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[2005] UKSSCSC CSDLA_364_2005 (08 December 2005)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSDLA/364/2005

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

DEPUTY COMMISSIONER: SIR CRISPIN AGNEW OF LOCHNAW BT QC

Appellant: Mrs Alexandra McNab Respondent: Secretary of State

Tribunal: Glasgow Tribunal Case No: U/05/101/2004/01996

DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER

Decision

1. I hold that the tribunal erred in law. I remit to a differently constituted tribunal to rehear the appeal.

Background

2. The claimant applied for both components of DLA, but the claim was refused.

Appeal to the tribunal

3. The claimant appealed to the tribunal. A preliminary objection was taken on the grounds that the Chairman had previously sat with the EMP on whose report the Secretary of State replied. This objection was repelled. The tribunal then went on to refuse the appeal and hold that the claimant was not entitled to either component of DLA. The tribunal issued a Statement of Reasons.

Appeal to the Commissioner

4. The claimant appealed to the Commissioner on two grounds:
5. 1 That the tribunal ought not to have repelled the objection to its composition. Prior to the listing of the tribunal the claimant had requested that on the basis of CSDLA/444/2002 [Cunningham] that tribunal members should not previously have sat with the EMP and despite this request the tribunal chairman had previously sat with the EMP;
6. 2 That the reasoning was inadequate because the tribunal had listed a number of walking activities that the claimant could do like "to get in a taxi, to go to the fish van, to go in and out of the post office and to go in and out of Safeways" but had not stated a distance for completion of these activities and had failed to give an adequate explanation or reasons in respect of falls or stumbles.
7. The Secretary of State did not support the appeal on either ground.

Discussion

The Cunningham challenge

8. In Secretary of State v Cunningham R(DLA) 7/04, the Court of Session upheld my decision in CSDLA/444/2002, that where the EMP had sat with the other members of the tribunal on a number of occasions that there would be apparent bias and so the tribunal was flawed. The factual situation was that in the two years prior to the Appeal Tribunal hearing one of the three EMPs, (whose evidence was in the end accepted by the Tribunal) had sat as a medical member of the Tribunal, with the chairman during 22 sessions, with the disability member during 14 sessions and with both the chairman and the disability member during 3 sessions.
9. In the present case the record of proceedings states that the Chairman had sat with the EMP once, the wing member "never" and the medical member is noted as having nothing to add. The record of proceedings states that the Chairman had sat with the EMP once, the wing member "never" and the medical member is noted as having nothing to add. The Statement of Reasons says:

"It should be noted that exception was taken to the chair by the appellant's representative on the basis of the Cunningham decision. The chair had sat previously with the EMP at tribunals. However, this was repelled by the tribunal on the basis that the number of occasions and the frequency (once of twice in the last five years) did not constitute "such number of occasions as to give legitimate apprehension of bias".

10. In Cunningham the Court of Session was asked to give guidance on the frequency with which sittings might invalidate a hearing. The Court said:

"6. … Before parting with the case, however, we do take note of a request by Mr. Brodie, Advocate, on behalf of the Secretary of State, that, if we were against him, it would nonetheless be helpful to have clarification as to how far our decision depended on the frequency with which Dr. B had previously sat with two of the three members of the Tribunal. We do understand the practical considerations underlying that request and in that connection we note that in Lawal the House of Lords felt able to "concentrate on a systemic challenge and apply a principled approach to the facts on which it [was] called to rule." In that case, therefore, it was apparently decided that if the barrister had previously sat with a member of the Tribunal on only one occasion, that would be enough to give rise to a complaint of apparent bias. Sitting in this court we do not, of course, have the same authority as the Appellate Committee of the House of Lords wherewith to make such far reaching pronouncements. Moreover, we are reluctant to assert that our decision would necessarily have been the same if, for instance, Dr. B had formerly sat on only one occasion, perhaps a long time ago, with, say, one member of the Tribunal. That or similar questions will be for another day unless, that is, they are pre-empted by a change of practice in the interim. Coming back to the facts of the present case all that it is necessary to hold is that the extent of the relationship which may reasonably be expected to have developed between Dr. B and two of the members of the Tribunal was such that the informed observer would perceive a real risk of sub-conscious bias on their part in favour of Dr. B's evidence."

11. The Secretary of State relies on the comment that "we are reluctant to assert that our decision would necessarily have been the same if, for instance, Dr. B had formerly sat on only one occasion, perhaps a long time ago, with, say, one member of the Tribunal." That comment aptly applies in the present case, where the Chair seems to have recollected that he sat only once with the EMP five years ago [per Record of Proceedings] or possibly twice in the last five years [per Statement of Reasons].
12. The test to be applied is the Porter v Magill [2002] 2 AC 357 test set out by Lord Hope of Craighead at paragraph 103, as applied in the tribunal context by Lord Steyn in Lawal v Northern Spirit Ltd [2003] ICR 856, where his Lordship said:

"The principle to be applied is that stated in Porter v. Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the Tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased?"

This was the test used by the Court of Session in Cunningham in determining that appeal.

13. In Lawal the House of Lords decided that if the barrister had previously sat with a member of the Tribunal on only one occasion that would be enough to give rise to a complaint of apparent bias. The question in this case is whether it is enough that the EMP in the case has sat once with the tribunal chairman as the medical member of the tribunal. Do the same criteria apply as apply between the advocate in a cause who had previously sat at the legal chairman with the wing members?
14. It is my opinion that there is no distinction between the two situations. While wing members might rely on the legal chairman for legal advice and therefore possibly give him more credence when appearing as an advocate, so the legal chairman and the lay wing member rely on the medical member for medical advice in the tribunal and might therefore give an EMP [an expert witness] more credence than they might give to an EMP with whom they had not sat and thus there might be apparent bias.
15. In Cunningham, I said:

"42. That said I have come to the view that an expert witness is in a different position to an advocate, where both are part time members of a tribunal before whom they appear in their respective capacities. I consider that a well informed layman might conclude that there was a real possibility of bias, where an expert appears before a tribunal including members with whom he has sat on a number of previous occasions. This is more likely to be so before a tribunal where the evidence is written and the tribunal does not see all the experts giving evidence and being cross-examined so that they can make a proper comparison. If one expert is professionally known to the members, through having sat with them and advised them on how to approach medical evidence, I can see that there is a danger that they will apply their knowledge of him, consciously or unconsciously, to an assessment of the weight to be given to his evidence as against the other Reports, where the doctor concerned might not be known to the tribunal."

16. That paragraph, amongst others, was quoted by the Court of Session with approval and the Court said:

"3. … For the rest, however, with the possible exception of the use of the word "might" in para 42, the reasoning summarised above is in our opinion unimpeachable. In that connection, it is clear, in our view, that the frequency of occasions on which Dr. B had sat with the chairman and disability member was not - and indeed cannot - be left out of account. So far as the authorities considered by the Deputy Commissioner are concerned, it is true that the decision of the Commissioners in CSDLA/1019/99 was overturned on appeal to this court. However, the Deputy Commissioner makes it clear that he would have reached the same conclusion independently of that decision and, in our opinion, the facts of that case are, in any event, readily distinguishable. As regards Lawal, it is, of course, no longer necessary to distinguish that case and, following the reasoning of the Deputy Commissioner, we are of opinion that the present case can be seen as being an even stronger case for the application of the doctrine of perceived or "apparent" bias. Not only does the same "collegiate relationship" obtain - to borrow a phrase from Lord Steyn - but in the present case the former member of the Tribunal was one of a number of expert witnesses whose conflicting evidence had to be assessed, not even in person but simply on paper. Bearing in mind the influence which Dr. B may reasonably be expected to have exerted during his previous dealings with two of the three members of the Appeal Tribunal, we can well understand how this state of affairs would be - again to borrow a phrase from Lord Steyn - "worrying in the eyes of the fair-minded observer"".

The Court would therefore appear to have accepted my reasoning in relation to the situation of an EMP, as an expert witness, sitting with other tribunal members.

17. While the Court of Session left open the question of whether frequency of sitting is a relevant consideration or whether it should be approached as "a systemic challenge and apply a principled approach to the facts on which it is called a rule" [Lawal at 20.], it is clear from paragraph 3 that "that the frequency of occasions on which Dr. B had sat with the chairman and disability member was not - and indeed cannot - be left out of account" was the ratio behind that decision. The court did not require to consider the level of frequency issue, because the frequency of sitting in that case was sufficient to import apparent bias.
18. I consider that the decision in this case has to be decided on a principled approach otherwise, each sitting will have to be decided on the facts relating to the frequency and timing of sittings of each case, where the range of opinions may differ. Such an approach is unlikely to inspire confidence in the tribunal system, which is the core need behind the ECHR jurisprudence that the fairness and impartiality required by Article 6.1 must inspire confidence in the court's system in a democratic society - [Lawal paragraph 14 and cases there cited]. Public perception of the possibility of unconscious bias is the key - Meerabux v Attorney General of Belize [2005] 2 WLR 1307, Lord Hope of Craighead at 22]. While the Court of Session in Cunningham considered that they could not take such far reaching decisions in relation to the systemic approach, I note that in R (on the Application of PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311 at paragraph 8, that the Court of Appeal adopted Silber J's summary of the relevant principles, which were quoted at paragraph 6(d) that the approach of the court, quoting Lord Steyn in Lawal, must concentrate on a systemic challenge and apply a principled approach.
19. In the context, where Lawal has decreed that a part time chairman should never appear as an advocate in a tribunal case, having regard to the other statutory prohibitions referred to in that case, I am of the opinion that a modern fair-minded and informed observer would find it unacceptable that a chairman may sit with an EMP for an uncertain number of occasions and that does not display apparent bias, but that over some uncertain figure the courts will hold that there is bias. In my opinion, such an observer is likely to take the view that the Lawal principal should also be applied to EMPs appearing as expert witnesses.
20. As Lord Steyn said in Lawal:

"21 The principle to be applied is that stated in Porter v Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased? The observer is likely to approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected to develop a fairly close relationship of trust and confidence with the judge. The observer may also be credited with knowledge that a recorder, who in a criminal case has sat with jurors, may not subsequently appear as counsel in a case in which one or more of those jurors serve. Despite the differences between the two cases, the observer is likely to attach some relevance to the analogy because in both cases the judge gives guidance on the law to laymen. But the observer is likely to regard the practice forbidding part-time judges in the employment tribunal from appearing as counsel before an employment tribunal which includes lay members with whom they had previously sat as very much in point. The editor of the Industrial Relations Law Reports [2002] IRLR 225 has argued that "A rule to the same effect is even more necessary in the Employment Appeal Tribunal". In favour of this view there is the fact that the appeal tribunal hears only appeals on questions of law while in the employment tribunal the preponderance of disputes involve matters of fact. The observer would not necessarily take this view. But he is likely to take the view that the same principle ought also to apply to the appeal tribunal."

21. I consider that reasoning would also apply in the present case. The observer would be credited with the knowledge of both the Lawal and the Cunningham decisions. With that knowledge, I consider the observer would say if in some circumstances a tribunal is biased if the members have sat with the EMP, then the principle set out in Lawal ought to apply that a tribunal is always to be taken as apparently biased, if there has been at least one sitting by the EMP with a tribunal member.
22. I take support for this conclusion from Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] IRLR 208 [A Court of Session decision] where the issue was the fairness of nursing disciplinary procedures was considered. The Lord Ordinary expressed concern that persons could move between two roles in the disciplinary process, albeit not in the same process. He said:

"[85] … Had it been necessary for me to decide whether the PPC, viewed on its own, would constitute an independent and impartial tribunal, meeting all the requirements of Article 6(1), I would have found for the petitioner on that issue. In my opinion, the fact that the same individuals sit on both the PPC and the PCC is the factor of greatest significance. I accept, of course, that no individual member of the respondents takes part in the consideration of any particular case by both the PPC and the PCC. I accept that will not occur in the petitioner's case. Nevertheless I consider that any objective observer would consider it unusual that those involved, from time to time, in the taking of decisions to initiate disciplinary proceedings against members of a profession, are also involved, at other times, in adjudication upon such proceedings. The fact that the same individuals can move backwards and forwards between these two roles, throughout their terms of office, is of particular significance. There is also the point that it lies within the discretion of the respondents to determine whether all individual members of the respondents and of the two panels are actually invited to sit on the PCC. Whilst an official arranges who actually sits on the PCC, when the committee is hearing disciplinary cases, there is no guarantee that all of the individual members of the respondents and the panels will actually be invited to sit from time to time."

…

[87] Where the same members of the respondents and the same panel members are serving on both the PPC and the PPC (albeit not in connection with the same cases), there is in my opinion an objective basis for concern that members serving on the PCC will take into account, even if only sub-consciously, their knowledge and experience of the current practices and policies of the PPC, as to when to commence prosecutions, influenced as those practices and policies may be, at least to some extent, by the policies of the respondents as a council."

23. The passages quoted from Tehrani were approved by the Visitors to the Inns of Court in In re P (A Barrister) [2005] 1 WLR 3019, where the Visitors said:

"99 … we find that the reasoning of Lord Mackay of Drumadoon in Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] IRLR 208 in the passages from paras 87 and 88 of his judgment which we have cited at para 80 above, albeit obiter, does indeed identify material deficiencies in the concept of the appearance of independence where there is role changing of a tribunal member of the kind found in that case and in this."

24. In the same case the Visitors [at 106] commented on the fact that the informed observer would not necessarily know how often a lay member had attended and accordingly without that knowledge might assume a greater attendance than had actually happened. The Visitors said:

"106 If one assumes that the information available to the observer did not include Ms Nathan's PCCC attendance record, our view is that the fair-minded observer would perceive a real risk that Ms Nathan might be influenced by what she had absorbed at PCCC meetings. After all, nothing in the Complaints Rules and in the other regulations prescribes how frequently a member of the PCCC can or should attend meetings. For all the fair-minded observer might know a lay representative might attend very many meetings of the PCCC and thereby be frequently associated with its decision-taking. The more frequently it is assumed that she attended such meetings, the greater the basis of the fair-minded observer's perception of bias."

25. As the fair minded observer might not have the information available to him, I consider this is another reason why just one sitting should be enough to invalidate the proceedings. A fair minded observer would be entitled to assume that there would be no role changing and that if role changing was permitted that gave rise to a real risk that the tribunal would not be fair and impartial.
26. I consider that the same concerns arise in the circumstances of appeal tribunals, where an EMP can move backward and forwards between the role of EMP and the role of medical member. I consider that gives rise to the same type of objective basis for concern, in that the EMP as a medical member, will bring sub-consciously, his knowledge and experience and current policies of the EMP's practice to the tribunal and therefore determine the appeal in light of that knowledge. I appreciate that is a different point from the main point in this case that the chairman might have been sub-consciously biased in favour of the EMPs evidence, but it encapsulates similar concerns.
27. It is the ability to move from one role to the other that raised the concerns in different ways in different circumstances. I consider this supports my conclusion that an objective bystander would take the view that for there to be a fair and impartial tribunal, the members ought not to be able to move from the role of member of the tribunal to the role of appearing before the tribunal in different capacities. As Lord Nolan said in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 139: "I would only add that in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality." I consider that the "appearance" of ability to shift from the role of medical member to expert witness before the same tribunal is an appearance that legitimately gives rise to concerns from which an observer would conclude that there was a real possibility that the tribunal was biased, particular if there is a risk of appearing before members, with whom the EMP has previously sat on a tribunal.
28. For all these reasons I consider that the tribunal ought to have sustained the objection. The tribunal therefore erred in law.

Reasons challenge

29. Having decided that the tribunal erred in law by not upholding the objection, I do not require to determine this issue. However, I would not have held that the tribunal erred in law in relation to the reasons given for refusing the appeal.
30. While it is right that the tribunal state that the claimant can get in a taxi, to go to the fish van, to go in and out of the post office and to go in and out of Safeways, without mentioning distances, it is clear from the reasons that on the basis of the evidence and the finding of the EMP, the tribunal held that the claimant could walk in excess of 100 meters at least before requiring to stop. The examples were part of the overall evidence from which the tribunal reached its conclusion and I do not consider the tribunal required to give distances for those examples. I also consider that the reasons are adequate in relation to why the claimant does not require the care component in relation to supervision. The case was made on the basis of falls and therefore the requirement of supervision. The tribunal has held that there was no ongoing history of falls and that is the reason they have rejected the care component.

Summary

31. As I have held that the tribunal ought to have allowed the challenge to its composition, I remit the appeal to a differently constituted tribunal for reconsideration.

(signed)

Sir Crispin Agnew of Lochnaw Bt QC

Deputy Commissioner

Date: 8 December 2005