On 30 October 2026 the Upper Tribunal handed down judgment in Department for Energy Security and Net Zero v Information Commission & Ben Webster [2026] UKUT 405 (AAC).
This was an unusual appeal about whether it was procedurally fair for the First-tier Tribunal to reach a conclusion that neither side had advocated for. The UT also ruled on the scope of the ‘material in the course of completion’ and ‘internal communications’ exceptions in the Environmental Information Regulations 2004.
In short, the Department for Energy Security and Net Zero appealed against an FtT decision ordering it to disclose a report on hydrogen heating to an environmental journalist, Mr Ben Webster. The UT dismissed the appeal.
The UT accepted the submissions of the Information Commission that the FtT’s decision contained no error of law.
- The fact that the hydrogen heating report was part of the evidence base for a forthcoming government policy decision did not necessarily mean that it was ‘material in the course of completion’.
- The FtT had been entitled to find that the report, which was not addressed to anyone, was not a ‘communication’. There was nothing procedurally unfair about that finding. As part of its inquisitorial jurisdiction, the FtT was “entitled to come to a conclusion, or outcome of their own, even if it is not one that was advocated by either side, nor even necessarily supported by ‘evidence’ by either side” (paras 38-39).
- In any event, the report was not ‘internal’ to DESNZ where it had been shared with the National Infrastructure Commission and the Committee on Climate Change.
Oliver Jackson acted for the successful respondent to the appeal, the Information Commission. A copy of the judgment is available here.
