Legal rights charity wins tribunal case demanding Government transparency on determination of adult social care funding

The Information Tribunal has ordered HM Treasury and the Ministry of Housing, Communities and Local Government to reveal information requested by legal rights charity Access Social Care around the decision-making processes which determine funding for adult social care.

In His Majesty's Treasury v The Information Commissioner & Anor [2024] UKFTT 902 (GRC), Judge Kennedy KC and Judge Neville concluded that the public interest “points in favour of such disclosure”.

The litigation arose from Freedom of Information (FoI) requests made by Access Social Care (ASC) to reveal data available to and used by policymakers in relation to decision making on social care funding. HM Treasury and MHCLG denied the requests.

However, their decisions were overturned by the Information Commissioner in July 2023, who considered that disclosure was in the public interest.

The Treasury and MHCLG appealed this decision in the Information Tribunal, both submitting that:

• The Commissioner erred in law in finding a presumption in favour of disclosure applied;
• The Commissioner, having concluded that policymaking was still ongoing and live at the time of the request, wrongly concluded that the public interest in disclosure outweighed the public interest in maintaining the exemption under section 35 (HMT), 35(1)(a) FOIA (MHCLG);
• The Commissioner failed to properly take into account the fact that the Public Sector Equality Duty ("PSED") is a procedural duty when considering whether disclosure of the Sheet 8 ['Equalities Impact'] was necessary to satisfy the request;
• The Commissioner failed to properly consider whether part-disclosure or redaction of the completed Sheet 8 would satisfy the request (§3 GoA).

The Treasury also argued that:

• The Commissioner failed to consider whether the information already provided by HMT satisfied the request;
• The Commissioner failed to properly set out what documents (or parts of documents) were within the scope of the Request, and in particular, failed to consider whether the profile of spend was in the scope of the request.

Considering the ground relating to presumption in favour of disclosure, the judges noted that the Information Commissioner “now accepts that”, in light of the dicta in Department of Health v Information Commissioner and Lewis [2017] EWCA Civ 374 at [46], there is no presumption in favour of disclosure of information when a qualified exemption is engaged.

The judges said: “To the extent that the HMT Decision Notice or MHCLG Decision Notice suggest otherwise, the Commissioner agrees this is not the correct approach as a matter of law.”

However, the judges concluded: “The Tribunal accept and find that on balance, the public interest points in favour of such disclosure. We are further persuaded that the public interest in disclosure is heightened by the public benefit arising from the purpose and endeavours of the Second Respondent [Access Social Care] herein.

“Access Social Care is a new independent legal charity providing access to justice for people with social care needs. Access is a central hub for social care education and advice, helping individuals to understand and secure their lawful right to social care. By motivating organisations to collaborate to drive culture change on the frontline of social care and to share data on unlawful decision-making Access Social Care strives to achieve systems change at all levels of social care decision. This in our view carries significant weight in the public interest balance being in favour of disclosure.”

The judges added: “On consideration of all of the evidence and submissions before us, the Tribunal conclude that save for the corrected position wherein the Commissioner accepts there is no presumption in favour of disclosure of information when a qualified exemption is engaged, the Tribunal find no error of Law in the Commissioners' Decisions nor in the exercise of his discretion therein and we must refuse the appeals.”

The departments have been told to disclose the information within 35 days. They have 28 days within which to apply for permission to appeal to the Upper Tribunal. 

Access Social Care was represented by Niamh Grahame of Public Law Project and Stephen Cragg KC of Doughty Street Chambers.

Access Social Care’s CEO, Kari Gerstheimer, said: "The social care sector, including local authorities and care providers is broadly aligned that social care is critically underfunded – by £8.4bn to meet future demand, improve access to care and cover the full cost of care by 2024/25. This means that older people and disabled people are not getting the vital social care they need and to which they are legally entitled.

"With such a gap between what Government and the social care sector say is needed to fund social care, there has been a critical need for transparency and accountability. For two years, two government departments refused to share this information. Today, we are delighted to announce that the Information Tribunal has supported the Information Commissioner ‘s view that sharing this information is in the public interest.

"We welcome this finding and call on the new Administration to work with Access Social Care and the wider sector to ensure that funding decisions are based on the right evidence."

Gerstheimer added: "In fighting for this information, ASC is trying to reveal and understand the decision-making that guides social care, and how it can be improved. Having information about social care funding allocations would shed light on whether the government is meeting it’s key legal obligation to consider all relevant factors, and critically would provide civil society organisations a much-needed opportunity to play a meaningful part in driving improvement of central government decision making."

The Ministry of Housing, Communities and Local Government has been approached for comment.

Lottie Winson