Vexatious Potto
- – an “In My View” article by NIGEL WARD, investigating the wild tactics of self-denial and point-blank refusal to acknowledge the difficult truths that continue to blight the hopelessly deficient and unlawful Potto Parish Council, arguably the worst small Council in the UK. Readers may wish to re-read Part 1 (here), in which a Potto resident successfully appealed to overturn Potto Council’s and the ICO Solicitor’s false assertions of “vexatious” behaviour which were recorded in an ICO Decision Notice that was described by Tribunal Judge Goodman as “not in accordance with the law”.
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In response to an Appeal by a Potto resident, the First Tier Tribunal issued its unanimous Decision and Substitute Decision Notice on 7th June 2023:
It is clear. even to the layman, that the Judge required Potto Council to provide a fresh response within 35 days (i.e. before 12 July 2023).
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However, these 35 days (ending 12th July) came and went – and Potto Parish Council failed to respond (although, as we shall see, the Council wrote a 7-page letter of appeal and apparently backdated it, to 12 July 2023). I say ‘apparently backdated’ because the opening line of the Council’s letter states “Further to your email dated 22nd July” and therefore the genuine and original date of the letter remains unknown.
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What is by no means unknown is that Potto Parish Council failed to comply with the Substitute Decision Notice; an act of defiance which can quite properly be described as ‘Contempt of Court’ – serious stuff indeed.
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As an aside, I have established that Potto Parish Council was made aware by the ICO eight months earlier (on 3rd October 2022) that the Potto resident’s appeal (against Potto Parish Council’s “vexatious” assertions about the resident’s conduct) was being handled by the Tribunal; see email below:
However, this rather important item of ICO correspondence was apparently concealed from Councillors by the Clerk; it was not recorded as an Item of business on the October 2022 Agenda, nor was it recorded as correspondence within this Agenda. Markedly, this Agenda for the meeting scheduled for 19th October 2022 is dated 10th September 2022 (nearly six weeks earlier). The Potto Clerk’s routine lack of diligence is again clearly evident.
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I raise this point now to demonstrate that Potto Parish Council had been aware of the Potto resident’s Appeal for over eight months when the Tribunal’s Clerk sent a copy of the unanimous Tribunal Decision (as issued by Judge GOODMAN, upholding the resident’s Appeal) to Parties on 7th June 2023.
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This email stated:
EA/2022/0266; [REDACTED] vs Information Commissioner
Dear Parties,
I attach a copy of the Tribunal’s decision. This decision may be posted on the tribunal’s public web site in due course. Subject to the information below, this decision is final and binding on all parties. It is not possible to re-hear the case.
DECISION NOTES
Corrections
If the decision contains a clerical mistake or other accidental slip or omission (for example, the Tribunal may have written “2018” when it intended to say “2019”), this can be corrected.
Error of Law
A party may apply to this Tribunal (i.e. the First-tier Tribunal) for permission to appeal to the Upper Tribunal on a point of law that arises from the decision.
An application for permission to appeal must
Be sent to these offices,
Be in writing,
Identify the alleged error of law in the decision and
State what result the party expects.
The time limit for applying to set aside a decision or for permission to appeal is 28 days after the Tribunal sends the decision. An application made outside this time limit must include a request for an extension of time and the reason why it was not provided in time. The Tribunal will then consider whether the application should be admitted.
These details each appear to me to be perfectly correct.
However, as now seems to be Potto Parish Council’s routine malpractice, its Agenda dated 12th June 2023 (5 days AFTER the Tribunal Decision) for its meeting held 20th June 2023, does not record this Tribunal Decision as correspondence or even as an Item of business.
Nevertheless, Potto Council apparently made a decision (unrecorded in any meeting Minutes, and thereby unlawful – ultra vires) to appeal against the Tribunal Decision and it sent its ‘letter of appeal’ dated 12th July, together with a supporting document, to the Tribunal on 19th July 2023; see email below:
Potto Council’s ‘letter of appeal’ dated 12th July 2023 extends to seven pages. It seems the Appellant has obtained a copy and has annotated Potto Parish Council’s letter by inserting corrections and inconvenient truths (in blue text) below each section of the letter’s (black) text. (I had intended to reproduce these letters in full in this article, but my legal advisers ‘stayed’ publication for a month).
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Tribunal procedure specifies that no Authority or Council can ‘appeal’ a Decision issued by the First Tier Tribunal (FTT), without first seeking ‘permission to appeal‘ (PTA) to the Upper Tribunal. However, it seems that the directing mind(s) at Potto Parish Council had not grasped this crucial nuance (requiring it to seek permission) and, worse, it apparently failed to seek any assistance in this matter from YLCA, its paid legal advisors. Duh!
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Despite Potto Parish Council being a fully paid up member of YLCA (and hence entitled to seek its expert advice), it seems this relationship has become strained and difficult. Ms Sheena SPENCE, Chief Officer at YLCA, apparently “raised concerns about the level of engagement of [Potto] council [with YLCA]“ to the Council’s auditors, PKF LITTLEJOHN LLP, in 2023.
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The Council’s 2021 meeting Minutes further demonstrate the Council’s impasse with YLCA:
I can speculate here about another reason as to why Potto Parish Council refused to seek advice from YLCA.
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Notwithstanding the apparently strained relationship, it is very likely that the solicitors at YLCA would have considered Potto Parish Council’s position to be utterly untenable and, for that reason, strongly advised the Council not even to attempt a fatuous Appeal to the Upper Tribunal. In order to avert the risk of Potto Parish Council receiving such authoritative and useful advice (albeit not in support of the Chair and Clerk’s views), YLCA was (according to the Council’s own correspondence records), not contacted.
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The egos of the unelected Chair and its dubiously appointed Clerk/RFO seem to have prevailed over proper practice. Again.
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Nevertheless, drafting a genuine application to the FTT to seek permission to appeal to the Upper Tribunal is quite a simple process that only requires diligence and compliance with the Tribunal’s Rules (excerpt below), but adherence to this clear process proved to be well beyond the capacity of Potto Parish Council.
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A Party cannot ‘appeal’ simply because it has lost, or because its case was found inadequate or frivolous, but this is exactly what was attempted by the obviously desperate Potto Parish Council. It can be seen from s.39 in the Tribunal’s Rules (shown above) that each ‘Permission to Appeal’ MUST be based upon the fundamental matter of identifying an erroneous point of law (s.11 of the 2007 Act).
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Potto Parish Council’s shoddy and unconvincing letter of appeal dated 12th July 2023 utterly failed this first and crucial test – it did not even mention or attempt to identify an erroneous (or indeed any) ‘point of law’. Hence, Potto Parish Council’s ‘appeal’ was clearly doomed to rejection from the very start.
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I would suggest that Potto Parish Council’s failure on this rudimentary point may possibly have been averted had expert legal advice been sought from YLCA and if a suitably erroneous ‘point of law’ could be identified (but in this case, there simply is NO suitable ‘point of law’ to identify).
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Significantly, Ms Sapna GANGANI, the ICO Solicitor who acted for the Commissioner – but lost this case to the Potto resident – refused to be further involved. Having already accepted, on 30th June 2023, the validity of the Tribunal’s Decision to determine that the ICO Decision Notice “was not in accordance with the law”, she did “NOT seek to appeal it”:
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If the ICO solicitor was unable to find anything to quibble about in Judge Goodman’s Decision, I would humbly suggest that the likelihood of Potto Parish Council’s unelected Chair and unqualified Clerk/RFO identifying a valid ‘point of law’ is somewhat less than my chances of winning the lottery (without a ticket).
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Nevertheless, despite not complying with even a single one of the Tribunal’s Rules (including the fundamental matter of identifying an erroneous ‘point of law’), the Council’s ‘appeal’ letter was taken seriously and initially transferred to Judge GRIFFIN (no relation to the Potto Councillor of the same name) under new case Ref EJ/2023/0005.
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So despite Potto Parish Council’s inadequately structured letter of ‘appeal’, it seems the Tribunal was exceptionally lenient and generously offered the Council some very significant leeway.
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On 30th August 2023, Judge GRIFFIN issued some Case Management Directions (CMDs).
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These CMDs required Potto Parish Council to confirm some details regarding its correspondence. Paragraph 6 of this CMD noted that Potto Parish Council had until 22nd September to submit an Application for Permission To Appeal (PTA), but it seems that this final crucial step was ignored by the Council. I understand that a completed PTA form UT13 [here] was never received by the Tribunal, indicative yet again of the lack of diligence shown by Potto’s struggling Clerk/RFO, Ms Joanne STOREY (née WILDE).
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September and October 2023 came and went uneventfully, but on 3rd November 2023 the inevitable finally occured.
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Potto Council’s ‘appeal’ was REFUSED by Judge Goodman (see email below):
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Each of the invalid, irrelevant and amateurish points raised by Potto Parish Council in its ‘appeal letter’ were comprehensively dismissed by Judge GOODMAN, who nevertheless appeared to take an exceptionally lenient view of the Council’s flagrant and prolific ineptitude.
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Judge GOODMAN stated (having just recorded a rather serious and specific irregularity in Potto Council’s letter) “I exercise my discretion to waive any other irregularities in their application”. This is quite an understatement of the facts and a very generous concession to an obviously floundering Council, before concluding as below:
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Judge GOODMAN hardly needs my concurrence but I have to say that she got it dead right – Potto residents are NOT vexatious or acting to cause harassment if they work as whistle-blowers and expose Potto Parish Council’s genuine and deeply-embedded culture of maladministration to those in authority. Indeed, I would suggest every right-minded resident, with a functioning ‘moral compass’, has a civic duty to do exactly that – hold the wrongdoers to account.
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Former Government Minister Rt.Hon. Eric PICKLES MP [Con.] (Brentwood and Ongar) – now Baron PICKLES – wanted to create “an army of armchair auditors” to encourage whistleblowers – an excellent idea – and entirely in the Public Interest.
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Lastly, I note some Case Law guidance about the reasons for refusing permission to appeal, as recorded in the excerpt below:
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Potto Parish Council never had, and still has, “no realistic prospect of success”.
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It has perpetuated this utterly pointless farce and wasted substantial amounts of Court time – all payable by the public purse.
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The unelected Chairman WILDE, his daughter Joanne STOREY (née WILDE) and each of the other sycophantic Council members should be thoroughly ashamed of themselves. They are each jointly and severally liable for bringing Potto Council into disrepute with the ICO, with the Tribunals and with the public at large.
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This fiasco of Potto Parish Council attempting to overturn a robust Judgment (accepted as such without demur by the ‘losing’ ICO solicitor), without a scrap of evidence and acting in breach of ALL the Tribunals Rules, typifies yet another significant failure of Governance and Accountability at the Council; exactly the primary ‘weakness’ that ran like a leitmotif throughout the Auditor’s damning 2022 Public Interest Report.
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This article has been brought to the attention of PKF LITTLEJOHN LLP, Potto Parish Council’s diligent and dedicated External Auditor.
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