Thomas Allum v Home Ownership Services, Lewisham Council

Background

1. The background to these proceedings is set out in our decision and reasons dated 28 May 2025 and is not repeated here.

2. Subject to a number of redactions, the Respondent has disclosed information pursuant to the Substituted Decision Notice described below. In our decision and reasons dated 28 May 2025 we found that a number of redactions made by the Respondent fell outside of the scope of the Substituted Decision Notice. This was because the redacted information could properly be considered irrelevant or as personal data pursuant to section 40 of FOIA. However, there were a number of redactions where the Respondent had failed to properly particularise why the redacted information identified was outside of scope or irrelevant as asserted by the Respondent.

3. The relevant redactions are: a. The redactions (other than those in relation to section 40) at page 2 of the Emails February to March 2020 V2 b. The redactions (other than those in relation to section 40) at page 4 of the Emails February to March 2020 V2 c. Redaction at pages 6 and 7 of the Emails September to October 2020 (also included at pages 357 and 358 of the Open Bundle). In relation, to these redactions the Respondent had also failed to address the Applicant’s written submissions. In particular, paragraphs 21 to 27 of the Applicant’s written submissions dated 28 August 2024.

4. Accordingly, the Tribunal afforded the Respondent a further opportunity to fully particularise, its rationale for redacting this information before making a final decision on the contempt application. Case management directions were issued for the Respondent to make closed submissions.

5. The information at paragraph 3(c) described above has now been disclosed to the Appellant subject to redactions in relation to personal data .

6. The parties have consented to a determination on the papers. We are satisfied that we can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. Documents

7. The following documents were before the Tribunal and have been considered: a. An Open Bundle (386 PDF pages); b. Closed materials to include unredacted copies of the documents or information sent to the Applicant on 11 March 2024 and a Schedule of Redactions as per the Case Management Directions dated 2 May 2024. c. The Respondent’s Further Closed submissions dated 15 July 2025 together with Annex 1 (copy email dated 30 September 2020 timed at 17:32 redacted to remove personal information) Legal Framework

8. The powers of the Tribunal are to be found in sections 61(3) and (4) of FOIA 2000 – (3) Subsection (4) applies where— (a) a person does something, or fails to do something, in relation to proceedings before the First-tier Tribunal on an appeal under those provisions, and (b) if those proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court. (4) The First-tier Tribunal may certify the offence to the Upper Tribunal.

9. The 2009 Rules provide details of the procedure to be followed. The procedures were not contentious in this application but are contained in Rule 7A.

10. The power of contempt is to be considered amongst the other provisions of FOIA 2000 namely: (i) The power of the Information Commissioner under section 50 to make a decision upon application; (ii) The power of the Information Commissioner under sections 52 and 54 to enforce its own decision; and (iii) The creation of a criminal offence under section 77 of altering etc information with the intent to prevent disclosure.

11. The power to certify an act or omission as a contempt has two distinct phases. Firstly, the Tribunal will consider whether the Respondent has committed an act or omission that would amount to a contempt and secondly, whether the First Tier Tribunal should exercise its discretion to certify the contempt to the Upper Tribunal.

12. In Rotherham Metropolitan Borough Council v Harron & The Information Commissioner's Office and Harron v Rotherham Metropolitan Borough Council & The Information Commissioner's Office : [2023] UKUT 22 (AAC) [53 & 54] Farbey J said: “… There is no power to compel a public authority to comply with a substituted decision notice. In the context of para 8 of Schedule 6 to the 1998 Act, the UT has held that there is a power to punish for not doing so, although that power may operate as an incentive to comply (Information Commissioner v Moss and Royal Borough of Kingston Upon Thames [2020] UKUT 174 (AAC) , para 1). I see no reason to take a different view. ” “54. The principle that proceedings for contempt of court are intended to uphold the authority of the court and to make certain that its orders are obeyed is longstanding (for a recent restatement, see JS (by her litigation friend KS) v Cardiff City Council [2022] EWHC 707 (Admin) , para 55). A person who breaches a court order, whether interim or final, in civil proceedings may be found to have committed a civil contempt. Given the nature and importance of the rights which Parliament has entrusted twenty-first century Tribunals to determine, the public interest which the law of contempt seeks to uphold – adherence to orders made by judges – is as important to the administration of justice in Tribunals as it is in the courts. There is no sound reason of principle or policy to consider that any different approach to the law of contempt should apply in Tribunals whose decisions fall equally to be respected and complied with.”

13. In that case, Mrs Justice Farbey also restated the principles elucidated by the Court of Appeal in Navigator Equities Limited v Deripaska [2021] EWCA Civ 179 9, para 82 as they apply to contempt: “The following relevant general propositions of law in relation to civil contempt are well-established: i) The bringing of a committal application is an appropriate and legitimate means, not only of seeking enforcement of an order or undertaking, but also (or alternatively) of drawing to the court’s attention a serious (rather than purely technical) contempt. Thus a committal application can properly be brought in respect of past (and irremediable) breaches; ii) A committal application must be proportionate (by reference to the gravity of the conduct alleged) and brought for legitimate ends. It must not be pursued for improper collateral purpose; iii) Breach of an undertaking given to the court will be a contempt: an undertaking to the court represents a solemn commitment to the court and may be enforced by an order for committal. Breach of a court undertaking is always serious, because it undermines the administration of justice; iv) The meaning and effect of an undertaking are to be construed strictly, as with an injunction. It is appropriate to have regard to the background available to both parties at the time of the undertaking when construing its terms. There is a need to pay regard to the mischief sought to be prevented by the order or undertaking; v) It is generally no defence that the order disobeyed (or the undertaking breached) should not have been made or accepted vi) Orders and undertakings must be complied with even if compliance is burdensome, inconvenient and expensive. If there is any obstacle to compliance, the proper course is to apply to have the order or undertaking set aside or varied; vii) In order to establish contempt, it need not be demonstrated that the contemnor intended to breach an order or undertaking and/or believed that the conduct in question constituted a breach. Rather it must be shown that the contemnor deliberately intended to commit the act or omission in question. Motive is irrelevant; viii) Contempt proceedings are not intended as a means of securing civil compensation; ix) For a breach of order or undertaking to be established, it must be shown that the terms of the order or undertaking are clear and unambiguous; that the Respondent had proper notice; and that the breach is clear (by reference to the terms of the order or undertaking).”

14. In the case of Information Commissioner v Moss [2020] UKUT 174 (AAC) , the Upper Tribunal concluded that, noting the enforcement powers that already existed under Rules 7 and 8 of the 2009 Rules, that not much else is left for section 61 of FOIA to deal with, apart from non-compliance with a substantive decision of the First Tier Tribunal. Discussion and Conclusions

15. In relation to the redactions identified at paragraph 3(c) the Respondent maintains that the email remains outside of the scope of the Substituted Decision Notice but nonetheless has disclosed the redacted information, subject to minor redactions to protect personal data. A copy of the disclosed email has been produced. On the basis of the email produced we are satisfied that the redacted information has been provided to the Appellant subject only to minor redactions required in relation to personal data which the Respondent was entitled to make. Accordingly, we are satisfied that in relation to the redacted information described at paragraph 3(c) above, the request is satisfied.

14. We now turn to consider the redactions detailed at paragraphs 3 (a) – (b) Above. In this regard it is important to consider the scope of the request and the Substituted Decision Notice.

15. On 16 December 2021, the Applicant made the following request to the Respondent: “ Under the Freedom of Information Act I respectfully request copies of any contracts or agreements between Lewisham Homes and Ace Security Services, from 2017. I also request copies of any correspondence between Ace Security Services and Lewisham Homes relating to these agreements/contracts, their continuance or termination, either before or after 2017”.

16. In a Decision and Reasons promulgated on 1 February 2024, the Tribunal allowed the Applicant’s appeal against the decision of the Commissioner and made a Substituted Decision Notice. The Substituted Decision Notice included the following requirement: Lewisham Homes Limited must disclose the requested information, subject to any applicable redactions of personal data pursuant to section 40 of the Freedom of Information Act 2000 . For the avoidance of doubt, the information to be disclosed must include details of all relevant contracts and correspondence from (and including) 2017 onwards (and should not be limited to 2017 only).

17. Turning to the redactions described at paragraph 3(a) above (Page 2 of the emails February to March 2020 V2). In closed submissions, the Respondent asserts that the redacted information would not have any bearing on the contracts. The Respondent asserts that this information is not relevant. In particular, it does not relate to the continuance or termination of the contracts/agreements.

18. In our view this is too narrow an interpretation of the request and Substituted Decision Notice. The request encompasses information that relates to the contracts and arrangements and is not limited to information relating to the continuance or termination of such contracts or agreements. In our judgment, when the redacted information is read within the context of the other emails, a proper interpretation is that the redacted information relates to the operational arrangements of Ace Security Services and consequent implications for Lewisham Homes Limited. In addition, when the redacted information is considered with the disclosed information, in our judgment, the redacted information was provided by Ace Security Services to Lewisham Homes Limited during the course and within the context of agreements/contracts being finalised and informed these discussions/negotiations. Accordingly in our view the redacted information is correspondence that relates to agreements/contracts between Ace Security Services and Lewisham Homes and falls within the scope of the request and the Substituted Decision Notice. We do however accept that the information referred to at [9] of the closed submissions is personal data and should be redacted.

19. In relation to the redactions described at paragraph 3(b) above (Page 4 of the emails February to March 2020 V2) the Respondent asserts that the same principles apply. For the same reasons as set out above, in our judgment the redacted information is correspondence that relates to agreements/contracts between Ace Security Services and Lewisham Homes. This redacted information falls within the scope of the request and the substituted decision notice.

20. Accordingly, in our judgement the Respondent has failed to disclose information that falls within the scope of the request and substituted decision notice. However, the test for contempt is more stringent than merely a failure to disclose. Within contempt proceedings it must be shown that the terms of the order are clear and unambiguous. In our judgement, there is scope for ambiguity in the wording of the Substituted Decision notice. The use of the word “relevant” within the Substituted decision notice requires interpretation as to what falls within the scope of the substituted decision notice. The ambiguity is such that the Applicant has failed to demonstrate that non-disclosure arising out of the interpretation of the word “relevant” and the consequent scope of the Substituted Decision Notice amounts to contempt.

21. Even if we were to accept that the Respondent’s conduct amounted to contempt we would not exercise our discretion to certify contempt to the Upper Tribunal. We accept that there is a considerable public interest in ensuring that decisions of the Tribunal are complied with. A dherence to Tribunal decisions is important to both the efficient administration of justice and upholding the authority of the Tribunal. This weighs in favour of certification. However, we accept that, albeit at times in a less than optimal manner, the Respondent has engaged with the Substituted Decision Notice by disclosing further information pursuant to it and making a further disclosure following our decision dated 28 May 2025. As such the gravity of the conduct alleged is at the lower end of the spectrum. The mischief sought to be prevented by the Substituted Decision Notice is also relevant. The Substituted Decision Notice intends to ensure that disclosable information is disclosed. To a significant extent the Respondent has done just that. The Respondent’s conduct to date is indicative that, now that the scope of the Substituted Decision Notice has been clarified, the Respondent will disclose the relevant information. Accordingly, notwithstanding the significant public interest in compliance, having regard to the gravity of the conduct and mischief to be prevented, it is in our judgment not proportionate nor appropriate to exercise our discretion to certify contempt .

22. The application to certify an offence of contempt is refused. However, with the exception of the information referred to at [9] of the further closed submissions dated 15 July 2025, the information set out at paragraphs 3(a) & (b) above falls within the scope of the Substituted Decision Notice. The Respondent shall provide this information to the Appellant within 35 days of the date of this Decision. Signed G Wilson Date: 12 December 2025 Judge of the First tier Tribunal