The First‑tier Tribunal (FTT) has allowed an appeal by requester Penelope Ballinger after finding that West London NHS Trust relied on incorrect factual premises when refusing a Freedom of Information request about Nursing and Midwifery Council (NMC) referrals.
The Tribunal set aside the Information Commissioner’s Decision Notice of 15 August 2025 and substituted its own directions, requiring the Trust to issue a fresh response and disclose an aggregate figure for NMC referrals between 2019 and 2023.
Ballinger had asked the Trust for the total number of nurses and midwives referred to the NMC for fitness‑to‑practise concerns over a five‑year period. The Trust initially claimed it did not hold the information and later relied on section 12(1) FOIA, arguing that locating the data would require reviewing 5,755 personnel files or 755 employee‑relations cases. It also invoked section 21, asserting that the information was reasonably accessible from the NMC.
The Commissioner accepted this evidence and upheld the Trust’s position.
However, after the Decision Notice was issued, the Trust disclosed, via a separate FOI request, a central oversight spreadsheet held in the Chief Nurse’s Office containing 25 active and closed NMC cases from 2019–2024. This contradicted the Trust’s earlier statements that no central record existed.
In its decision in Penelope Ballinger v The Information Commissioner & Anor [2026] UKFTT 282 (GRC), handed down on the 27th February. 2026, the FTT found that the spreadsheet “called into question the factual premises on which the DN had proceeded” and that the Trust’s evidence to the Commissioner had been “incorrect in light of the spreadsheet subsequently disclosed.”
Because the spreadsheet reduced the search universe to no more than 25 files, the Tribunal held that section 12(1) could not apply. It also rejected section 21, noting that employer‑specific referral data is not available from the NMC’s public website and would require a fresh FOI request, which does not meet the statutory test of reasonable accessibility.
The Tribunal further found that the Trust failed to comply with section 16 FOIA, as it did not provide meaningful advice or assistance, did not suggest narrowing the request, and did not disclose the existence of its central oversight record.
The Decision Notice was therefore set aside. The Tribunal ordered the Trust to:
- issue a fresh FOI response
- review the 25 cases on the spreadsheet and corresponding personnel files
- determine how many referrals to the NMC originated from the Trust between 2019 and 2023
- provide the requester with a single aggregate figure within 35 days
The Tribunal emphasised that compliance with these directions does not engage section 12(1) and that section 21 cannot be relied upon.
