Freedom of Information Appeal Leads to New Policy
An appeal under the Freedom of Information Act 2000 has led to the resolution to a 15-year dispute between community activists and a local authority.
Background: Recognition and Conflict
The Haringey Leasholders Association, a community group which advocated for the interests of around 4500 leaseholders in Haringey. Haringey Borough Council was the freeholder. It formally recognised a number of groups as representatives of various constituencies for the purposes of consultation. The HLA was initially recognised as the consultative body for leaseholders. From 2009 or 2010 the HLA clashed with HBC over a number of issues. HBC made various allegations about the HLA and de-recognised the HLA in 2010. The HLA was re-recognised in 2012 but dispute continued.
In 2014 HBC commissioned another consultative group to write a report about the HLA. The report made various accusations (all of which were denied by the HLA). HBC kept the full report, and all of the evidence which was relied on to compile it, secret. HBC nevertheless published a number of allegations from the report (including in respect of named individuals) and ostensibly relied on these to, once again, de-recognise the HLA.
During this second period of de-recognition, HBC imposed substantial service charge increases on leaseholders. The report led to a series of civil and public law claims and community campaigning during which the HLA sought to refute the allegations made against it. The HLA was hampered in this, however, because HBC refused to disclose either the detail of the allegations or the evidence on which they were based. The HLA was re-recognised again in 2018.
FoI Request
In 2017 Nick Martin-Clark, an activist in the HLA, made a freedom of information request for the report and its evidence base. HBC refused the request and the Information Commissioner upheld the decision. The First Tier Tribunal dismissed Mr Martin-Clark’s appeal but the Upper Tribunal overturned the FTT’s decision and remitted the matter for re-determination. The decision is, in and of itself, an important authority because it establishes that public authorities cannot apply a “blanket” approach to exemptions under Part II of the Act. A summary of the issues in that case can be found here.
Rather than re-fight the case at FTT level, the parties reached an agreement. Mr Martin Clark agreed to withdraw his appeal (allowing the report and evidence to remain secret). In return, HBC agreed to “place no future reliance” on the report, effectively repudiating the report. HBC also made statements accepting that the reports conclusions in respect of certain individuals were wrong.
Public Statement
The parties agreed that HBC would make the following public statement:
The Council is pleased to announce that it has been able to settle a long-running piece of litigation brought by Nick Martin-Clark.
That litigation related to a request under the Freedom of Information Act 2000 for a draft report produced by the Residents’ Scrutiny Panel in 2014, summarising the result of an investigation into the Haringey Leaseholders Association (the HLA, and the RSP Report respectively). Mr Martin-Clark was, and remains, a committee member of the HLA.
The Council notes from the papers in this litigation that: (1) whilst the ‘Scope of audit’ document listed as an output “The Board requires a detailed confidential report outlining comprehensively the findings of the investigation along with recommendations” (2) a subsequent response to a Freedom of Information request in December 2014 stated that “the Chair of the Board said that he did not want the RSP to make strategic level recommendations in its report to the Board as it was up to the Board to draw its own conclusions from the summary of evidence the RSP reported” and that the final report was “sent to the Board and published without the recommendations”.
At the time that the RSP Report was produced, it was necessary for leaseholder groups such as the HLA to be formally recognised in order to actively participate in leaseholder engagement and formally represent leaseholders within the London Borough of Haringey (the Borough). The HLA was de-recognised following production of the RSP Report in 2014. Sue Brown was the Chair of the HLA at the time and Mr Martin Clark was a committee member of the HLA. Since that date, the HLA has been re-recognised. On 5 August 2016 Homes for Haringey published a statement confirming that: “Homes for Haringey acknowledges that Haringey Leaseholders Association has properly accounted for all the public money it has received from Homes for Haringey1”. As part of the settlement between the parties in the present matter the Council agrees not to place any future reliance on the Report. The Council is committed to continue working with the HLA, taking account of their views and contributions on leaseholder issues, as part of the wider engagement of all leaseholders and in accordance with the applicable code(s) of conduct.
Much has changed more broadly since 2014. On 1st June 2022, housing services previously provided by Homes for Haringey returned to be delivered directly by the Council. The Council, following consultation with residents and leaseholders which included the HLA, established a new Engagement Structure and Framework. The HLA continues to be recognised as an important borough wide group which is included in consultations with regard to issues pertaining to Leaseholders and which receives some funding from the Council as part of that recognition. The Council recognises the longstanding commitment of the HLA to such issues.
Settlement Reached
The settlement is significant because it is one of the first occasions on which a political dispute has, in effect, been settled by an FOI claim. The settlement did not involve any of the information requested. Instead, it acted as a motivation for the parties to agree a settlement for the broader political dispute between them. This is, perhaps, a model of how disputes (which involve a FOI request as an important, but not sole, element) may be settled in future.
Sam Fowles acted for Mr Martin-Clark at first instance and in the Upper Tribunal and negotiated on Mr Martin-Clark’s behalf. He was instructed by Riz Majid of Bark and Co.
