those considerations bear directly upon the statutory tests it is required to apply. Section 12 is not subject to a public interest balancing exercise, and the Tribunal does not therefore weigh the utility of disclosure against the burden on the authority.
The scope of the hearing is correspondingly limited. The purpose of the hearing is to enable the Tribunal to resolve the legal issues identified above on the basis of the evidence and submissions before it. It is not a fact-finding inquiry into matters collateral to the statutory framework, nor an exercise in auditing or testing the technical architecture of the Council’s internal systems.
Where submissions have been advanced that go beyond that scope, including submissions inviting the Tribunal to direct inspection of internal databases, or to adjudicate upon matters of conduct not bearing on the legality of the DN, we have considered those submissions carefully but have addressed them only insofar as they are necessary to determine whether the DN is in accordance with the law.
The Tribunal makes clear at the outset that much of what the Appellant raised in his oral and written submissions falls outside the Tribunal’s jurisdiction. The Tribunal’s task is a limited one. In particular, the Tribunal is concerned only with whether the Council was entitled to rely on section 12(1) FOIA to refuse part 2 of the request, and whether the Commissioner was correct to conclude that the Council complied with its duty to provide advice and assistance under section 16 FOIA. The Tribunal has no jurisdiction to determine, investigate, or make findings on the wider matters described by the Appellant, including issues relating to adult social care, safeguarding, criminal proceedings, alleged misconduct by public bodies or individuals, or any broader allegations of wrongdoing. Those matters, although described at length, cannot properly be resolved within the scope of this appeal and have therefore not been determinative of the Tribunal’s decision (as explained to him during the hearing).
Further, the Tribunal is concerned with what the Council can reasonably be expected to locate and retrieve in practice, not with what might exist in an ideal or abstract system.
Framing the scope in this way ensures that the appeal is determined in accordance with the statutory scheme established by FOIA, respects the limits of the Tribunal’s jurisdiction, and provides fairness and clarity to all parties as to the issues that fall to be decided.
Issue 1: Whether the Council makes Direct Payments for the care of relatives (Tribunal’s findings of fact and treatment of the Appellant’s challenge)
A central plank of the Appellant’s case was that the Council does not, and cannot lawfully, make Direct Payments for the care of relatives to the relatives of those requiring care, and that reliance on section 12 proceeds on a false factual premise. We have considered that submission with care.
In summary, the Appellant submitted that Direct Payments are made to the service user rather than to a carer; that carers (including relatives) are subject to an approval framework; that there is no proper reason for a public authority to record a relative’s name as a “payee” in a way that would then require extensive searching; and that Direct Payments are subject to audit and governance arrangements such that, if the Council did make payments for care by relatives, it ought to be able to evidence this readily. He also placed weight on perceived inconsistency between historic answers (the Council informed the Appellant in 2009 that it does not make direct care payments to individuals for the care of relatives) and the Council’s later position, contending that the Council had “deflected” when challenged and that the Commissioner failed to engage with this central factual point. These points were developed in the Appellant’s oral submissions and written documents.
We accept that the factual premise on which an estimate is made is capable, in principle, of being relevant to section 12. A cost estimate must be assessed by reference to the information held and the steps required to locate, retrieve and extract it. If an estimate proceeds on a premise which is demonstrably wrong—because, for example, the authority is wrong about whether any relevant information exists at all—that could affect whether reliance on section 12 was lawfully accepted.
However, two matters must be kept distinct. The first is the policy or legal permissibility of Direct Payments being used for care by relatives. The second is the FOIA question the Tribunal must decide in this appeal. This is an appeal under section 57 FOIA against a DN. Our role is to determine whether the Commissioner was entitled, on the material before him, to proceed on the factual basis he recorded, and to assess section 12 by reference to how the Council in fact holds and can retrieve the relevant information. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner. We are not exercising a supervisory jurisdiction over social care decision-making, audit compliance, governance arrangements, or the lawfulness of any particular payment arrangements. Those matters fall outside the scope of this appeal.
The DN (IC-255075-W1Q4, A2–A7) records that, during the Commissioner’s investigation, the Council confirmed that it does make such payments in some circumstances, and the Commissioner accepted that position. That is the factual premise on which the DN proceeds.
That premise was not confined to a single statement. It was carried through in the subsequent procedural history. Following Judge Buckley’s directions, the Council provided further submissions dated 5 March 2024 (page A40) explaining how it records Direct Payments and why it says it cannot identify the “relative carer” subset without manual review. The Commissioner then confirmed on 14 March 2024 (A38) that, in light of the Council’s response, he maintained the DN. Those materials reinforce that the case has proceeded consistently on the factual premise recorded in the DN.
The Appellant’s submission is, in substance, that this premise “cannot be true” because of the way Direct Payments ought to operate and the governance arrangements which, he says, must exist. We recognise the force of the submission as a matter of intuition. However, the Tribunal’s function is not to determine social care policy or to decide how Direct Payments ought to be recorded, audited, or administered. FOIA does not prescribe record-keeping standards, and section 12 is applied to the authority’s records as they are. Assertions about what the Council “ought” to know, or “must” be able to evidence as a matter of audit or good administration, do not, without more, establish that the Commissioner was obliged to reject the Council’s confirmation and proceed instead on the basis that no relevant information is held.
Nor do we accept that the Appellant’s point that Direct Payments are “paid to the service user, not the carer” answers the request or undermines the Commissioner’s approach. Even if that is a generally accurate description of the mechanism, it does not remove the need to identify the qualifying attribute “for the care of a relative” within the Council’s records. The request is framed as the maximum weekly amount paid under the Direct Payment scheme for the care of a relative. Answering it therefore requires identification of cases where Direct Payment funding is used for care provided by a relative. The Council’s evidence (accepted by the Commissioner) is that the relationship and “use” information needed to make that classification is not recorded in a standardised reportable format and must be established, if at all, by reviewing support plans and case notes. In other words, the identity of the formal payment recipient does not avoid the practical need to identify and verify the “relative care” subset from the way the Council’s information is actually held.
The Appellant also relied on what he described as historic inconsistency, including earlier answers, contending that the Council’s later position was a change of stance adopted to defeat the request. The Commissioner addressed the Appellant’s argument based on the 2009 answer, recording the Appellant’s contention and then proceeding on the basis of the Council’s then confirmation that it does make such payments in some circumstances and the Commissioner’s review of the Council’s website.
We have considered that submission. An inconsistency in earlier explanations may, depending on its nature and evidential footing, raise a question about how the authority has explained its records. But it is not determinative of the legality of reliance on section 12 in response to the request as made. Section 12 must be assessed on the basis of the authority’s current holdings and the steps required to identify and extract the requested information from those holdings. In this appeal, the Commissioner proceeded on the Council’s position as confirmed during his investigation and as maintained after further directed submissions. The question for the Tribunal is whether it was open to the Commissioner to proceed on that basis and whether the estimate, assessed on that basis, was lawfully accepted; it is not to resolve a wider historical narrative dispute unless it is shown, on cogent evidence, to undermine the Commissioner’s factual premise for section 12 purposes. On the material before us, it does not.
That is because section 12 is concerned with the present structure and retrievability of the authority’s records, rather than with whether earlier responses were incomplete, inaccurate, or framed on a different basis.
We also note that aspects of the Appellant’s argument invite the Tribunal to find fraud, collusion, or other serious wrongdoing as the explanation for the Council’s position and/or the Commissioner’s acceptance of it. Such allegations cannot be entertained in the absence of cogent evidence meeting the requisite threshold. Our task is to assess the legality and reasonableness of reliance on section 12, not to determine collateral allegations of misconduct.
Drawing these matters together, we accept that the Appellant advanced detailed submissions as to why, in his view, the Council’s position “cannot be true”. We have taken those submissions into account.
In doing so, we are not making an independent finding of fact as to whether the Council does or does not as a matter of social care practice or legality, make Direct Payments for the care of relatives; rather we are assessing whether it was open to the Commissioner, on the material before him, to proceed on the factual premise he recorded for the purposes of section 12 FOIA
On the material before us, we accept the Council’s evidence as to how the relevant Direct Payment records are structured and retrieved, for the purposes of section 12 FOIA. We are satisfied that the Commissioner was entitled to proceed on the factual premise recorded in the DN (IC-255075-W1Q4) and maintained thereafter, and to assess the Council’s section 12 estimate by reference to how the relevant information is in fact held and retrievable. We therefore proceed on that same premise for the purposes of the section 12 analysis, without determining wider disputes about the operation, desirability, or legality of Direct Payments as a social care mechanism.
In any event, even if the Appellant were correct that Direct Payments are ordinarily made to the service user, the request still requires identification of cases where payments relate to care by a relative, and the section 12 analysis would still turn on the retrievability of that classification from the Council’s records.
The Appellant’s email of 28 December 2023
On 28 December 2023 the Appellant emailed the Tribunal setting out further submissions in support of his opposition to strike out and his contention that the appeal should proceed to a full hearing. In that email he advanced a “primary question” which he said must be settled (whether the Council pays Direct Payments for the care of relatives), and alleged that the Council had changed its position after his June 2023 request, moving from “they do not pay relatives” to “they do pay relatives but cannot answer due to section 12”. He also relied on his personal experience as a family carer and made extensive allegations of dishonesty against the Council and the Commissioner. These themes are also reflected in his written submissions within the appeal bundle and in oral submissions.
We address the substance of those submissions as follows.
The Appellant’s email reiterated the ‘primary question’ addressed under Issue 1, namely whether the Council pays Direct Payments for the care of relatives and asserted that historic responses demonstrated a change of position. The Appellant submits that the Tribunal must first “settle” whether the Council pays Direct Payments for the care of relatives, contending that if it does not, the information “does not exist” and section 12 falls away.
We have considered this argument. Even if there were an inconsistency in historic responses, that does not of itself determine the legality of reliance on section 12 in 2023. Section 12 is applied to the request as made, on the basis of the authority’s current holdings and the steps required to identify and extract the information requested. In this appeal the Commissioner proceeded on the current position presented to him, and it is that position which the Tribunal must assess for reasonableness in section 12 terms, rather than attempting to resolve a historical narrative dispute which is not determinative of the statutory question.
The Appellant asserts that, notwithstanding the requester-blind nature of FOIA, the Council “knows who I am” and therefore could not maintain its earlier position.
The Tribunal accepts that FOIA is generally requester-blind in its operation. However, the legal consequence the Appellant seeks to draw does not follow. The fact that a public authority may know the identity of a requester does not, without cogent evidence, establish that the authority has acted improperly, still less that the estimate is unlawful. The section 12 question remains whether, applying the statutory framework, the estimate reflects costs the authority may reasonably expect to incur in permitted activities.
The email also relied on the Direct Payments statutory framework to argue that such payments could not lawfully be made. We have considered that submission, but it does not assist the Tribunal in determining this FOIA appeal. The Tribunal is not required to determine the proper construction and application of the social care direct payments regime in order to decide whether section 12 FOIA applies to this request. Nor is it necessary to decide whether any particular payments (or categories of payments) would be lawful under that regime. The operative question is whether the Commissioner was entitled to accept the Council’s description of how relevant information is held and whether the cost of determining and extracting the requested maximum exceeds the statutory limit.
As explained above, the Appellant’s statutory case commits a category error. It treats an argument about what the Direct Payments legislation may permit or prohibit as if it determined what records the Council holds and how easily they can be searched. Even if his interpretation of the social care regime were assumed to be correct, it does not follow that (a) the Council cannot operate arrangements of the kind described, (b) no records would exist relating to those arrangements, or (c) the “relative care” attribute would be captured in a structured, reportable way. The argument also rests on a false dilemma—either Direct Payments to relatives are lawful and therefore readily identifiable, or they are unlawful and therefore cannot exist—when section 12 exists precisely because information may be held in unstructured or inconsistent records and may require disproportionate work to locate and extract, regardless of how the underlying scheme ought ideally to operate.
FOIA is deliberately record-focused and content-neutral. It regulates access to information as held. Exemptions such as section 12 are directed to the practical mechanics of determining whether information is held in the required sense and locating, retrieving and extracting it within a statutory time/cost ceiling. FOIA does not require the Commissioner or Tribunal to adjudicate the legality of the administrative activity reflected in the records as a precondition to applying section 12; to do so would convert FOIA into a collateral forum for resolving contested public law disputes. The operative question remains whether, given how the authority’s records are actually structured, the requested information can be identified and extracted within the cost limit, not whether the underlying payments or policies would be lawful or desirable under another legislative scheme.
The Appellant places reliance on the absence of any express reference on the Council’s public website to Direct Payments being paid “for the care of relatives” and contends that this omission demonstrates that the Council’s explanation to the Commissioner is untrue.
We do not accept that inference. A public authority’s public-facing website is ordinarily intended to provide a high-level overview of policy and service provision, not an exhaustive or legally determinative statement of every circumstance in which a statutory scheme may operate. The absence of specific wording on a webpage does not, without more, establish that a particular category of payment does not exist, still less that an explanation given to the Commissioner during a statutory investigation is false or misleading, particularly where no inconsistency beyond silence has been demonstrated.
Accordingly, the Council’s website does not provide probative evidence that the Council’s explanation to the Commissioner was untrue, nor does it undermine the Commissioner’s conclusion that the cost of determining and extracting the information requested would exceed the statutory limit. The Appellant’s reliance on the website does not advance the FOIA issues the Tribunal is required to determine.
The Appellant submits that Direct Payments are annually audited, that decisions are taken by senior panels, and that meetings would be minuted, so that the “maximum” must be readily identifiable and section 12 should not apply.
We acknowledge the force of that submission as a matter of intuition. Section 12 FOIA necessarily proceeds on the assumption that public authorities may hold information in ways that are inefficient, unstructured, or sub-optimal, and the exemption exists precisely to address the practical consequences of that reality rather than to enforce standards of administrative perfection. However, the section 12 analysis turns on evidence of how the information is actually held and whether it can be located, retrieved and extracted within the permitted cost limit. Assertions about how systems “ought” to operate or what “must” exist as a matter of good administration cannot, without evidential support, displace the Council’s evidence (accepted by the Commissioner) about the steps required to identify the subset “for the care of a relative” and to extract the requested maximum.
Further, even where an authority has governance and audit processes, that does not necessarily mean that the specific classification required by this request (care provided by a relative) is captured in a structured, reportable way across the relevant dataset. The essence of the Council’s case (as recorded in the DN) is that relationship information is not recorded in a standardised reportable format and that manual review of support plans/case notes would be required to identify qualifying cases.
The Appellant relies on a press report concerning criminal proceedings in which he confirms he was convicted and submits that this FOIA request demonstrates that the Council has been “lying” about Direct Payments, such that it would follow that his conviction must have been wrong. He contends that he was convicted “for defrauding Direct Payments” which, he says, were not paid to him.
We reject that reasoning. As described in the report relied upon by the Appellant, the conviction did not turn on whether the Council paid the Appellant as a carer. Rather, the criminal findings concerned the handling and misuse of substantial sums paid by the Council for the care of service users, where the Appellant was acting in a position of trust (including under powers of attorney or similar fiduciary roles). On the Appellant’s own material, the funds were paid for care purposes and the wrongdoing lay in their subsequent diversion, misapplication, or disguise.
The Appellant’s argument therefore rests on a fundamental logical error. Even if it were correct that a local authority does not ordinarily pay carers or relatives directly, that would not entail that Direct Payments were not made, nor would it negate findings that funds paid for care were misused after receipt. Questions about to whom payments are formally made under social care arrangements are conceptually distinct from questions about what is done with those funds, which formed the basis of the criminal conviction.
In any event, this is a section 57 FOIA appeal. The Tribunal has no jurisdiction to determine, revisit or undermine criminal convictions, and nothing in this decision has any legal effect on them. The FOIA questions before us are confined to whether the Commissioner was entitled to accept the Council’s explanation of how information is held and whether the cost of identifying and extracting the requested maximum weekly payment would exceed the statutory limit.
Accordingly, the Appellant’s reliance on the press article does not merely fall outside the Tribunal’s jurisdiction; properly analysed, it does not support the inference he seeks to draw. It neither undermines the Commissioner’s reasoning under section 12 FOIA nor assists the Tribunal in determining this appeal.
In summary, the Appellant’s email advances a number of propositions which either (i) fall outside the scope of a section 57 FOIA appeal, (ii) are not supported by evidence sufficient to displace the Commissioner’s approach as set out in the decision notice, or (iii) do not bear directly on the statutory question whether the Council’s section 12 estimate was lawfully accepted. We therefore proceed to determine the appeal by applying the section 12 framework to the evidence and submissions properly before us.
The Tribunal heard extensive oral submissions from the Appellant including submissions repeating his ‘primary contention’ and raising wider allegations of fraud and unfairness. Those submissions did not introduce any new evidence or argument material to the determination of Issue 1 not already addressed, and for the reasons already set out, they do not persuade us that the Commissioner erred in law in upholding the Council’s reliance on section 12, nor do they undermine the conclusions we reach elsewhere in this decision.
Issue 2: Whether the Council made an estimate
We are satisfied that the Council made an estimate within the meaning of section 12. The refusal notice and internal review explicitly set out the estimated number of records, the per record review time, and the resulting hours.
The estimate was maintained and clarified during the Commissioner’s investigation and later directions process.
The precondition for reliance on section 12 is therefore satisfied.
Issue 2: Whether the estimate was reasonable
The estimate rests on the Council’s evidence that it does not routinely record the relationship between carers and those in receipt of care in a standardised reportable format, and that determining whether a service user is cared for by a relative and whether the relative is receiving a direct care payment requires manual review of support plans and care notes.
The Council explained, consistently across the refusal notice, internal review, and investigation correspondence, that relationship information may be in support plans or case notes but is not a mandatory recording requirement and is not routinely recorded in a way that supports easy reporting.
The Council further explained that even where a support plan exists, the person or people providing care may change over time and this would be identified by reviewing case notes, which extends the retrieval and extraction exercise beyond a single document type.
We are satisfied that the work described falls within Regulation 4(3) activities, in particular determining whether the information is held in the required sense and extracting it from support plans and case notes.
We have considered whether any element of the estimate reflects work the Council could not reasonably expect to incur, or work outside Regulation 4(3). We are not persuaded that it does. The estimate is directed to locating and extracting relationship and care-provider information from unstructured records where it exists.
On the Council’s evidence, the volume of cases (approximately 1300) is such that even a significant reduction in the assumed time per case would still exceed 18 hours. That is relevant to the overall reasonableness assessment once the scale of review required is accepted.
Issue 3: Whether the Commissioner erred in law in accepting the estimate
We approach Issue 3 by asking whether the Commissioner applied the correct legal test, considered relevant considerations, ignored irrelevant ones, and reached a conclusion open to him on the material before him.
The decision notice correctly identified the statutory framework under section 12(1), the applicable 18-hour limit, and the nature of the estimate required.
The Commissioner addressed the Appellant’s argument based on the 2009 answer, recording the Appellant’s contention and then proceeding on the basis of the Council’s then confirmation that it does make such payments in some circumstances and the Commissioner’s review of the Council’s website.
The Commissioner’s investigation did not stop at the Council’s initial refusal. The Commissioner sought clarification as to what was held, what was not routinely recorded, why a review of approximately 1300 cases was said to be necessary, and the basis for the time estimate.
The Commissioner further sought clarification by telephone, resulting in the call note of 17 October 2023. That clarification is significant because it confirms the practical nature and scope of the work the Council said it would have to undertake to determine whether the requested information was held and to extract it.
In the DN, the Commissioner recorded that the Council’s 15 minute per file figure was based on sampling and treated it as reasonable, noting additionally that even one minute per file would exceed the appropriate limit once the review population of around 1300 cases is accepted.
We are satisfied that this was a rational approach open to the Commissioner: where the scale of the review is accepted, the conclusion that the limit would be exceeded on any plausible per file time assumption is a relevant consideration in assessing whether section 12 applies.
Once Dr Kirkham articulated a specific alternative method of searching, the Commissioner did not decline to engage with it. The Commissioner recognised that an alternative method might in principle be feasible and sought the Council’s response before maintaining his position. That demonstrates active engagement with the strongest form of the Appellant’s case and is consistent with careful application of the section 12 framework.
Issue 3 is therefore resolved against the Appellant.
Issue 4: the alternative search methodology and Dr Kirkham’s further response
Two-stage logic of the alternative search proposal
Dr Kirkham’s alternative search methodology is founded on the observation that the request is for a maximum value. The methodology can succeed only if two conditions are met: first, that cases can be ranked by a variable that is a reliable proxy for “paid for the care of a relative”; and secondly, that the “relative care” attribute can be verified quickly and reliably without substantial manual review. Our conclusion turns principally on the second condition.
The critical question is therefore whether the qualifying attribute embedded in the request, namely “for the care of a relative”, can be identified and verified without undertaking the kind of file-level inquiry the Council says is required.
The Council’s response and its implications for feasibility
The Council responded that it can identify who receives a Direct Payment and how much it is for, but that the data on how the Direct Payment is used and the person or agency providing support is not recorded at that point.
The Council stated that relationship is not recorded in a digitally extractable form and may not be explicitly recorded within support plans, and that Direct Payments can be used in multiple ways, meaning that the highest award does not necessarily identify the maximum paid for care by a relative.
The Council concluded that it would need to review all 1300 cases to answer accurately and that there would remain a risk of missing cases because recipients are not obliged to notify changes in care provider arrangements.
Dr Kirkham’s further submissions and our response
We have considered carefully the further submissions of Dr R Kirkham dated 15 March 2024 (A42-43). We are grateful for the assistance those submissions provide in articulating the Appellant’s case at its strongest and focusing attention on whether alternative methodologies might materially reduce the work required.
Our task remains confined: whether, on the material before the Commissioner (and the further material obtained pursuant to Tribunal directions), the Council’s estimate reflects costs it may reasonably expect to incur in carrying out permitted Regulation 4(3) activities, assessed by reference to how the Council actually holds and can retrieve the relevant information.
Dr Kirkham expresses concern that the Council’s March 2024 explanation contains surprising and unevidenced assertions about what they are unable to do or find and suggests the Council has misunderstood the request.
We do not consider the Council’s March 2024 response in isolation. The Council’s account is materially consistent with its earlier explanations in the internal review and in the responses given during the Commissioner’s investigation, including the clarifying call note. That continuity is relevant to the weight to be attached in a section 12 assessment.
We are not persuaded that the Council’s position is best characterised as a misunderstanding of the request. Rather, it reflects the Council’s evidence that it cannot identify the “relative care” criterion in a reportable or extractable way and must verify it from support plans and case notes.
Dr Kirkham is correct that FOIA concerns what a public authority holds and is not confined to a particular system. However, the Council’s evidence is directed to its holdings as a whole, namely that the relevant relationship and usage information is found, if at all, within support plans and case notes and is not held in a standardised reportable format. On the material before us, no alternative repository has been identified which reliably contains the “relative care” classification in an extractable form.
Dr Kirkham submits that because payments are made via BACS the Council must have payee names, bank accounts, and payment amounts. Even if transactional payment data exists, we are unable to conclude on the evidence before us that such data would answer this request without further work, because the request depends on establishing relationship and the relevant use of the Direct Payment, matters the Council says are not captured in a reportable format and require file-level verification.
Dr Kirkham suggests that the Council’s account implies deficiencies in how payments are recorded and categorised. We do not read the Council’s evidence as denying its ability to identify Direct Payment recipients and award amounts. The asserted difficulty concerns identifying the “relative care” criterion and how Direct Payment funds are used. Section 12 requires us to assess costs by reference to the records as they exist, rather than by reference to best practice.
Dr Kirkham invites us to attach limited weight to the Council’s explanation given the absence of technical exhibits, he asserts the claims are “unevidenced bald assertions”. We accept that technical detail can in some cases be helpful. However, here the Council’s account is materially consistent across multiple stages, including the detailed investigation responses and the call note clarification. In our judgment, that provides a sufficiently coherent evidential basis for accepting that manual review of support plans and case notes would be required to identify qualifying cases.
Dr Kirkham submits that if the Council knows who receives a Direct Payment and how much is paid, it knows the answer, and suggests that mixed use considerations are irrelevant. We are not persuaded. The request is framed by reference to “care of a relative”. The Council’s evidence is that it cannot identify that qualifying criterion from payment value alone and that Direct Payments may be used in multiple ways. Those considerations bear directly on whether ranking by award value can identify the true maximum “for the care of a relative” without substantial verification.
Dr Kirkham questions the Council’s statement that relationship information is not digitally extractable and suggests that what is not straightforward for one officer may be achievable by someone with specialist expertise. The Council’s evidence, read fairly, is that relationship information is not captured in a standardised reportable format and may not be explicitly recorded. We are unable to conclude, on the material before us, that the information could reliably be extracted by automated means within the cost limit such that the Council’s estimate is unreasonable.
Dr Kirkham suggests that only a small number of files should need review once the likely maximum is identified and that an email search would “presumably” establish relationship or payee information if not apparent from the file. We are not satisfied that this is established on the evidence before us. The number of files requiring review depends on frequency of qualifying cases and the effort required to verify the “relative care” criterion. Further, there is no evidential basis demonstrating that email searches would provide a reliable and complete answer during the relevant period, particularly given the Council’s evidence that care arrangements may change without notification.
Dr Kirkham submits that mixed use and changes over time are not relevant to what was requested. We respectfully disagree. Those matters go to the central question of whether ranking by award value can reliably identify the maximum paid for care by a relative without a wider verification exercise.
Dr Kirkham’s submissions identify sources that might exist within the Council’s wider holdings. However, on the evidence before us, we cannot conclude that those sources contain the relationship attribute in a way that would allow the request to be answered within the cost limit without the manual verification the Council describes.
Joinder of the Council and proposed inspection of systems
Dr Kirkham further submits that the Council ought to be joined formally to these proceedings in order to “manage their conduct”, contending that the costs implications of the Council remaining a “passenger” or “unofficial party” are unfair, and that joinder under rule 10 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 is therefore required. He also submits that we will need to direct that he be permitted to inspect the Council’s systems remotely in order to understand how they operate and how the asserted limitations have arisen.
We have considered these submissions with care. They raise matters of procedure and case management rather than issues going directly to the substantive statutory test under section 12 FOIA. Nevertheless, given the way in which they are advanced and their potential significance, it is appropriate to address them expressly and in some detail.
Joinder of the Council
We recognise that the Council is the public authority which holds, and would be required to search for, the information requested, and that its record-keeping practices underpin the estimate relied upon. In that sense, the Council’s role is central to the factual background of the appeal.
However, the statutory structure of FOIA is clear. An appeal under section 57 lies against the Information Commissioner, not against the public authority. Our task is to determine whether the DN is in accordance with the law. It is not to adjudicate directly upon the conduct of the public authority, nor to resolve wider disputes between the requester and the authority.
Rule 10 confers a discretionary power to join a person as a party where it is necessary in order to deal with the proceedings fairly and justly. It does not create a presumption of joinder, nor does it require joinder merely because a public authority’s systems or practices are relevant to the appeal. In reaching this conclusion we have had regard to the overriding objective of dealing with cases fairly and justly, including proportionality and avoiding unnecessary formality.
In considering whether joinder is necessary, we ask whether the absence of joinder would prevent us from properly determining the appeal, give rise to procedural unfairness, or impede the effective resolution of the issues that fall within our jurisdiction.
We are satisfied that none of those concerns arises. The Council has provided explanations at each material stage: in the refusal notice, at internal review, during the Commissioner’s section 50 investigation (including detailed written responses and a clarifying telephone call), and again in response to our directions specifically addressing the alternative search methodology advanced by Dr Kirkham.
We have therefore had the benefit of a full and consistent account of the Council’s position. The absence of formal joinder has not restricted our ability to scrutinise that position, nor has it impeded the Appellant’s ability, with Dr Kirkham’s assistance, to challenge it.
We are also not persuaded that joinder is required in order to “manage” the Council’s conduct. There is no finding, nor any material before us, suggesting that the Council has failed to comply with directions, acted obstructively, or otherwise conducted itself in a manner which would require formal party status in order to ensure procedural fairness or discipline.
So far as costs are concerned, rule 10 governs our discretion to make cost orders, but it does not of itself provide a rationale for joinder. Joinder for the purpose of potential future costs arguments would be an exceptional step and is not justified in the absence of a demonstrated necessity to do so in order to dispose of the appeal fairly.
While we understand why Dr Kirkham raises the issue of joinder, we are satisfied that the appeal can properly, fairly, and lawfully be determined without the Council being joined as a respondent. For completeness, we note that the Council were invited to consider if they wished to apply to join the appeal, following Judge Buckley’s order, dated 16 January 2024. They chose not to do so. They were given permission to provide submissions, which they did.
Proposed inspection of the Council’s systems
We turn then to the submission that we should direct that Dr Kirkham be permitted to inspect the Council’s systems remotely in order to understand how they operate and how the asserted limitations have arisen.
We accept that this submission is motivated by a concern to test, in a practical way, whether the Council’s explanation of its systems and record-keeping constraints is well-founded. It is therefore not an unreasonable line of inquiry in abstract terms.
However, our jurisdiction in a section 12 FOIA appeal does not extend to conducting, or permitting, a forensic audit of a public authority’s IT systems. Nor are we required to satisfy ourselves that the authority’s systems represent best practice or that alternative technical solutions might conceivably be available.
The legal question remains whether the authority has made a reasonable estimate of the costs it would expect to incur in complying with the request, assessed by reference to how the information is actually held and can be retrieved in practice.
In this case, the Council has provided a coherent explanation of how relevant information is and is not recorded, why relationship information is not held in a standardised reportable format, and why determining whether a Direct Payment is made for the care of a relative requires review of support plans and case notes. That explanation has been consistent over time and has been subject to scrutiny by the Commissioner. We accept it as a finding of fact.
We are therefore satisfied that we have sufficient material to determine the appeal without directing inspection of the Council’s systems. Directing such an inspection would be an exceptional procedural step and would risk shifting the focus of the proceedings away from the statutory inquiry mandated by section 12 and into a broader examination of internal systems design, which FOIA does not require.
We also note that it is not clear how any such inspection could be framed so as to be proportionate, nor how it would resolve the central difficulty identified by the Council, namely that information about the relationship between carer and service user may not be recorded explicitly at all, or may change over time without notification.
In those circumstances, while we understand why Dr Kirkham advances this proposal, we do not consider that inspection of the Council’s systems is necessary or appropriate in order to resolve this appeal fairly and lawfully.
Conclusion on procedural submissions
Drawing these points together, we are satisfied that the absence of joinder of the Council, and the absence of any direction for inspection of its systems, do not give rise to procedural unfairness.
We are not satisfied that the absence of joinder or inspection has caused material prejudice to the Appellant’s ability to advance his case, which has been fully developed in writing, including through Dr Kirkham’s detailed submissions.
For these reasons, Dr Kirkham’s procedural submissions do not alter the outcome of the appeal.
E. Conclusion on Issue 4
We emphasise that we have reached our conclusion on Issue 4 having considered the alternative methodology and the procedural proposals on their merits. Our conclusion does not depend on rejecting those submissions in principle, but on our assessment that, on the evidence before us, the Council would still reasonably expect to incur costs well in excess of the statutory limit in order to identify and verify qualifying cases.
Dr Kirkham’s alternative search methodology is logically framed, but it depends on the assumption that the qualifying criterion “for the care of a relative” can be identified quickly and reliably from the Council’s records.
On the Council’s consistent evidence, that criterion is not held in an extractable format and requires manual examination of support plans and case notes, potentially across a large number of cases. We accept this as a finding of fact. Dr Kirkham’s submissions do not provide an evidential basis on which we can conclude that the Council could comply within the cost limit or that the Council’s estimate includes costs it could not reasonably expect to incur.
Issue 4 is therefore determined against the Appellant.
Issue 5: section 16 advice and assistance
Section 16 FOIA requires a public authority to provide advice and assistance so far as it is reasonable to expect it to do so.
The Commissioner concluded that, although advice and assistance was not provided in the initial response and internal review response, there was no identifiable advice that would have enabled the request to be refined so as to fall within the cost limit, and therefore the Council met its section 16 obligations.
We agree. We are not satisfied that there is any realistic refinement that would avoid the threshold problem, namely identifying which Direct Payment cases involve “care by a relative”, given the Council’s evidence that this is not recorded in a reportable field and requires manual verification from support plans and case notes.
CONCLUSION
For the reasons given above, we conclude that the decision notice is in accordance with the law.
The appeal is dismissed.
COSTS
We have considered whether to make any order for costs under rule 10 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
Rule 10 permits the Tribunal to make an order for costs only where a party has acted unreasonably in bringing, defending or conducting the proceedings, or in the other limited circumstances specified by the Rules.
In addressing costs, we have had regard in particular to the procedural history of the appeal following the decision and directions of Judge Buckley dated 16 January 2024.
In his evidence/submissions dated 23 December 2023, Dr Kirkham advanced arguments to the effect that the appeal should be upheld and that costs should be awarded against the Commissioner. He also articulated a proposed basis for such an order under rule 10.
In her strike-out decision, Judge Buckley made clear that Dr Kirkham was not acting as the Appellant’s representative. She accordingly directed that, if the Appellant wished to pursue any application for costs relying on Dr Kirkham’s submissions, he must confirm expressly whether he wished to make such an application. That direction was formalised in the case management order dated 16 January 2024.
In response to that direction, the Appellant wrote to the Tribunal on 26 January 2024 (C78). In that email, he stated that he was “confirming in the affirmative” in response to Judge Buckley’s direction, but also explained that he did “not exactly know what further is being asked” of him and that he was “awaiting further direction from the Judge of what I need to do to comply with the direction under rule 4(3)”.
That response confirmed that the Appellant did not disclaim reliance on Dr Kirkham’s submissions. However, it did not particularise or formulate a substantive application for costs under rule 10.
In light of the ambiguity of the Appellant’s response, the Tribunal administration invited the Appellant to complete Form GRC5 so that any application for costs could be properly formulated and responded to. The Commissioner indicated on 7 February 2024 that he would not respond on costs unless and until such an application was made.
Judge Muzaffer directed on 26 September 2025 “If the Appellant wishes to make any application pursuant to the submission of Dr R. Kirkham dated 15 March 2024, he must do so on Form GRC5 by Friday 17 October 2025”.
No completed Form GRC5 or other properly formulated application for costs was subsequently made. The proceedings thereafter progressed on the substantive issues identified in Judge Buckley’s directions, namely the alternative search methodology and the application of section 12 FOIA.
In those circumstances, we are not satisfied that there is a properly constituted costs application before us which requires determination.
In any event, and for completeness, we are not satisfied that any party has acted unreasonably in bringing, defending or conducting these proceedings. The appeal continued after Judge Buckley identified an arguable issue, and it was pursued and defended thereafter in accordance with the Tribunal’s directions.
Accordingly, whether on the basis that no properly formulated application for costs was made following Judge Buckley’s directions, or on the basis that the rule 10 threshold is not met, we make no order as to costs.
Signed Date:
Judge Kiai 15 May 2026