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Tribunal orders Pubs Code Adjudicator to release withheld pubco letters and states “the PCA should be acting impartially”

The Pubs Code Adjudicator (PCA) has been ordered by an Information Appeals Tribunal to release letters and meeting notes with the regulated pubcos that led to a significant error in a now withdrawn Pubs Code statutory advice note. Fiona Dickie, the current PCA, supported the original decision of former PCA Paul Newby to refuse a Freedom of Information request to release this information.

This once again leads to serious question marks over the impartiality of the Pubs Code Adjudicator, with the PCA firstly choosing to deal only with the pubcos over such a key issue and then refusing to disclose information about these dealings, when it became apparent that an error was made that disadvantaged tenants.

The Information Appeals Tribunal has ordered the PCA, Fiona Dickie, to release information requested in May 2019 relating to the error the PCA made in its now withdrawn Statutory Advice Note on Rent Dispute Clauses and Calderbank Letters.  The Statutory Advice Note was in place for two years and misrepresented the position on the Market Rent Only (MRO) option to the detriment of hundreds of tenants.

The Freedom of Information request was made by Gary Murphy, a Director of the Campaign for Pubs and landlord of Ye Olde Mitre Inne, Barnet. He identified that the PCA and regulated pubcos had mis-interpreted the Pubs Code when he attempted MRO in 2016/2017. His attempt at MRO failed as a result and the PCA subsequently ruled against him in a “Detriment” claim issued under the Pubs code.

The ruling states (key areas highlighted):

The Pubs Code Adjudicator did not deal with the appellant’s request for information in accordance with the requirements of the Freedom of Information Act 2000 (FOIA)”.

”We uphold the appeal. The PCA was not entitled to withhold information within the scope of the Refined Request”.

The PCA had resisted releasing the information for over two years using the Freedom of Information Act exemption that it would impede future free and frank discussions between the PCA and the regulated pubcos – the Pub Owning Businesses (POBs). The Tribunal ruled that this was not a lawful reason for withholding the information as the public interest favoured the release of the information.

Paul Newby, the previous PCA, had made the original decisions on whether the information should be released. Fiona Dickie, the current PCA and a qualified barrister, was asked to review the matter by the Information Commissioner, but she maintained that Mr Newby was correct in withholding the information.

The Tribunal noted that the PCA had made the decision not to consult tenants on the original Statutory Advice Note and that this decision, plus the significant financial value of the MRO option, supported the subsequent release of the consultation papers following the PCA’s admission of the error.

Within weeks of the PCA ruling against Mr Murphy, the PCA admitted to his solicitor that they had misinterpreted the Pubs code. The Advice Note was subsequently withdrawn.

Despite their admission of the error and the withdrawal of the Advice Note, the PCA refused to revisit Mr Murphy’s case. The PCA promised to consult the industry and confirm the correct the legal position. However, they have still not done so over two years later.

The ruling also looks at a key concern of independent tenants’ groups (ones not linked to or funded by the regulated pubcos) which is that the PCA is not even handed or impartial in dealings with pubcos and tenants and is too close to the pubcos:

The appellant also makes the point that the PCA only consulted with the POBs on the issue of triggering rent dispute clauses, not the tied tenants – even though both groups are stakeholders who are affected by the Pubs Code. We do not find there was any obligation on the PCA to consult with TPTs as well as POBs. However, as the consultation was only with one group, this makes it particularly important for the public to be able to see and understand how the PCA was carrying out its role. If the PCA chose to consult with one party and not the other when drafting its Advice Note, there is an enhanced interest in transparency because the PCA should be acting impartially.

This is damning and exposes the cosy relationship that the PCA and PCA’s office has with the regulated pubcos – as opposed to doing the PCA was set up to do, as described in the ruling . “The Pubs Code was created in order to help regulate the relationship between POBs and TPTs. Its  purpose was to correct an imbalance between the parties, by setting up a mechanism

by which tenants could break their ties and move to a market rent arrangement instead”. The way the PCA operates, as exposed by secret chats with the pubcos, shows that this purpose is not being fulfilled.

The Campaign for Pubs and the British Pub Confederation will continue to campaign for a truly impartial and independent Adjudicator who will actually adjudicate to uphold pub tenants’ rights and correct the imbalance between pubcos and tenants – something both Paul Newby and Fiona Dickie have consistently failed to do.

Gary Murphy, Campaign for Pubs Director for Tied Pubs and licensee of Ye Olde Mitre, High Barnet, said:

“The Pubs Code Adjudicator clearly does not operate in the interests of tenants and this ruling ought to be a wake-up call to the Govt and MPs to a biased and ineffective leadership team.

“I am due to apply for MRO again later this year and I am consulting with my lawyers on how we can force the PCA into clarifying their errors. It should not be like this. We need a PCA that is truly independent and balanced. We will also carefully scrutinise the information we will obtain as a result of this tribunal decision.”

Greg Mulholland, Campaign Director of the Campaign for Pubs said:

“This is yet another example of the profound failure both of the Pubs Code Adjudicator and the weak legislation in the watered-down Pubs Code. The decision by Fiona Dickie to back the decision to withhold this information is a damning indictment of her judgement, withholding information that it is in the public interest to disclose.

“It’s deeply disappointing the way that the Pubs Code Adjudicator refuses to deal with the substantive issues the office was set up to tackle and instead tinkers round the edges, whilst having too close a relationship with the pubcos and their trade representatives and ignoring independent tenants’ groups in favour of bodies linked to or funded by the regulated pubcos.

“It’s clear that successive office holders are far to content with giving the impression of action, whilst actually failing to deliver the simple right promised to tenants, to go free-of-tie on an independently assessed market rent. Alas it seems Ministers are no more interested in what tenants were promised, so we will continue to challenge decisions, to demand transparency and to campaign for a genuine Market Rent Only option and a fearless and independent Adjudicator who will actually adjudicate to uphold tenants’ rights”.

ENDS

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