London Borough of Southwark v The Information Commissioner & Anor

The proceedings were held by video (CVP). All parties joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 28 October 2025 (IC-376145-D4X0, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about the Dedicated Schools Grant Management plan and safety valve monitoring requested from the London Borough of Southwark (the “Council”). The Commissioner had decided that the information should be disclosed, and the Council appeals this decision.

On 8 July 2024, the Second Respondent (Southwark Law Centre, “SLC”) wrote to the Appellant (London Borough of Southwark, the “Council”) and requested the following information (the “Request”):

The safety valve programme exists to provide extra funding from central government to local authorities with overspends on the delivery of their special educational needs and disability (“SEND”) services. The grant management plan provides details of the Council’s forecasted spend over the coming years in respect of the dedicated schools grant. The safety valve monitoring report provides details as to how the Council is fulfilling its obligations outlined in its safety valve agreement.

The Council responded on 23 August 2024. It responded “none” to the first part of the Request, and provided a copy of the key performance indicators. It withheld the schools grant management plan and the safety valve monitoring report under sections 36(2)(b)(ii) (inhibition of free and frank exchange of views) and 36(2)(c) (prejudice to the effective conduct of public affairs).

SLC requested an internal review on 8 October 2024. The Council did not respond until 24 September 2025 (which was after the Commissioner had started his investigation) and maintained its position.

SLC complained to the Commissioner on 11 March 2025. The Commissioner decided that the Council had failed to demonstrate that the exemptions at sections 36(2)(b)(ii) and 36(2)(c) were engaged. This was on the basis that the Qualified Person’s (“QP”) written opinion given in December 2023 related to a request made in 2023, and was not reasonable in relation to the Request that was made in July 2024.

The Council appealed on 24 November 2025. The Council’s grounds of appeal are:

SLC opposes the appeal. Their response makes the following points:

The Commissioner’s response concedes the appeal. This is to ensure consistency in decision-making, given his findings in decision notice IC-367963-P0R0 referred to in the grounds of appeal (the Department for Education decision). That request was for substantially similar information. The Commissioner notes that the verbal provision of the opinion, without a record of the considerations given in the context at the particular time of the Request, is poor practice. He also notes the Council had made no submission regarding the QP’s opinion being given orally. The Commissioner says that further details and evidence ought to be provided of the Council’s public interest arguments, if the Second Respondent does not also concede the appeal.

The Council submitted a reply to SLC’s response, which is covered where relevant in the discussion below.

The relevant provisions of FOIA are as follows.

Any person making a request for information to a public authority is entitled—

if that is the case, to have that information communicated to him.

Effect of the exemptions in Part II.

Prejudice to effective conduct of public affairs.

This section applies to—

information which is held by any other public authority.

that the notice against which the appeal is brought is not in accordance with the law, or

The Qualifying Person’s opinion on prejudice must be “reasonable”. This is a test of substantive reasonableness, and is not concerned with whether the procedure was reasonable (Information Commissioner v Malnick and the Advisory Committee on Business Appointments[2018] UKUT 72 (AAC)). This is the threshold question which determines whether the exemption is engaged. The question for the Tribunal is whether the Qualified Person’s opinion as to the occurrence of prejudice is reasonable – not whether the Tribunal itself believes prejudice will or is likely to occur (Malnick paragraph 32). The opinion must be objectively reasonable, but there can be a range of reasonable opinions. The public interest balance is only relevant once this threshold has been crossed, and this is a matter to be decided by the Tribunal (Malnick paragraph 33).

The approach to be taken to prejudice-based exemptions was set out in the First Tier Tribunal decision of Hogan v Information Commissioner [2011] 1 Info LR 588, as approved by the Court of Appeal in Department for Work and Pensions v Information Commissioner [2017] 1 WLR 1. Whether disclosure “would” cause prejudice is a question of whether this is more likely than not. To meet the lower threshold of “would be likely to” cause prejudice, the degree of risk must be such that there is a “real and significant risk” of prejudice, or there “may very well” be prejudice, even if this falls short of being more probable than not.

Section 36 is a qualified exemption, meaning that the information should still be disclosed unless the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

The issues are:

By way of evidence and submissions we had the following, all of which we have taken into account in making our decision:

An agreed bundle of open documents.

A closed bundle of documents containing the withheld information.

Witness statements from Stuart Shorttle and Doreen Forrester-Brown.

Skeleton arguments from the Council and SLC.

Oral submissions at the hearing.

The witness statement from Stuart Shorttle explains the process for obtaining the QP opinion in 2023 and 2024. He is the Access to Information Manager for the Council.

Mr Shorttle attended the hearing to give evidence, and answered questions from the Tribunal and SLC’s counsel. The following additional points were provided in oral evidence:

The witness statement from Doreen Forrester-Brown explains her decision as Qualified Person for the Council. She did not attend the hearing to give further evidence.

In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision.

The Commissioner has conceded the appeal because of his decision in IC-367963-P0R0. This was a request for substantially similar information from the Department for Education (“DfE”) – the most recent safety valve monitoring report provided to DfE by the Council. We understand that this is not the same report as is covered by the Request. The DfE relied on the same exemptions as in this appeal. The Commissioner found that the Qualified Person’s opinion was reasonable, and the public interest favoured maintaining the exemptions. We can understand the Commissioner’s concern about consistency in his decision-making. However, this Tribunal is not required to follow that decision. We also note the Commissioner’s suggestion that further details and evidence ought to be provided of the Council’s public interest arguments

Are sections 36(2)(b)(ii) and 36(2)(c) engaged in relation to the Request? This requires us to decide whether the Qualified Person’s opinion was reasonable. The Information Commissioner has conceded this point. SLC did not make specific submissions on this point at the hearing, focusing instead on the balance of the public interest.

Having considered the evidence presented to us, we find that the Qualified Person did hold a reasonable opinion that disclosure would be likely to inhibit the free and frank exchange of views for the purposes of deliberation, or would otherwise be likely to prejudice the effective conduct of public affairs. This means that both exemptions are engaged.

We note that Ms Forrester-Brown’s opinion was given verbally rather than in writing. This was unclear to the Commissioner, which is why he decided that the exemptions were not engaged. We are satisfied that Ms Forrester-Brown did issue a new opinion verbally in July 2024, and this was recorded in the note set out in Mr Shorttle’s witness statement. There is no legal requirement for the opinion to be given in writing, and the test of reasonableness is substantive rather than procedural (see Malnick). She discussed the issue with Mr Shorttle and the Senior Information Officer, and this discussion was based on information from the subject matter expert.

We have seen the content of the withheld information. We are satisfied that it was reasonable for the Qualified Person to hold the opinion that this was “likely to” have these effects, meaning it is not certain but something that may very well happen. The withheld information does contain financial planning details and frank information from the Council about progress against the plan. We accept that disclosure of the monitoring report in particular might inhibit free and frank provision of information by the Council, because of concern about public reaction to the content of the report. We also accept to some extent that parents of SEND pupils might move their children or react in other ways that would affect the Council’s funding and teaching provision – although, having viewed the content of the withheld information, this consequence is less obvious to the Tribunal. We make this finding on the basis that it is an objectively reasonable opinion, rather than a view that the Tribunal shares.

If so, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information? This was the key area of argument at the hearing. Although we have found that the Qualified Person’s opinion was reasonable, and so the exemptions are engaged, the information can only be withheld if the public interest balance favours doing so.

The Council’s arguments on public interest were based on this being a point of principle which applied to all such plans and monitoring reports, rather than just about the specific material requested in July 2024. The Council relies on the Commissioner’s decision in relation to the request made to the DfE, and says the Tribunal can look at the reasons given in that decision on the public interest balance, as well as the reasons given in the refusal of this Request. The Commissioner’s response does not make a detailed argument on this point, and says that the similarities with the DfE request are sufficient to warrant a change of position to ensure consistent decision-making. SLC argues that the DfE decision concerns different material which we have not seen, and says the information covered by the Request may be different from the information covered by the October 2023 request and so the public interest balance may be different.

The Information Commissioner’s response to the appeal suggests that further details and evidence ought to be provided of the Council’s public interest arguments. The Council did not, however, provide any witness or other evidence that specifically addressed the public interest balance and how this related to the content of the withheld information. Mr Shorttle is not an expert in SEND provision, and so was not able to give detailed evidence about the specific content of the withheld information and the balance of the public interest. We did not hold a closed session during the hearing for this reason. We had no evidence from the subject matter expert who had provided their opinion to Mr Shorttle and the Qualified Person. Ms Forrester-Brown’s statement does not address the public interest balance (simply noting thatthere was a public interest in non-disclosure as there was the need for openness and transparency in decision-making). The Tribunal has therefore made its own assessment of the withheld information.

Public interests in disclosure. There is always public interest in openness and transparency in relation to Council funding and how public money is spent. Funding of schools and education is an issue of great public interest. As identified by the Council in their response to the Request, more openness and transparency in decision-making and the financial handling of schools may lead to more confidence in the system. The Council also noted that it is quite a turbulent period for schools in the secondary sector. This adds to the public interest in understanding schools and their finances.

What was missing from the Council’s analysis was the specific context of SEND provision. This is not considered in the Commissioner’s DfE decision either. SLC submits that there is a high public interest in disclosure of this information in relation to SEND funding that is difficult to outweigh.

We were referred to the Court of Appeal decision in Hampshire County Council v GC & Anor[2026] EWCA Civ 20. This relates to a local authority decision to remove an education, health and care plan from a child with special educational needs. At paragraph 60, Bean LJ refers to the “fundamental and frightening inequality of power” between parents of children with special educational needs and local authorities. SLC argues that secrecy about SEND funding feeds into this inequality. SLC says that a safety valve agreement expressly reduces SEND spending in return for writing off a local authority deficit. Parents are aware of safety valve agreements and so already concerned about SEND costs saving, and these concerns are made worse if they cannot see what costs are being cut. They are at a disadvantage in challenging local authority plans because they cannot see what those plans are. It is this secrecy that can lead to panic and unfounded speculation.

Public interests in maintaining the exemptions. These relate to the reasons the exemptions were engaged.

Conclusion on the public interest balance. We found this to be a finely balanced question. Having considered all of the evidence and submissions, we find that the public interest in maintaining the exemptions does not outweigh the public interest in disclosing the information. We accept SLC’s arguments that there are particularly strong public interests in transparency around the operation of the SEND system and in understanding how the safety valve system affects costs savings and SEND provision. We also accept that any chilling effect on free and frank deliberation caused by the disclosure of the withheld information would not be in the public interest, and nor would action by parents in response to the information that disrupts the school system. We find, however, that these effects are only “likely”, and the extent of these effects is unclear from viewing the specific withheld information. We had no specific evidence on how these effects would be caused by the actual content of these documents. Overall, this is not sufficient to outweigh the strong public interest in disclosure.

This means that the withheld information must be disclosed. We emphasise that this decision is based on the evidence that was presented to us, and the content of the information specifically requested in this case. We are not making a finding that such plans and reports must always be disclosed under FOIA (whether by the Council, DfE or other public authorities).

The Tribunal’s decision is unanimous. We uphold the appeal in part in relation to the engagement of the exemptions, but find that the withheld information should nevertheless be disclosed under the public interest test. We issue the Substituted Decision Notice set out at the start of this decision.