DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CSDLA/1019/99
This claimant's appeal succeeds. We hold the decision of the disability appeal tribunal dated 15 July 1999 to be in error of law by reason of a breach of the principles of natural justice so far as affecting the composition of the tribunal. Accordingly we set aside the tribunal decision. We remit the case to the tribunal for determination afresh. That tribunal will be constituted in accordance with regulation 36 of the Social Security (Decisions and Appeals) Regulations 1999. We direct that the members of that tribunal have regard to what is said by this Tribunal about reasonable apprehension of bias and the objective test in that regard. We refer to in particular paragraphs 77 and 85 to 87 hereof. If they or any of them feel that they may be thought to fail that test they are either to recuse themselves in advance of any hearing or at the least disclose at the hearing the matters of possible concern so that parties may consider their position and, if so advised, make submission to the tribunal. We also draw the attention of the relevant authorities in the tribunal service to paragraph 92 below.
- The appellant, who will now be aged 57, suffered from conditions including arthritis and angina. He had been in receipt of disability living allowance ("DLA") for the period from 2 June 1994 to 1 June 1996. His renewal claim for the allowance was refused by an adjudication officer on 21 April 1998, a decision affirmed by another adjudication officer on review on 24 July 1998. He appealed against that decision. A Disability Appeal Tribunal ("the tribunal") held on 15 July 1999 unanimously refused that appeal. He now further appeals to the Commissioner with leave of the Chairman.
- In its statement of material facts and reasons (page 180 of the bundle), the appeal tribunal recorded a number of findings about the appellant's condition, capabilities and ability to care for himself. They stated the reasons for their decision as follows:-
"As stated on the day the tribunal found [the claimant's] evidence unreliable. The tribunal afforded greater weight to the opinions of the Examining Medical Practitioner and the General Practitioner. The Examining Medical Practitioner is expert in assessing condition [sic] and found that as he saw him on that day he could walk 50 meters plus whereas the GP who sees [the claimant], approximately once a month, finds that he can walk 200 yards. It is admitted that this is slow but without severe discomfort and with reasonable gait and fair balance. There is no record of falls and provided [the claimant] continues to go downstairs backwards in case he does become dizzy he does not require any supervision."
We also had available to us the tribunal's record of proceedings (176-179) and their decision notice (175).
- The medical member of the appeal tribunal was a doctor who regularly provided reports used by the Benefits Agency in the assessment of claims. At the time of the tribunal hearing she provided such reports as an examining medical practitioner (EMP) in respect of cases involving DLA (and related benefits) and also those involving the "all work test" (AWT), as in incapacity benefit (IB) claims. The terms of her appointment as a tribunal member and of her engagements to provide such reports were the subject of much consideration in this appeal. We should make clear, however, that no personal criticism of her of any kind was or is involved. We shall refer to her as 'Dr A'.
- The grounds of appeal attacked the adequacy of the appeal tribunal's reasons and, in reliance on Article 6 of the European Convention of Human Rights, the independence and impartiality of that tribunal. Both grounds of appeal were resisted on behalf of the Secretary of State. In relation to the issue of independence and impartiality, as well as maintaining that the hearing of the appellant's appeal did not contravene Article 6, the Secretary of State contends that a challenge relying on the incorporation of the Convention by the Human Rights Act 1998 is not competent in an appeal against an appeal tribunal decision taken before 2 October 2000, the date when most of the main provisions of the 1998 Act were brought into force.
- An oral hearing was directed. It commenced before Mr Deputy Commissioner Wright QC, on 28 November 2000. The parties then requested postponement of the full hearing. The Deputy Commissioner issued a direction seeking certain information. Thereafter, because the appeal raised novel questions of law about the application of Article 6 and apparent bias, the Chief Commissioner on 9 January 2001 directed that the appeal be heard by this Tribunal of Commissioners. The appellant obtained legal representation through the good offices of the Advocate General for Scotland. The Secretary of State helpfully and fully complied with the direction for further information. That is summarised below and was not in dispute. At our hearing the appellant was represented by Mr Simon Collins, Advocate instructed by Messrs Brown & Co, Solicitors, Glasgow, and the Secretary of State by Mr Jonathan Brodie, Advocate, instructed by the Solicitor to the Advocate General on behalf of the Secretary of State. The hearing took place over five days. We are much indebted to both counsel for the considerable care and trouble they took in dealing with the various issues which arose and for the clarity of their submissions. For convenience we set out the important relevant statutory provisions in the Appendix.
Dr A: the factual position
(i) As tribunal member
- We were told about Dr A's position (a) as a medical member of the appeal tribunal, and (b) in relation to her engagements to provide reports. We accept what we were told in those regards. As far as (a) is concerned, there have been changes since the date of the appeal tribunal hearing. We have referred to them so far as relevant. As far as (b) is concerned, significant changes were made in 1998 with the introduction of a system whereby the Benefits Agency contracted out the provision of reports to the SEMA Group ('SEMA') (who themselves sub-contracted some of that to another company Nestor Healthcare Group plc, and its subsidiary, Nestor Disability Analysis – hereinafter both known simply as 'Nestor'). That system continues, although Dr A's involvement has changed slightly since the tribunal hearing in respect that she now examines and reports only in relation to incapacity benefit.
- At the time of the appeal tribunal hearing, the Independent Tribunal Service ("ITS") was an independent body with a judiciary appointed by the Lord Chancellor, members appointed by the President and an administration provided by the DSS. It has since become 'The Appeals Service', with an even greater split between the judiciary and the administration. Now all panel members, including those legally qualified, are appointed by the Lord Chancellor.
- Dr A was first appointed to the panel of medical practitioners by the President of the ITS on 1 October 1993 (214-215). The period of her appointment was described thus:-
"2. Your appointment will run as from today's date until the 31 Aug 98. It may of course be terminated during the period of any term at your wish on reasonable notice, and at ours, for cause."
The letter of appointment also referred to a requirement to attend training offered by the tribunal service. Her appointment current at the date of the tribunal hearing is recorded by a letter dated 20 October 1998 from the Regional Chairman (218), confirming that the President had approved her re-appointment from 1 September 1998 until 30 September 1999, with an explanation that there were at the time proposals before Parliament regarding the restructuring and reorganisation of the tribunal service and it was to allow for these changes that her appointment had been renewed for that particular period. That letter was silent on the subject of termination.
- Extracts from an ITS Management Handbook, dated July 1996, were provided to us (219-224). They covered appointments to Disability Appeal Tribunals. Candidates for appointment "should be suitably established in their medical practice and be well-regarded within their professional circles" (4.3). The initial stages of the appointment process were primarily the responsibility of ITS Operations Managers, who processed applications up to the stage of interview by a Regional or nominated full-time Chairman (4.8). At interview, details of "the nature and extent of any fee-paid or sessional work which the candidate might perform for BAMS or for a private contractor on behalf of BAMS" were to be discovered (4.9). A candidate not considered suitable for appointment by the Operations Manager, and therefore not interviewed, was to be notified but without reasons (4.12,13). Appointment was "normally for a five-year period, renewable at the discretion of the President in the light of advice received from Regional Chairmen and Operations Managers" (4.15). During the medical member's first year chairmen completed 'monitoring reports' at three and nine months after appointment and if these were unfavourable a recommendation would be sent to the President to decide "whether or not the member's appointment is confirmed" (4.18). The situation of tribunal members who were also BAMS doctors was further covered as follows:-
"4.20 There is no reason why a doctor who is acting as an Examining Medical Practitioner (EMP) for the Benefits Agency Medical Services (BAMS) on a part-time basis should not be appointed as a DAT medical member. During interview, however, the Regional or full-time Chairman should satisfy himself that there is no potential conflict of interest between the two roles and should make it clear to the candidate that, if appointed, he would have to exclude himself from sitting on any tribunal hearing the appeal of a person whom he had previously examined in connection with any claim for benefit."
It therefore appears that at least from the date of the ITS Management Handbook dated July 1996 the question of potential conflict of interest between the roles of tribunal member and doctor providing reports was contemplated, to the extent mentioned, by ITS.
- We were also supplied with a note (288-292) of the terms and conditions of appointment of part-time panel members, which the Department advised (287) applied in November 1998. This reflects the change under the Social Security Act 1998 to their appointment and removal by the Lord Chancellor. It is slightly difficult to reconcile this with the letter noted above (218) showing Dr A to have been re-appointed by the ITS President during the previous month and with a subsequent letter (226) dated 2 September 1999, i.e. after the date of the tribunal hearing, advising of appointment then by the Lord Chancellor under the new arrangements. At all events, in relation to tenure, the note provides:-
"6. The appointment of part-time panel members is initially for a period of one year. Subject to satisfactory performance during that period, appointment thereafter is on a 3 year cycle.
"7. Part-time panel members are required to give a commitment to sit a minimum number of appeal tribunal sessions per year. The minimum, subject to the work being available, is as follows:-
Medically qualified panel member –  sessions per year." (A session being 3.5 hours)
"8. The Lord Chancellor may suspend or terminate the appointment at any time if, in his opinion, the holder becomes unfit to perform the duties of the office by reason of inability or misbehaviour"
In relation to impartiality, the note provides:-
"22. A part-time panel member should not sit on an appeal tribunal in circumstances which might give rise to doubt about his or her impartiality, i.e. at the hearing of a case if:
(a) he or she has any personal, professional or pecuniary interest in that case …"
- The letter of appointment by the Lord Chancellor dated 2 September 1999 (226) provides for a 3 year term, and also states:-
"The appointment is made on the understanding that there is no legitimate entitlement to renewal upon it's (sic) expiry. Whilst the Lord Chancellor would normally hope to do so, you should be aware that this is not always possible.
"The Lord Chancellor may remove a person from the panel on the grounds of incapacity or misbehaviour.
"I would like to take this opportunity of reminding you of the minimum and maximum sitting levels, which are 20 and 50 days respectively…"
- A statement of 'Terms of Conditions of Service and Terms of Appointment' applicable to part-time medical members, dated May 2000 (227-233), apparently tells us the current terms, although it suffers from the paragraph numbering going most remarkably awry. Under the heading, 'Limitations on Sittings/Practice', this provides:-
(229) "15. As a general principle a Medical Panel Member should not sit on an appeal Tribunal at a particular hearing centre if they are liable to be embarrased (sic) by doing so.
"16. A part-time judicial office holder should not sit on a case involving his own practice or patient, or otherwise where to do so could give rise to the perception of prejudice in the administration of justice. They should comply with the existing case law governing pecuniary or other interests in deciding whether to declare an interest in, or stand down from, a particular case.
"17. A part-time judicial office-holder should not sit on a case if he has a personal, professional or pecuniary interest in that case…"
Further on, under 'Outside Interests', the statement provides:-
(231) "15. A judicial office holder is expected to refrain from any activity, political or otherwise, which would conflict with their judicial office or be seen to compromise their impartiality, having regard for example to the comments of the Court of Appeal in the case of Locabail. In the event of any doubt an office holder should contact Judicial Group for advice…"
- In around November 1999, the Tribunals Appeals Service ("TAS") advised Dr A (and presumably other medical members) that it had been agreed that a doctor who was a salaried SEMA employee could not sit as a tribunal member (225). However, a doctor used on a sessional basis (Dr A's position) could sit (provided there has been no involvement in the individual case), except that a doctor preparing incapacity and all work test reports could not sit on a tribunal hearing AWT appeals. This is understood to be because such a test would be carried out in and with assistance from a DSS office. Dr A was asked to indicate whether she worked for SEMA as an EMP for either incapacity benefit or disability living allowance, attendance allowance or disability working allowance purposes.
- There was and is no judicial oath or other formal undertaking by medical members of appeal tribunals to carry out their tribunal duties in a judicial manner.
- The responsibility for summoning members of the panel to tribunal sittings, and therefore for the selection of members of the panel to sit, is with appeal tribunal clerks. Clerks are employed by the Benefits Agency, assigned to the tribunal service.
- A table of Dr A's tribunal attendances (293) from 1994 onwards shows her to have been attending tribunal sittings in 1998, 1999 and subsequently, at a rate of around one session per week.
- We were also provided with a copy of proposed new terms and conditions of service for medical members, dated December 2000 (260-266), but have not paid any attention to these in reaching our present decision.
(ii) As Examining Medical Practitioner
- Dr A worked as an EMP providing DLA reports from 1990 until 30 September 2000. She provided an average of four such reports per month. Since 1995, she has also provided reports for incapacity benefit: before 30 September 2000 she did this work for four sessions per week; after that date, seven sessions (a session being 3.5 hours). By July 1999 these engagements were under the sessional contractual arrangements described below. It is to be inferred that until the introduction of these arrangements in 1998 she was directly engaged as part of the Benefits Agency Medical Services, although presumably also on a sessional basis. When the extent of these engagements is added to the average one session per week sitting on tribunals, it is clear that Dr A, both at the time of the tribunal and since, spent the majority of her working week either examining claimants and preparing reports or sitting on tribunals hearing DLA and similar appeals. There is no information before us as to whether she carries on any other medical practice, but if so it can only be for a small proportion of the working week.
- As noted, in 1998 the Department of Social Security (DSS) contracted out the provision of medical reports in relation to claims for a number of types of benefit to SEMA. The obligations and responsibilities undertaken by SEMA are described at some length at 247-250. Thus, standards of qualification and experience of medical personnel were imposed. SEMA were required to provide training to ensure the requisite levels of knowledge and skills. Reports were required to be 'Fit for Purpose' in accordance with a number of listed requirements, the first being 'fair and impartial'. Doctors with any of a number of specified forms of connection or previous involvement with individual claimants were excluded from examining those claimants. Medical advice given was to comply with a number of specified standards. We feel that these requirements prescribed generally acceptable standards of quality and fairness in the provision of such reports.
- SEMA themselves employ a number of doctors full-time on work for the DSS. In addition, however, SEMA have contracted with Nestor and its subsidiary not to provide reports, but to provide a pool of doctors engaged on a sessional, fee-paid basis. This is the position Dr A held. Doctors, including Dr A, who had formerly worked directly for the Benefits Agency Medical Service, were invited in 1998 to apply for new contracts with Nestor.
- We have been provided with a specimen contract between Nestor and a sessional doctor such as Dr A (267-279). The introduction makes clear the parties' agreement that the contract is a contract for services rather than service, without obligation on either side. We think that some of the detailed provisions rather reflect a contract of employment. Section 3 deals with 'Service Standards and training', including the following provisions:-
"3.1 The BA have established strict standards, guidelines and procedures for the Services. The Doctor agrees that he/she will comply with these at all times when performing the Services…
"3.2 Prior to taking up the duties, and additionally during the period covered by this agreement the Doctor will be expected to undertake such training, instruction, testing and monitoring as shall be reasonably prescribed to ensure thorough familiarity and compliance with all Standards procedures and guidelines
"3.3 This agreement will be conditional on successful completion of initial and update training and on formal appointment or approval by the Chief Medical Adviser of the DSS, on behalf of the Secretary of State.
"3.4 In addition to explicit standards, the Doctor has a general duty and agrees to exercise all reasonable skill and care in performing the Services and at all times to maintain the highest professional standards, in accordance with the General Medical Council guidance on good medical practice, as updated from time to time.
"3.5 Employees of SEMA Group and [Nestor] are responsible for monitoring the Standards of Services which the Doctor provides. In relation to medical issues, monitoring will be performed by appropriately qualified medical staff. [Nestor] will notify the Doctor if at any time his/her Services are unsatisfactory and what is required to rectify the situation.
"3.6 It is essential that examination reports meet the Standards and are, in the opinion of the BA, fit for purpose in all respects. If the Doctor presents an examination report which fails to meet the Standards required and results in rejection by the BA he/she shall correct the report without further charge to [Nestor]….Failure to correct a report within the required time will constitute a serious breach of this Agreement and will be handled in accordance with the [Nestor] Dispute Resolution Procedure."
Section 7 has provisions about 'Conflict of interest' similar to those related above in relation to SEMA, i.e. related to involvement or connection with individual claimants. Section 15 and a separate document (277-279) deal with termination and dispute resolution procedure, which is set out in detail, distinguishing between 'management issues' (which we note include 'relationships with colleagues'), 'contract standards' and 'professional issues'.
- We have not been given much further information on the actual working arrangements. It seems that as between DLA and 'All Work Test' reporting there may be this difference: in the former examinations are at claimants' homes whereas in the latter they take place at a Benefits Agency medical centre (and apparently still do so under the contracted arrangements). The extent of contact with Benefits Agency staff, or with other SEMA or Nestor doctors, is not clear.
(iii) Other circumstances
- Mr Collins produced, albeit rather late in the day, two examples (371,372) of a practice within Corunna House, Glasgow. It was accepted that Dr A carried out AWT examinations there. Doctors carrying out such examinations for IB purposes had available to them a pro forma note for use where claimants were also in receipt of DLA (or attendance allowance ("AA")). If the doctor noted degrees of capability which cast doubt on the claimant's entitlement to these other benefits he could report to the DLA/AA Team Leader, in the words of the form, "You may wish to consider a Secretary of State review/fraud referral in this case". He could also provide the reference to the incapacity benefit report, and fill in details, for example in regard to the claimant's walking ability being inconsistent with entitlement to the mobility component of DLA. We accepted this information only to the extent that it was also accepted on behalf of the Secretary of State. His enquiries during the course of the hearing indicated that SEMA had known nothing of this practice and had given no instructions to EMPs to give such advice but that the form, nonetheless, had been in use for some years but only in Glasgow. The practice there was for such forms to be signed by the EMP and passed directly to the DBC (Disability Benefits Centre) for further action. The two forms produced to us, signed by a doctor other than Dr A, were dated 21 January 1999 and 31 August 2000. The latter (371) was printed on Medical Services (the trading name of SEMA) note paper (which incidentally shows their address as Corunna House but also reproduces the 'Social Security' logo). Enquiries had not revealed any similar practice in other areas of the UK. There was no suggestion that Dr A had completed such reports, although she may of course have done so.
- We were also referred to an article in the British Medical Journal (Career Focus), March 1999 (254-259). Disability assessment medicine was described as:-
"…an emerging speciality which brings together aspects of social security medicine, occupational medicine and insurance medicine….the speciality primarily concerned with the medical assessment of individuals in order to provide objective medical advice to third party decision makers…
In relation to incapacity benefits, the advisory role was said to fall into two main areas, advising on paper evidence and examining clients for the purpose of providing advice. There was a medico-legal basis to much of the work. In relation to career structure, the article distinguished between the "vast majority" carrying out the role in a part-time capacity and the "250 or so" full time doctors employed providing services under contract, i.e. the SEMA employed doctors. The article identified advantages and disadvantages, from the career point of view, of this speciality, including, amongst the perceived disadvantages, that it was "not perceived as 'proper' medicine by healthcare colleagues." There thus appears to be a degree of speciality, and there is also a distinction between the particular involvement of these doctors who are used, trained and instructed by SEMA and Nestor and the normal work of other doctors such as general practitioners.
- We also had information about the extent of involvement of general practitioners (245-256). We were told that all UK doctors engaged in National Health Service clinical practice, ie all general practitioners and NHS hospital doctors, were and are required to provide medical reports and advice to the DSS in relation to their own patients who claim certain incapacity or disability benefits. They receive no separate remuneration for this. In addition almost all UK doctors also provide reports and opinions about their patients on an item of service basis in relation to matters not covered by their NHS terms of service. (We note that the regulations referred to in the Secretary of State's submission in relation to this matter are in fact English regulations, the NHS in Scotland having been for many years subject to separate regulation and indeed now being a devolved function. We have no reason to think that the position in Scotland is materially different.)
- It is appropriate to place the parties' arguments on independence and impartiality under Article 6, and on apparent bias, in context by recording the position about certain matters which had been canvassed at the hearing before the Deputy Commissioner.
- We have not thought it necessary to determine whether the disposal of an appeal against a decision to refuse a claim for DLA is a 'determination of civil rights and obligations' within the meaning of Article 6(1). On behalf of the Secretary of State, there was no argument to the contrary. Having considered whether we ought to invite submissions on this matter, we decided to proceed in the present appeal on the basis that the appellant's appeal is a type of proceedings which comes within that Article.
- The position about the possible issue of waiver is similar. On the basis that he had no factual dispute with the appellant's representative's explanation as to why the appellant had not objected to the composition of the appeal tribunal at the hearing before it, the Secretary of State indicated that on this issue also he did not wish to make any argument. We note that the application, in cases brought before the European Court of Human Rights, of principles in relation to the non-exhaustion of domestic remedies is necessarily slightly different from the consideration of an issue of waiver when it arises in a UK court. We had some slight concern on the matter of waiver, but as the Secretary of State presented no argument in respect of it we propose to say no more about it.
- It should also be noted that there is no suggestion that the appellant would not be a 'victim' if breach of Article 6 were established.
- It is also necessary to outline the position about Scots domestic law on bias, which rests on application of rules of natural justice at common law. This, and the position in English law, were raised in the Deputy Commissioner's direction. In the event, the common law has come to play an important part in our considerations. There was in fact no dispute between the parties on the formulation of the test of objective bias in Scots law, which, they also agreed, was the appropriate law for us to apply. Parties were, however, in dispute as to application of the test. While it is not for us in this appeal to offer a concluded view on English law, we were referred to recent authority from which it appears that, under reference to the jurisprudence of the European Court of Human Rights, the position in England may now, happily, be on all fours with that in Scotland.
- We have also found it necessary to consider the extent to which the issue of the independence, as opposed to the impartiality, of the appeal tribunal, arises under common law.
- We turn to consider the parties' submissions before the Tribunal, which fall under the following six heads:-
(i) Article 6;
(ii) Common law test of bias;
(iii) Common law on independence;
(iv) Application to circumstances of the present case;
(v) Adequacy of reasons given; and
(vi) Form of directions to new tribunal in the event of appeal being allowed and remitted for determination afresh.
Submissions: (i) Article 6
- Mr Collins for the appellant first addressed the issue of retrospectivity of the Human Rights Act 1998 at some length. Put very shortly, his argument was that while he accepted that he could not competently claim simply a breach of Article 6 by the appeal tribunal, in its decision before October 2000, the Commissioners are a public authority who themselves have a duty under Section 6 of the 1998 Act. Compliance with Article 6 involves looking at the proceedings as a whole including the appeal to the Commissioners; and therefore in hearing an appeal after October 2000 the Commissioners are obliged to consider whether refusal of the appeal will result in a breach. Thus, he argued, he was not seeking any retrospective effect for the provisions of the 1998 Act. He placed considerable reliance upon this argument.
- Mr Collins first referred to the general approach to interpretation of the 1998 Act. The purpose of the Act was to 'bring rights home', ie provide a remedy in domestic courts for rights which they already had under the Convention ('Human Rights: The 1998 Act and the European Convention', Grosz et al., paras. 1.06 – 1.07). The courts should therefore be slow to adopt an interpretation which denied them jurisdiction to determine whether there had been a violation of these rights rather than make it necessary, in order to enforce the right, to apply to the Strasbourg court. Against that background, compliance with Article 6(1) was to be judged as against the proceedings as a whole.
- Mr Collins referred in detail to Sections 6 and 7 of the Act. Both the appeal tribunal and the Commissioners were 'public authorities', being 'tribunals' within the meaning of the Act. It was unlawful for either to act in a way which was incompatible with the 'Convention rights', which were described but not prescribed by the Act. Section 7(1) provided two ways of claiming that a public authority had acted in a way made unlawful: Section 7(1)(a) envisaged a new form of proceedings, but Section 7(1)(b) made the claim available to any party in 'legal proceedings' which include an appeal against the decision of a tribunal. Under Section 22(4), a claim relying on Section 7(1)(b) could not be brought in respect of an act taking place before 2 October 2000 except in proceedings brought by the public authority. Accordingly, he could not, and did not, rely on Convention rights to claim that the act of the appeal tribunal was made unlawful by Section 6(1). Mr Collins did not, however, disagree with a suggestion put to him that in asking the Commissioners to comply with the duty under the Act he was relying on Section 6 and it would only be if we failed to do so that he would need to look to Section 7, in further proceedings. On retrospective application of the Act, he referred to R v DPP, ex p Kebeline  4 All ER 801, per Lord Hobhouse at 858c, and R v Benjafield, 21.12.2000, Court of Appeal, at pages 17 to 19.
- Next, Mr Collins examined the scope of the obligation on the Tribunal of Commissioners to reach a decision compatible with the appellant's Convention right under Article 6(1). Determination of the appellant's civil rights and obligations was by both the appeal tribunal and the Commissioners. If the appeal tribunal was not an independent and impartial tribunal, there would be no breach of Article 6(1) if its decision was subject to subsequent control by a judicial body with full jurisdiction and which did provide the guarantees of Article 6(1) (Tehrani v UK Central Council for Nursing, 25.1.2001 - Lord Mackay of Drumadoon, at paras. 55-60; County Properties Ltd. v Scottish Ministers  S.L.T. 965, Lord Macfadyen, at para. 24). Full jurisdiction involved not only jurisdiction to consider a complaint of a lack of impartiality or independence but also jurisdiction to quash the impugned decision (Grosz et al, at pages 121, 237; Kingsley v UK, 7.11.2000, ECHR, at para. 58). Therefore there would be a breach of Article 6(1) if the appeal tribunal were not properly independent and impartial and the Commissioners did not allow the appeal and remit to a differently constituted tribunal.
- Finally on this matter, Mr Collins considered whether Section 6(1) of the 1998 Act might be dis-applied by Section 6(2)(a) because as a result of primary legislation we, the Commissioners, could not act differently. Mr Collins was here referring to the ground of appeal to the Commissioners under Section 34(1) of the Social Security Administration Act 1992, viz. "….that the decision of the tribunal was erroneous in point of law". He referred to the types of errors of law identified in R(SB) 11/83. He submitted that a retrospective change in the law could render a decision, however correct when it was made, erroneous in law (CAO v McKiernan, 8.7.93 Court of Appeal, R(F) 1/95); as could reliance by an appeal tribunal on a regulation subsequently held not to have been validly made (CAO v Foster  AC 754, per Lord Bridge at 766H). He also prayed in aid, in the interpretation of Section 34(1), Section 3 of the 1998 Act, the obligation to 'read down' UK legislation, whether primary or secondary, and give effect to it in a way which is compatible with Convention rights 'so far as it is possible to do so'. It was possible to read 'erroneous in point of law' as also including 'incompatible with rights under the European Convention of Human Rights'. In this he was not, he said, asking us to interpret a piece of legislation under which the appeal tribunal had made its decision and was thus not seeking to apply Section 3 with retrospective effect (c.f. Samuel Smith Old Brewery (Tadcaster) v City of Edinburgh Council, 3.11.2001, Lord Marnoch, at para. 11).
- On the Article 6(1) right itself (to determination…. "by an independent and impartial tribunal"), Mr Collins submitted that the correct approach was to establish the principles and then apply them to the facts of the particular case. In determining whether a tribunal can be said to be independent, regard must be had to (i) the manner of appointment of its members, (ii) their term of office, (iii) the existence of guarantees against outside pressures, and (iv) whether the body presents an appearance of independence. Impartiality had two aspects, viz. (i) subjective freedom from bias or personal prejudice (not suggested in this case) and (ii) impartiality from an objective viewpoint, ie offering sufficient guarantees to exclude any legitimate doubt in this respect. Although the concepts of independence and impartiality were often linked, and appropriately examined together as would be appropriate in the present case, independence was an additional and important substantive requirement and not just a means of achieving impartiality or a perception of impartiality. (Grosz et al., page 240; Starrs v Ruxton  JC 208; Clancy v Caird  SC 441; (Director General of Fair Trading v Proprietary Association of Great Britain & An'r , 21.12.2000, Court of Appeal, at paras. 70 to 83; Hoekstra v HMA. 2000 JC 387; Sramek v Austria (1984) 7 EHRR 351; Belilos v Switzerland (1988) 10 EHRR 466; Langborger v Sweden (1989) 12 EHRR 416; Schuler Zgraggen v Switzerland (1993) 16 EHRR 432) Lack of independence of one member of the appeal tribunal would be sufficient to vitiate the decision of the whole tribunal (Hoekstra, at para. 24)
- In applying the test of objective impartiality, Mr Collins submitted that the court (here this Tribunal) had to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear or apprehension that the judge (here Dr A) might not have been impartial; the material facts are not limited to those apparent to the applicant, but are those which are ascertained upon investigation by the court, such as at our hearing. An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice. His submission was that in the circumstances before us, Dr A's position and history as both EMP and DLA tribunal member raised such a legitimate apprehension.
- Mr Brodie submitted that the appellant is not entitled to rely on any of the provisions of the 1998 Act to justify allowing his appeal. Section 6(1) was not in force at the time of the appeal tribunal hearing, so the actings and constitution of the appeal tribunal were not unlawful under that provision - Section 7(1) also could have no effect in relation to the actings of the appeal tribunal. The attempt to rely on Section 6(1) in relation to the actings of this Tribunal was defeated by Section 6(2), because our jurisdiction is limited to issues as to whether the appeal tribunal's decision was erroneous in law. It was not possible to read Section 34(1) of the Social Security Administration Act 1992 otherwise and to attempt to pray in aid Section 3(1) of the 1998 Act, the duty to interpret, in the interpretation of Section 34(1) would be to give Section 3 a retrospective effect which it does not have.
- Mr Brodie stressed that this appeal was about the position of the appeal tribunal and not about any alleged acting of this Tribunal. Before the 1998 Act came into force, it was not unlawful for a public authority such as the appeal tribunal to act in a way which was incompatible with a Convention right. Section 7, which deals with remedies where a public authority has acted or proposes to act in a way made unlawful by Section 6(1) was therefore of no relevance. Section 22(4), which specifically provides that Section 7(1) is not to apply to an act taking place before the Act came into force, except where the proceedings were brought by or at the instance of the public authority, prevented the application of either Section 7(1)(a) or Section 7(1)(b) in the present appeal. Although provisions have now been made in Scotland for Section 7(1)(a) proceedings (The Human Rights Act 1998 (Jurisdiction) (Scotland) Rules 2000, SSI. No.301, the application of which in the present non-devolved context may raise another question), this appeal, which itself was commenced before the Act came into force, could in any event not be seen as such proceedings. Reference was made to R v Benjafield; R v Secretary of State for Home Department, exp Mahmood, 8.12.00, Court of Appeal; Willow Wren Canal Carrying Company Ltd. v British Transport Commission  1 WLR 213; R v DPP exp Kebilene, per Lord Steyn; and Clayton & Tomlinson, 'Law of Human Rights', at paras 3.38, 3.75, 22.03-04.
- As Mr Collins had anticipated, Mr Brodie met the argument based on looking at the procedure as a whole in accordance with the Article 6(1) jurisprudence by referring to Section 6(2) of the 1998 Act and Section 34(1) of the Social Security Administration Act 1992. The appeal tribunal had not been in error of law for failing to be Article 6(1) compliant. Section 3(1) could not be relied on in this way for a number of reasons : the section itself accepted that it will not always be possible to read and give effect to legislation in a Convention-compatible way; the interpretation contended for gave Section 3 a degree of retrospectivity which was not warranted; there was a general presumption against retrospectivity; and the specific but limited provision of retrospectivity conferred by Section 22(4) argued against any greater degree of retrospectivity in the Act. Reference was made to R(SB) 11/83; R. v Benjafield at p. 20; and Samuel Smith Old Brewery (Tadcaster),supra. Mr Brodie, however, also very properly drew our attention to observations (although obiter) by members of the Court of Appeal in ((J A Pye (Oxford) Ltd. & An'r v Caroline Graham & An'r, 6.2.2001 at pp.16 and 18, to the effect that the Section 3 principle of interpretation can be relied on in an appeal heard after the Act has come into force, even although the decision appealed against was made before the Act came into force. He suggested that these observations were not fully reasoned and in any event should not be applied in the present case.
- As an alternative in relation to reliance on Section 3, Mr Brodie submitted that in any event Section 34(1) was Convention-compliant. Breach of natural justice was a recognised error of law : if objective bias, considered at common law under the head of natural justice, provided the same protection as under the Convention then there was no need to resort to Section 3 and so no need to look to the 1998 Act at all.
- Mr Brodie did not express any disagreement with Mr Collins' submissions on the principles to be applied to the Article 6(1) right to an independent and impartial tribunal.
Submissions: (ii) Common law test of Bias
- On the possible application of a common law test of bias, Mr Collins submitted that Scots law should be applied. The test was whether or not the fair-minded lay observer, with knowledge of the facts as opposed to knowledge of the law, would entertain a reasonable suspicion or apprehension of bias on the part of (here) the tribunal member, whether or not such bias had actually existed. This was in line with the Convention test of impartiality. The test in R v Gough  AC 646, which had been in use in England, had been criticised, and now, in the Director General case, modified to bring it into line with the Convention (and accordingly also Scots law).
- Mr Collins referred to the category of actual bias, including the important sub-category of interest in the outcome. He referred to Wildridge v Anderson 1897 25R 27, per Lord Moncrieff at page 34, which had been applied in CSDLA 855/97, a case in which the examining medical practitioner had been in the same practice as the medical member of the tribunal; and also to Locabail (UK) Ltd v Bayfield Properties Ltd, Etc  1 All ER 65, at para. 8. As far as apparent, or objective, bias was concerned, the Scots law test was described in Bradford v Mc Leod 1986 S.L.T. 244 and in Hoekstra, at page 399D-F.
- Turning to the English test, Mr Collins submitted that although Lord Hope had indicated in R. v Bow Street Magistrates, ex p Pinochet Ugarte  1 All ER 577 at page 595e that the result was likely to be similar in each country, the test in R v Gough ('real danger of bias') was different and had been criticised, in particular by the High Court of Australia in Webb and Hay v The Queen (1994) 181 CLR 41. Such a "real danger" test, if applied by a judicial body, would come close to one of actual bias, and failed to give sufficient attention to the objective test and to the rationale, which is the public requirement for an appearance of impartiality. In a case of dispute, the court should not resolve that, and the reasonable bystander should have both views before him. R v Gough was out of line with the Convention test. However, the Court of Appeal had reviewed the position in the Director General case and concluded, at para. 85, after its consideration of the Convention cases, that a modest adjustment was called for, to make it plain that the test was in effect no different from the test applied in most of the Commonwealth and in Scotland.
- It followed that cases in which the Gough test had been applied should not be followed. In particular, this Tribunal should not follow the approach of Mr Commissioner Mesher in CDLA/224/94. In that case, the Commissioner had held that there was no real danger of bias from the presence on a disability appeal tribunal of a doctor who also held an appointment as an 'adjudicating medical practitioner' appointed under Regulation 28(1) of the Social Security (Adjudication) Regulations 1986 to determine 'disablement questions' under Section 45 of the Social Security Administration Act 1992. Mr Collins advanced further reasons for inviting the Tribunal not to follow that decision, pointing out that the submission that the relationship between the medical member and the Benefits Agency, a party to the proceedings, led to a danger of bias had not actually been argued in the case, and therefore the combination of that factor plus the suggestion that the member might look more favourably on reports by examining medical practitioners had not been considered. Further, the Commissioner had not given any reasons for rejecting the suggestion of apparent bias through the connection with a party, at para. 20.
- Mr Brodie agreed with Mr Collins' main submissions in this area, but submitted that it would be wrong to dismiss any cases based on applying Gough as automatically irrelevant. As Lord Hope had indicated in Pinochet, there was in practice unlikely to be any real difference between the verbal formulation of the test. It was only in cases where the individual judge (in Gough, a juror) gave an explanation which ruled out bias and that explanation was accepted by the court, that a different result might be reached: if an explanation was given but not accepted, the court would be standing in the same position as the outside observer.
Submissions: (iii) Common law on Independence
- As will be seen when the submissions on application of the tests are considered, Mr Collins, on the basis of submitting that the appellant was entitled to look to his Convention right under Article 6(1), argued that on an application of Convention principles, Dr A lacked independence, and that this was a factor to be combined with the considerations under impartiality or objective bias. The fundamental change which the Convention had made, he said, was to introduce the requirement of independence rather than to change the rules in relation to impartiality. He did not advance any submission about independence or considerations of tenure under common law. The Tribunal drew parties' attention to Mackay and Esslemont v Lord Advocate 1937 SC 860, a decision referred to in both Starrs v Ruxton and Clancy v Caird, as possibly having a bearing on this matter. Mr Collins, however, took the position that the common law did not have a requirement of independence, with the result that if the appellant was not able to rely on Convention rights, that part of his argument which related to Dr A's tenure, or lack of it, fell.
- Mr Brodie's position was similar: he also did not consider Mackay and Esslemont or accept that it had relevance to the argument on the basis of the common law. That said, in his submissions on the application of the test, which on his argument was only the test at common law, he did include references to Dr A's tenure, and to that extent apparently did allow this matter some relevance.
Parties' Submissions: (iv) Application to circumstances of present case
- Mr Collins presented arguments on both independence and impartiality or objective bias. Dr A was contracted to provide medical reports on behalf of the Benefits Agency, being reports in relation to the adjudication process; she had been contracted over a lengthy period of time; and she was apparently not involved in any other medical practice. The terms and conditions of her service as a tribunal member did not give her a sufficient degree of independence either from the Benefits Agency or from the doctor on whose evidence the case rested. The Benefits Agency was effectively a party to the appeal. Viewed objectively, both claimants and members of the public would tend to see Dr A as a 'Benefits Agency doctor' in a position of some dependence on the Benefits Agency and also as having loyalty to other examining medical practitioners such as the doctor who gave the report in the present case.
- Looking at independence, Mr Collins relied on Section 42(7) of the 1992 Act as meaning that Dr A held office at the pleasure of the President : the statute prohibited any form of security. Even while on the panel of members, there was no guarantee that she would receive any work. Her obligation to commit to 25 sessions per year was not a guarantee of engagement for as much as that. Good practice, or de facto security, did not secure Convention compliance. Applying the four aspects of independence under Article 6(1) these factors were important:-
(i) Manner of appointment – it was unclear whether the criteria and procedures set out at 221-224 had been followed through in her case.
(ii) Duration – her appointment was for one year only with a degree of uncertainty about re-appointment (218), and in any event her letters of appointment, or other indications of periods of service and protection against termination, would not prevail over Section 42.
(iii) Guarantees against outside interference – like temporary sheriffs, Dr A had no security – reference to removal only 'on cause' provides no guarantee, without some independent review and entitlement to be heard – Starrs v Ruxton, at pages 222F, 227A, 231-232. Without any obligation to provide engagements, there was no financial security. No doubt it was unlikely that deciding in favour of a claimant would place her position in doubt, but she might not know that, and a member of the public might not know that.
(iv) Whether tribunal presented an appearance of independence – 225 indicated a view by the President and the Lord Chancellor's Department that there were circumstances where there was a problem, ie the position of salaried SEMA employees, and also doctors doing incapacity work. It might be an issue of degree of closeness of association. Legal distinctions should not obscure the realities : Dr A had been providing DLA and IB reports for substantial periods of the week for 9 years. The arrangements with the Benefits Agency, SEMA and Nestor indicated a financial and professional relationship. Because of that relationship, Dr A was not independent and impartial as a DAT member. The mere fact of employment could not be the determining factor.
- On fairness and impartiality, Mr Collins submitted in reality there had been a dispute before the appeal tribunal as to whether the report of an Examining Medical Practitioner was to be preferred to competing medical opinion. As far as the claimant was concerned, that was the opponent's report. The BMJ article (254-259) suggested that there was a degree of difference between doctors providing disability assessments, principally for the DSS, and other doctors, and a perception that the former was not involved in 'proper medicine'. In the circumstances, there was the appearance of one Benefits Agency doctor agreeing with the views of another Benefits Agency doctor in an appeal in which the Benefits Agency had a direct interest.
- Mr Collins did not accept that the Department, through the Adjudication Officer, played a neutral role, ie that the Department was not in the position of a party. In this connection he referred to an article by Wikeley and Young, 'The Administration of Benefits in Britain : Adjudication Officers and the Influence of Social Security Appeal Tribunals', (1993) Public Law 238. He also cited Grainger v UK 1990 12 EHRR 469, a case in which a similar argument about the role of the Advocate Depute in criminal appeals was rejected; and Borgers v Belgium 1991 15 EHRR 92.
- Having examined independence and impartiality separately, Mr Collins submitted that the appellant's arguments on these should be taken together at the end of the day : the lack of tenure contributed to the problems caused by Dr A's links with, and lack of independence from, the Benefits Agency. However, even if the Convention could not be applied, in all the circumstances the presence of Dr A on the tribunal created a reasonable apprehension or suspicion of bias.
- Mr Brodie, referring in detail to the documentary evidence about appointment and service of tribunal members, and the relationship with SEMA, submitted that the objective bystander in possession of the facts would find that there was a structural independence of tribunal members from the parties to disputes before the tribunal, that Dr A was not an employee of the Benefits Agency or the Secretary of State and that the contractual relationship, the obligations imposed and the actual contact with the Benefits Agency were not such as to raise a reasonable apprehension of bias.
- Mr Brodie's main point on the system of appointment of tribunal members was that such was operated by an authority, the Independent Tribunal Service, which was independent of the Secretary of State and the Benefits Agency. Dr A's position was not as precarious as had been suggested, and insofar as there had been lack of security of tenure, Mr Brodie queried how significant that was when any termination would be by the President who was himself independent of any party to the tribunal. The statutory provisions on summoning members did not give rise to any reasonable fear of a medical panel member being 'frozen out'. Although Mr Brodie accepted that the clerk was employed by the Benefits Agency, neither the chairmen nor the clerks would have any information as to the terms of reports submitted by medical members when acting as examining medical practitioners. The policy on appointments indicated an independence from the parties to any appeal tribunal. The Guide (219-224) founded a legitimate expectation as to the length of tenure. Any decision to terminate would be susceptible to judicial review – Starrs, at page 240f. There was no evidence that Dr A's performance on the appeal tribunal would be the subject of monitoring by the Benefits Agency or that those who contracted with her for sessional reports would know of her decisions, nor vice versa. Perception was only relevant if it had objective justification: Starrs, per Lord Reed, at page 241e-h.
- On the nature of the relationship with SEMA, Mr Brodie submitted that the sessional reporting doctor was not to be characterised in the same way as an employee. Dr A was contracted to provide medical reports by a sub-contractor of a contractor to the DSS. Those who provide reports have no interest in the success or otherwise of claims: the nature of the obligations imposed as to the standard and quality of reports implies the reverse. Dr A was not to be seen as 'working for the Benefits Agency'. The requirement of approval by the Secretary of State of individual doctors related to medical performance against objective, known criteria. In training, there was no direct contact with the DSS or Benefits Agency. The Nestor contract imposed similar obligations to those imposed on SEMA.
- Mr Brodie rejected the suggestion that there might be sub-conscious bias towards the report of a fellow disability assessment doctor. It was unrealistic to suggest that because a witness had involvement in one area of medicine they would be prejudiced towards the evidence of another such doctor. Part-time sessional doctors were generally likely to have another professional interest. The argument ignored the fact that all general practitioners are involved in such work : it might be suggested that any doctor serving on a panel might be inclined to prefer evidence from another doctor in the same discipline. It would tend to bar any tribunal with an expert assessor of the same professional discipline as an expert witness. Mr Brodie referred to the discussion of the position of barristers, including their self- employed status, in Locabail at page 75. Examining medical practitioners were not the distinct group suggested as all doctors have some experience of dealing with, and assessing, the disabled. The provision of disability assessment reports was not such specialised work as to support a reasonable apprehension of bias. Nor was there such a close link between such medical members of a tribunal and either a party or the administration as was to be found in cases such as Sramek and Belilos, supra.
Submissions: (v) Adequacy of Reasons
- Mr Collins drew attention to the original ground of appeal (188), the Secretary of State's submission (196) and the further observations on behalf of the appellant (200). He adopted and elaborated slightly upon the grounds and further observations. The main complaint was that the tribunal's reasons for finding the appellant to be an unreliable witness were inadequate. Mr Collins reviewed the history of the appellant's previous claims, and awards, of the benefit, and then considered some of the medical evidence before the tribunal, viz. the general practitioner's report (130-132), the examining medical practitioner's report (140-164) and the consultant's report (171-172) together with the appellant's evidence recorded in the Record of Proceedings (176-179). The appellant had been seeing his doctor for hypertension, not osteo-arthritis, but the EMP had accepted that he had aches and pains attributable to osteo-arthritis, and the consultant had recorded that he had been unable, because of arthritis, to do an exercise tolerance test and that his walking was "very slow walking, no useful outside walking ability". The consultant's report had therefore been misrepresented in the summary of grounds given with the Decision Notice (175) and the tribunal were simply not justified in taking from the appellant's evidence that he 'could not make up his mind' : he could be seen at 179 to have given a clear enough answer to the question, 'Is it breathlessness or knees?' There was no other reason for finding the appellant to be an unreliable witness.
- Mr Brodie's reply on this issue was brief. It was the function of the tribunal to find the facts and to consider credibility and reliability, which were often matters of impression. The tribunal had been attempting to clarify exactly what the problem was, and could not be expected to say more about the impression it formed. They were justified in concluding that the appellant was unreliable and in preferring the EMP, who had particular expertise (upon which he then founded), and the general practitioner who saw his patient, to the consultant. They had clearly indicated the basis on which one body of evidence was preferred to another.
Submissions: (vi) Form of directions to new tribunal
- Mr Collins submitted that in the event of success of the appeal on the basis of the appellant's Convention right or apprehension of bias, the Tribunal should remit to a differently constituted tribunal for determination afresh - the functions transferred to 'unified' tribunals under Section 4 of the Social Security Act 1998 included power to re-hear cases - with a further direction about the composition of the tribunal. This should be that the medical member should not be either a doctor currently contracted or regularly engaged in the provision of reports as an examining medical practitioner or a doctor who had been so contracted or engaged during the period of one year before the hearing. Both the Secretary of State and the new tribunal would be public authorities with the obligation under Section 6(1) of the 1998 Act. To make this direction, rather than leave it to the tribunal and if necessary make a fresh challenge, would not be to subvert the Lord Chancellor's appointment. Mr Collins agreed that if the appeal were decided on particular grounds it could be preferable to put the case out for a further hearing to consider directions.
- On this matter, Mr Brodie contented himself with accepting the suggestion put to him that in the event of success on the major issue it would be appropriate to put the case out to consider any further direction: this would enable the Secretary of State to consider any course of action which might be appropriate in the light of the decision and the reasons for the decision.
(i) Article 6
- We prefer Mr Brodie's submissions to the effect that the appellant cannot in the present appeal invoke the Article 6 right by relying on provisions of the Human Rights Act 1998. In short, without necessarily disagreeing with Mr Collins' exposition of the application of Article 6 in the field of administrative decision-making, we consider that the focus of this appeal is the composition of the appeal tribunal. In our domestic courts, the constitution of the tribunal with the inclusion of Dr A as medical member cannot be said to have been unlawful as in breach of the appellant's Convention right without giving Sections 6 and 7 of the 1998 Act a retrospective effect which they do not in our view have apart from the limited extent provided for in Section 22(4). That specific, but limited, provision of retrospective effect reinforces our conclusion. We do not accept that in so holding we are ourselves committing an unlawful act.
- We also accept that Section 6(2) defeats Mr Collins argument. While we accept that breach of a convention right could amount to error of law under Section 34(1) of the Social Security Act, that cannot in our view extend to a breach prior to October 2000, because that would give the 1998 Act retrospective effect. We do not accept that Section 3(1) of the 1998 Act can be relied on in this connection, because we consider, again, that Section 3 does not have that retrospective effect. We do not accept that our obligation under Section 7 of itself implies any retrospectivity beyond that expressed in Section 22(4). The Court of Appeal in Pye, supra, was in our view considering a different retrospection issue, the question there being one of interpretation of other legislation by reference to Convention rights : here, the issue is not one of interpretation of another provision, but simply consideration of facts about the appeal tribunal.
- In amplification we may say that we consider that the clear provisions of Section 22(4) would simply be avoided by an appellate court, sitting subsequent to the coming into force of the Act, were it obliged to hold that there was a breach of the composite jurisdiction when no such breach had occurred at the time when the tribunal appealed against made its decision. Such a conclusion would, in our view, simply negate the clear purpose of Section 22(4) and achieve retrospection by the back door.
- In any event, it appears to us that the effect of our views on the common law test of bias and the common law treatment of the issue of independence may be that there is no breach of the Convention right. If, as will be seen to be our position, we are to apply a common law test of bias which is not materially different from the test of impartiality under Article 6 and can also at common law take in questions of independence, our jurisdiction, including as it does power to order that the appeal be heard afresh, may be wide enough to secure compliance with Article 6. Appeals to Disability Appeal Tribunals would appear clearly to be the type of proceedings in which the provision of a full appeal jurisdiction can secure such compliance. The matter is slightly more complicated, because there is also involved in this case a disputed issue of fact and our jurisdiction in relation to that is more limited. We are conscious, however, that the principles involved here are presently the subject of consideration by higher courts, and perhaps for that reason were not fully explored before us, although Mr Brodie's alternative submission in relation to Article 6, at paragraph 44 above goes some way in this direction.
(ii) Common law test of Bias
- We have no difficulty in accepting what was in effect a joint position on objective bias, firstly that sitting in Scotland in a Scottish appeal where an issue of common law arises, the law to be applied is Scots law, and, secondly, that that law is as explained by the High Court of Justiciary in Hoekstra, supra at page 399D-F, as follows:-
"In Bradford (Bradford v McLeod 1986 SLT 244) Lord Justice-Clerk Ross accepted as representing the law of Scotland on this matter the words of Eve J in Law v Chartered Institute of Patent Agents at page 289 where he said of the members of a council: 'If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing his duty. Nay, more (so jealous is the policy of our law of the purity of the administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are sufficient to disqualify although in fact no bias exists'. We note that in Livesey v New South Wales Bar Association at pp 293-294 the High Court of Australia indicated that it might be preferable to avoid the use of the word 'suspicion' in this context because 'it sometimes conveys unintended nuances of meaning'. 'Apprehension of bias' might be a more suitable expression."
The passage goes on to note Lord Hope's reference in Pinochet to that test as embodying the Scottish approach.
- We do not find it necessary to consider the position about actual bias, including actual interest in the outcome of the case, there being no such suggestion in this case. Further, while we have found Mr Collins' submissions on the English position useful in assisting our understanding of the issues involved in this area (and, as we have noted, Mr Brodie accepted the substance of Mr Collins' position on this), we do not think it necessary to explore it further. It is certainly a comfort in the Commissioners' jurisdiction to know that the obligation to apply Convention principles has apparently led to the test applicable in England being brought into line with not only the Convention but also the Scottish position (if indeed it was much different in the first place, which Lord Hope appears to have doubted.) What we think can also be said on a consideration of all the cases to which we were referred is that the law which we are applying is very much in line with the Convention approach.
- Accordingly, the test which we have to apply is whether the objective bystander, informed of all the circumstances before us, would have a reasonable apprehension of bias on the part of Dr A. If so, the decision of the appeal tribunal cannot stand.
(iii) Common law on Independence
- In our view, considerations of independence, including security of tenure, may be relevant under our domestic law as well as under the Convention, at least as part of an issue of bias.
- Independence, in relation to judges, may be general, through security of tenure, or it may refer to independence from the parties who appear before them, this latter being clearly bound up with issues of bias. Some cases may raise the question whether some connection between the person appointing and a party threatens the judge's independence, thus linking the two aspects. We consider that the requirement of general independence is embedded in Scots law (as, we imagine, also in English law) and not simply introduced by the Convention. As Lord Reed put it in Starrs at page 245H:-
"The critical importance of judicial security of tenure has been recognised in Scots law since at least the declaration in art 13 of the Claim of Right 1689 (cap 28, APS IX 38) that 'the changing the nature of the judges' gifts ad vitam aut culpam into commissions durante beneplacito' is 'contrary to law'."
Of course, when consideration has to be given directly to the lawfulness of a judicial appointment made under a statutory power, the question whether Parliament intended to innovate upon the principle has to be considered. Even then, in interpreting the statutory provision, any statutory interference has to be strictly construed. Mackay and Esslemont v Lord Advocate 1937 SC 760 demonstrates the importance of the common law principle. Two members of the Scottish Land Court, whose appointments were held to be judicial in character, successfully challenged not only conditions purporting to appoint them only during pleasure but also conditions requiring them to retire at age 65. No doubt such challenge by a person in the position of Dr A would be met by reference to Section 42(7) of the Act of 1992, but it does not follow that consideration of the degree of security of tenure which she enjoyed is not relevant as part of the circumstances which would be known to the hypothetical independent observer whom we have to consider. Whether that observer would consider it of any relevance is another issue, which we have considered in paragraph 87.
- Mackay and Esslemont was referred to in both of the Scottish 'temporary judge' cases. In Starrs (temporary sheriffs) there was no argument at common law. However, in Clancy v Caird (an unsuccessful challenge, again principally relying on the Convention right brought into domestic law by the Scotland Act 1998, of the position of a Temporary Judge of the Court of Session, who was held on a consideration of the circumstances pertaining to his appointment to have security of tenure for the period of his appointment) the common law was also argued. It received only brief consideration by the court as adding nothing to the case under the Convention. Lord Coulsfield said at pages 469I to 470C :-
"The argument, as expressed in the pursuers' written submission, was that the use of a temporary judge who did not constitute an independent and impartial tribunal was contrary to the common law rights of the parties….. This part of the argument did not seem to me to be pressed with much enthusiasm and I do not think that it requires extensive discussion. The authorities cited stress the importance of judicial independence and the importance of avoiding any appearance of partiality but they do not suggest any requirements different from or additional to those which arise from the Convention and the authorities under it. Accordingly, in my opinion, the same reasoning leads to the conclusion that the hearing of the case by Mr Coutts did not involve any breach of any common law rights of the pursuer."
This may not amount to a very full consideration of this issue, but it was specifically considered on the basis that the issue of independence arose in the same way under common law as under the Convention challenge without any indication of any different position at common law.
- Accordingly, we consider that in the task of applying the common law we are not constrained from considering issues of general independence or tenure in addition to the question of independence from the parties, in so far as they may be thought relevant.
(iv) Application to circumstances of case
- On the basis of the information available to us (and ex hypothesi also to the objective bystander) we have concluded that such a person would have a reasonable apprehension of bias on the part of Dr A even although we have no reason to think that Dr A was consciously biased. We think that the arrangements under which doctors such as Dr A were engaged to provide reports do ensure the provision of independent expert evidence on which it was entirely appropriate for the Benefits Agency to rely. However, placing ourselves in the position of the objective bystander, we consider that for one of these same doctors to be involved in assessing such reports prepared by other such doctors and then adjudicating in conflicts of evidence between such reports and other evidence causes reasonable apprehension of at least a subconscious bias. Accordingly, and whatever our own judicial view, we think it would be reasonable for an informed member of the public to think that justice may not be done in such circumstances.
- We accept Mr Collins' submission that the Benefits Agency must be seen as a party to such benefit appeals, even although the adjudication officer in written submission and – if he appears at the appeal hearing – did not play a partisan role. The Secretary of State clearly had an interest in the outcome. That interest may now appear more manifest by him having become the "opposing" party.
- It is therefore necessary to consider Mr Collins' submission that the doctors in this position are in effect 'Benefits Agency' doctors. In resisting this suggestion, Mr Brodie relied on three aspects of the arrangements: (a) the fact that these doctors are said not to be employed under contracts of employment; (b) the fact that engagement is at some contractual distance from the Benefits Agency; and (c) the detailed obligations as to standards and objectivity. We are not persuaded that either (a) or (b), taken on their own, would satisfy our bystander: while the carefully worded conditions of engagement by Nestor may lack the contractual mutuality of obligation which is necessary for a contract of employment, we think the bystander would see the doctors as engaged to do work for the Agency; and we also do not see that engagement through a contractor and then a sub-contractor, in itself, alters that view – it is a commonplace these days for workers to be engaged by employment agencies who are in the equivalent position to Nestor. However, when (c), the very detailed obligation in effect to work objectively to prescribed standards, is added to (a) and (b), we accept that the overall effect is to put the doctors, in their capacity as expert advisers to the Agency, in a position of professional independence. They are not, in our view, simply 'Benefits Agency doctors', but rather independent expert advisers, at that stage.
- The reports of doctors such as Dr A can therefore properly be relied upon and presented to appeal tribunals as independent reports. However, what is then found is that members of the class of doctors who have a special interest in and experience of this kind of work and who hold current engagements under the detailed Nestor conditions are sitting as members of tribunals considering the reports of others in the same position. We consider that doctors in this group are in a markedly different position from NHS doctors generally. The obligation of the latter to provide reports on their patients from time to time when called on to do so is in our view quite different from the doctors with the Nestor contracts. Such doctors are (very properly in their capacity as advisers to the Department), trained, approved and monitored to the Department's standards. They are a relatively small group. In our view the bystander considering situations in which other such doctors' reports are in competition with other evidence would have a real apprehension or suspicion that there may be a tendency to lean in favour of accepting the reports prepared by others in the class. We are thinking of situations where an EMP report is placed beside the appellant's oral evidence, or beside a consultant's evidence, both of which situations arose in the present case. There may of course be very good reasons to accept evidence which is objective and focussed on the correct issues in preference to that of interested claimants. There may also quite often be circumstances in which the evidence of other doctors, even consultants, can be seen to be less well focussed on the issues. However, the concern would be that a doctor in Dr A's position, because of the substantial current involvement in the same role as the reporting doctor, may start with an inclination to accept that evidence rather than objectively viewing the competing version. We may not necessarily take the same view ourselves, but if we find that our objective bystander would reasonably have that perception, we must apply the brocard 'Justice must be seen to be done'. We do so find.
- In reaching this view, we are distinguishing between the two roles, that of applying professional expertise in noting medical details and patient histories, examining patients and giving medical opinions, and that of assessment and adjudication between competing opinions. Reliance on professional objectivity is clearly very relevant to the first, but we think much less obviously so, in the eyes of the objective bystander, to the second.
- Although we recognise that it post-dates the appeal tribunal hearing, we have considered how the objective bystander would view the rulings of TAS (para. 14, supra) that salaried SEMA employees cannot sit as tribunal members and sessional doctors involved in incapacity benefit cases may not sit on appeals in relation to 'All Work' test. The reasons for these rulings have not been explained. In particular, we (and therefore our bystander) do not know why the line was drawn precisely where it was. We think the most that could reasonably be taken from this is that there was recognised to be a potential problem. Similarly, there is an indication of recognition of a potential problem in the ITS Management Handbook (para. 11 supra).
- We have considered whether the different stage in the claim history at which (normally at least) the sessional doctor advises the Agency is material. Normally, at the time the report is written, the claim has not become contentious. The situation is in that respect different from situations in which part-time judges or tribunal members may also have involvement in advising parties. We think it inconceivable that such a judge who regularly advises a party would not decline to sit. We are not at all sure that our objective bystander, considering the risk that the judge might be affected by bias in the way which we have identified, would draw the distinction between regular involvement advising in connection with disputes and regular involvement advising on claims before the Agency decides whether to grant them.
- In reaching our view, we have placed no reliance on the practice in Corunna House referred to in paragraph 24. There seems to us to be nothing untoward in that practice, and it does not affect our view of the arrangements for the provision of reports.
- The objective bystander may well think, as we do, that the qualifications of a doctor such as Dr A, and the experience of involvement in preparing reports, are useful attributes brought to appeal tribunals by such members. This should not, however, prevent the question as to the appearance of bias from being asked and answered. We should add that our view is based on current involvement in providing reports. There would not in our view be reasonable apprehension of bias from past involvement, at least after a reasonable 'quarantine' period.
- We do not think the reasonable bystander would distinguish between the types of claims arising out of disability but rather, in our opinion would have the same view of involvement of a Nestor doctor in DLA and IB cases, regardless of the type of reports in which the doctor was involved. We do not see any relevant distinction between the circumstances in which the 'All Work' test is administered and examinations for DLA carried out.
- We consider that the view of the reasonable bystander would be slightly reinforced by a consideration of Dr A's tenure as tribunal member. There is some slight significance in the fact that at the time of the appeal tribunal hearing Dr A had an appointment for only one year, terminable at will as provided by Section 42(7) with no guarantee of being called on. There might be some slight concern that such a member might be apprehensive about her position. However, that seems to us to be of very limited significance in relation to the point at issue, when it is appreciated that the appointment was made by the Independent Tribunal Service (now, under the 1998 Act, by the Lord Chancellor). The apparent link through the tribunal clerks does not in our view give rise to any further reasonable apprehension.
(v) Adequacy of Reasons
- We do not consider that there is any merit in the grounds of appeal and the submissions made in response to the Secretary of State's submission. The tribunal gave a clear expression of opinion as to why they preferred the opinions of both the examining medical practitioner and the general practitioner as opposed to that of the claimant. In relation to the unreliability of the claimant's own evidence that is dealt principally within the summary of grounds where the tribunal said:
"The Tribunal found [the claimant] to be a difficult witness. He could not make up his mind whether his knees or breathlessness was his main problem. He uses his nitrolingual spray only once a day half-way up or down to his back green to sit in the sun. There was a wealth of medical evidence to say that his condition was better than he claimed and only a report from Dr Dilawari to support him. Dr Dilawari is a cardiologist who did not examine [the claimant's] knees but accepted [the claimant's] claim to be unable to walk. The Tribunal therefore accept the view of the EMP and the GP who sees him regularly that [the claimant] can walk 200 yards slowly but without severe discomfort……."
- It is suggested in the response to the Secretary of State's submission that the fact that the claimant cannot point to one disability causing him difficulty in walking rather than another does not point to the claimant being a difficult or unreliable witness. It is suggested that it more obviously points to him being a person with interacting disabilities. That is however the view of the writer of the submission. The tribunal as the fact finding body came to a different conclusion. That is a matter which was within their province and there is accordingly no basis for the Commissioners to interfere.
- It is also submitted in the response that the tribunal had made no findings in respect of the lowest rate of the care component on the basis of attention for a significant portion of the day. However it is apparent from the decision notice that the only matters in respect of which the tribunal found that the claimant required attention in connection with impaired bodily functions was having a bath and possibly doing his laces. It is clear that on that finding the claimant's requirements for attention are very limited indeed and would not reach the extent of attention required to satisfy the conditions contained in section 72(1)(c)(i) of the Social Security Contributions and Benefits Act 1997 . In these circumstances what the tribunal said was sufficient for the purposes of setting forth the facts and reasons for their decision.
(vi) Direction to new tribunal
- In deference to the views expressed by parties as recorded in paragraphs 64 and 65 supra, we circulated our decision and reasons to afford an opportunity for submissions on the form of any proposed direction to the new tribunal. In the event we determined to resume the hearing. At it parties were similarly represented save that Mr David Bartos, Advocate, appeared in place of Mr Brodie. The hearing first considered a broad proposed direction which had the purpose of excluding from sitting as a member of a disability appeal tribunal any medical member who had within the previous year been an examiner reporting under a model contract with Nestor. We sought thereby to provide a clear guide on the selection of medical members and the avoidance of challenges which seemed likely to be taken if our ruling had rested simply on a finding that Dr A's particular involvement with Nestor work was objectionable. Thus, what of a doctor who did only 80%, or 50%, as much reporting work; or one with an involvement like Dr A but who had severed all Nestor connection for a month – or six? On this Mr Collins was content with our proposed direction. Mr Bartos, on the other hand, objected forcefully on behalf of the Secretary of State to the direction as being unnecessarily wide.
- Mr Bartos' primary position was that Commissioners had no power to direct those charged by Parliament with the selection of tribunal members as to how to perform that duty, which was a matter for their discretion. He first submitted, under reference to Sections 7, 14(8)(b) and (9) of the Social Security Act 1998 and Regulation 36 of the Regulations of 1999, that we had no jurisdiction to give directions about the composition of the fresh tribunal, beyond what was implied by the words of Section 14(9) ("subject to any direction of the Commissioner, a reference under subsection (7) or (8)b…shall be to a differently constituted tribunal"), which was confined to direction that one or more members of the original tribunal should sit again. Selection and composition of the members of the tribunal was for the President of the Appeals Tribunals: that selection could be judicially reviewed but we did not have power to give directions about it. We could, Mr Bartos submitted, direct each or any member of the fresh tribunal to consider whether there were any circumstances affecting him or her which would create in the mind of a reasonable bystander an apprehension of bias and if so disclose such circumstances and disqualify themselves.
- Mr Collins submitted that our proposed direction was competent. Mr Bartos' submission on competency, he said, represented an unwarranted narrow construction of Section 14(8) and (9): there was no necessary implication in Section 14(9) that the direction there referred to was confined to direction that original tribunal members should sit again. Sections 6 and 7 were empowering provisions, and were not in conflict with a power for Commissioners to direct about composition. The intention was to ensure that mistakes would not be repeated.
- In the event, we were persuaded by Mr Bartos that while our proposed direction would have avoided for other cases a repetition of the mischief identified above, it might have had the effect of unnecessarily precluding some unobjectionable tribunal members from sitting. Accordingly, we have resolved to confine our direction so as to avoid only a repetition of the precise mischief in this case and to leave other circumstances to other cases. Otherwise we reserve our position, being not fully persuaded by Mr Bartos that the power in section 14(8)(b) of the Social Security Act 1998 to give directions in the context of referring "… the case to the tribunal with directions for its determination." necessarily excludes any power to make a direction regulating the composition of a tribunal. However, we must expressly include an expectation that the tribunal authorities will hereafter themselves so select the members of tribunals as to avoid, so far as within their power, the need for any raising of a case for recusal.
- Lastly, we have to record that whilst it was circulating in less than final form this decision came to be released into the public domain. Suffice to say that it was thereafter sought by certain welfare rights officers and, we understand, has been used before appeal tribunals. We heard from parties through their Counsel the extent to which, they or their advisers had disseminated the decision. We do not wish to apportion blame, but it did seem to us that the limited purpose of the circulation and the unfinished form of the decision should have been enough to limit dissemination to rather less than occurred. On the other hand we accept that on any future similar situation there may unfortunately have to be given clear conditions about confidentiality, along the lines of the "embargo" before publication on judgements of the higher Courts.
- The appeal succeeds.
W M WALKER QC
D J MAY QC
J N WRIGHT QC
Date: 15 June 2001
|Dr A: the factual position
As tribunal member
As examining medical practitioner
Article 6 – Appellant's Submissions
Common law test of Bias
Common law on Independence
Application to present case
Adequacy of Reasons
Form of Directions
Common law test of Bias
Common law on Independence
Application to present case
Adequacy of Reasons
Direction to new tribunal