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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2003] UKSSCSC CSDLA_444_2002 (19 February 2003) URL: https://www.bailii.org/uk/cases/UKSSCSC/2003/CSDLA_444_2002.html Cite as: [2003] UKSSCSC CSDLA_444_2002 |
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[2003] UKSSCSC CSDLA_444_2002 (19 February 2003)
DECISION OF DEPUTY SOCIAL SECURITY COMMISSIONER
Commissioner's Case No: CSDLA/444/02
Oral hearing
Background
Appeal tribunal
Appeal to the Commissioner
"The tribunal states in their decision that they prefer the evidence of [Dr B] to the other two EMP's .
The tribunal states 'The Tribunal placed most weight on [Dr B's] report. He is experienced in carrying out assessments of functional impairment and is disinterested in the outcome.'
The other two EMP's involved presumably would have had the same training and would also have the same feeling of disinterest in the outcome.
[Dr B] is a Doctor who is an EMP and also a regular Tribunal member in Hamilton.
I would submit that for reasons similar to the [] decision CSDLA/1019/99 that the Tribunal has preferred [Dr B's] evidence to the other two equally qualified Doctors. I do not feel that they have given good enough reasons to justify doing this.
I would submit that there has been a breech of the rules of natural justice."
"In the grounds of appeal it is stated by the claimant's representative that:
'The Tribunal states in their decision that they prefer the evidence of [Dr B] to the other two EMP's. The Tribunal states ' The tribunal placed more weight on [Dr B's] report. He is experienced in carrying out assessments of functional impairment and disinterested in the outcome.
The other two EMP's involved presumably would have had the same training and would have the same feeling of disinterest in the outcome [Dr B] is a Doctor who is an EMP and also a regular Tribunal member in Hamilton.'
The Commissioner will wish to know that I have checked with the Appeals Service and can confirm that [Dr B] is indeed a regular tribunal member.
In my submission the alleged breach of natural justice [in that [Dr B] was not only an EMP but also a regular tribunal member] was seemingly not raised until the grounds of appeal were formulated. I do not support the claimant in her appeal. The claimant and her representative would have had copies of the appeal bundle before the tribunal hearing took place. It is clear that [Dr B's] report was not favourable to the claimant. If the claimant wanted to raise an objection to this report and cite the fact that [Dr B] was also a regular Tribunal member, then I submit that this should have been raised during the tribunal hearing.
In terms of providing adequate reasons for its preference it was incumbent on the tribunal to analyse the relevant evidence and give each piece its appropriate weight. These are purely matters for the tribunal and will not involve an error of law provided that there was enough evidence to support the tribunal's findings of fact; the tribunal weighed up the evidence in a rational way and finally, that the tribunal provided adequate reasons as to why one aspect of evidence was preferred as opposed to another. In my submission the tribunal have discharge this duty. In their decision the tribunal qualified their reasons by stating:
'He [Dr B] saw the appellant on an average day shortly before the decision was made. She confirmed in writing that the statement he recorded was correct There are more average or good days per week than bad. The tribunal accepts the terms of the second report as representative of the appellant's usual condition when the decision appealed against was made.'
Further,
'The tribunal found the appellant's description of a severely limited ability to walk and self-care for years to be inconsistent with the bulk of the medical evidence and the lack of specialist input. For example, she told the tribunal that she had been spending 2 to 4 days a week in bed since around 1980 yet [Dr I] and [Dr B] reported no muscle wasting and found little or no functional impairment.'
If the Commissioner accepts my submission that the tribunal have not erred in law, I invite him to dismiss this appeal for leave to appeal."
"One of the grounds of appeal is that Dr B was an Examining Medical Practitioner, who sat regularly as a tribunal member in Hamilton. Accordingly this was not a fair and impartial hearing. Reference is made by the claimant to the Decision of the Commissioners in CSDLA/1019/99. That case held that a tribunal was not impartial where a member of tribunal also acted from time to time as an Examining Medical Practitioner.
In AA Lawal v Northern Spirit Ltd (2002) EWCA Civ 327 the Court of Appeal held that no real possibility of bias existed when a part-time judge of the Employment Appeal Tribunal appeared as an advocate before the Tribunal chaired by another judge sitting with two lay members, one or both of whom had previously sat with the part-time judge. The court went on to say the position might be different were advocates asked to sit with such frequency that lay members might be led to look on them as judges who appeared as part-time advocates rather than the reverse.
The present case is the converse of CSDLA/1019/99, but is might be said to raise similar issues. It is not the same as AA Lawal because the EMP is an expert witness and not an advocate and this raises different considerations. AA Lawal also raised the issue of the regularity of sitting as an important factor.
The Secretary of State accepts that the Examining Medical Practitioner sits regularly as a member of the tribunal.
The parties should be prepared to address the Commissioner at the oral hearing on the issues raised by those two cases in the context of the claimant's ground of appeal.
In his submissions the Secretary of State suggests that the claimant waived her right to object to Dr B. Waiver requires there to be a full knowledge of the facts. I do not know if the claimant knew at the time of the hearing that Dr B sat regularly on the tribunal or if she was asked if she wished to waive an objection on this ground.
The claimant is to provide information on what knowledge her representative had in regard to Dr B's sittings on the tribunal.
The parties should have regard to the comments of the Privy Council in Millar v Dickson 2001 SLT 988 (PC) on the issue of waiver. Both parties should be prepared to make submissions at the hearing on this question of waiver."
"[The claimant] states that she was aware that she could object to the tribunal member if they were or had been an Examining Medical Practitioner for the Benefits Agency.
Mrs Boyd, Chairman, has referred to the Gillies decision in her notes as [Dr H], tribunal member, had been an Examining Medical Practitioner several years ago. We did not object to [Dr H]. It was not put to ourselves that we could object to the Examining Medical Practitioner's report completed by [Dr B], who still currently sits as a tribunal member."
The oral hearing
Preliminary matters
Submissions for the claimant
Submission for the Secretary of State
Adequacy of the Statement of Reasons
- the tribunal noted that Dr L saw the claimant on a day described as "sorer than average", while Dr B saw her on "an average day". They accepted that this report [Dr B's] represented the claimant's usual condition.
- the tribunal narrated the claimant's symptoms and found that her description of the severe limited ability to walk as inconsistent with the bulk of the medical evidence and noted that both Dr B and Dr I reported no muscle wasting or functional impairment;
- The GP reported her moving freely/walking normally when he saw her before her benefit was removed. The situation changed when he saw her for a report after that.
- The tribunal had given reasons why they discounted Dr L's report. It was in marked contrast to those of Dr B and Dr I. The report was based on what the claimant had told him and was on a worse than average day, so was "not regarded as representative of the claimant's usual condition";
- there was a comment on the claimant's challenges to the GPs evidence and the fact that she had described on fall as happening at three different times to different doctors.
- the tribunal had then said why the preferred Dr B's report the comment on which the claimant founded as showing bias.
Apparent bias
"102 In my opinion however it is now possible to set this debate to rest. The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 to reconsider the whole question. Lord Phillips of Worth Maltravers MR, giving the judgment of the court, observed, at p 711a-b, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At p 711b-c he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court's conclusions, at pp 726-727:
"85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
103 I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to "a real danger". Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
The Scottish test remained that approved in Bradford v Macleod 1986 SLT 244
, which had been approved in Hoekstra and by Lord Hope of Craighead in R v Bow Street Metropolitan Stipendiary Magistrates ex p Pinochet Ugarte (no 2) [2000] 1 AC 119 which was:
"This principle which applies to criminal trials also applies to persons performing judicial duties in a domestic forum. The rule was well expressed by Eve J. in Law v. Chartered Institute of Patent Agents ([1919] 2 Ch 276] at p. 289 where he said: "Each member of the council in adjudicating on a complaint thereunder is performing a judicial duty, and he must bring to the discharge of that duty an unbiased and impartial mind. 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 themselves sufficient to disqualify although in fact no bias exists." That dictum, in my opinion, also represents the law in Scotland upon this matter."
In Hoekstra paragraph [17] it was suggested that 'apprehension of bias" might be better than 'suspicion'.
"[9] The essence of the argument is that lay members of the Appeal Tribunal are colleagues of the part-time judges with whom they have sat from time to time; that such lay members might be subconsciously influenced by that previous professional relationship formed in the tribunal and by a sense of collegiate loyalty to him; and that, as the part time judge is the only legally qualified member of the tribunal, the lay members would tend to look to him for guidance on the law, thereby creating an opportunity for the development of a degree of authoritative personal influence by the part-time judge over the lay members."
This argument was rejected by Mummery LJ with whom Lord Phillips MR agreed (Pill LJ dissenting) who said:
"20. The Recorder objection amounts to no more than an assertion that a lay member might possibly be more disposed to accept the submissions of one party's legal representative than those of the other side, as a result of the professional experience of having sat on the tribunal with him in his capacity as a part-time judge. That is merely a speculative and remote possibility based on an unfounded and, some might think, condescending assumption that a lay member sitting with another judge on the hearing of an appeal cannot tell the difference between the impartial decision-making role played by a tribunal panel of a judge and two lay members and the adversarial role of the partisan advocates appearing for the parties."
Lord Phillips MR did qualify his approval by saying that there would be more substance in the concerns if the advocate sat with such frequency that it might lead the lay members to view him as a judge, appearing part time as an advocate, rather than the reverse.
Actual bias
Waiver
Reasons for my decision
Statement of Reasons
"In our view it is necessary in a case of this kind that the informed reader, a person who knows what the proceedings are about and is perhaps a party to the proceedings, should be able to understand from the statement of reasons what the reasoning was that led to the decision. In this particular case we have no doubt at all that the reasons are both sufficient and intelligible."
Actual bias
Apparent bias
- that Dr B regularly sat as a member of the tribunal at Hamilton. Dr B had sat as a medical member at 191 sessions in the preceding two years. On its own this is not relevant.
- He had sat with the chairman on 22 sessions, the member on 14 sessions and with the chairman and the member together on 3 sessions a total of 39 sessions out of 191. He had not sat with the medical member, no doubt because a tribunal does not usually have two medical members. This information provides material as to a proximate relationship between Dr B and the actual tribunal members.
- I am prepared to accept from the representative's submission that "hundreds" of Dr B's reports were considered by the Hamilton tribunal, that it is likely that the members of this tribunal had had to consider some reports from Dr B on a number of occasions in the preceding two years.
- that the medical member was a former EMP, up to June 2001, and this tribunal sat in February 2002;
- the terms of the Statement of Reasons.
I did not have the full information that was available to the Tribunal of Commissioners that considered the issue in CSDLA/1019/99. I am told that the situation has changed since that case so I cannot rely on the information therein, if relevant, regarding the appointment of EMPs etc.
As objection to the medical member was waived, I am not concerned with any "relationship" between the medical member as a former EMP and Dr B, but only with Dr B's "relationship" with the chairman and the lay member.
"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."
I would have reached my conclusion independently of the decision in CSDLA/1019/99 for the reasons given above.
Waiver
"It is generally not open to claimants, who are dissatisfied with the way proceedings have been conducted, to sit back doing nothing awaiting the outcome of the decision, and when it is adverse to them, then and then only to complain."
As was noted by Mr Commissioner Rowland in CDLA/2050/2002 the comment is predicated on "generally" and that whether or not there has been waiver
"will depend on the circumstances of the case, but it will always be wise for the claimant to raise any complaint about the constitution of the tribunal at, or before, the tribunal's hearing, particularly in a case where the tribunal may reasonably be unaware that the claimant is concerned about its constitution."
Decision
(signed) Sir Crispin Agnew of Lochnaw Bt QC
Deputy Commissioner
Date: 19 February 2003
Note 1 At the hearing it appeared that Mr Brodie and I had different e-versions in that his copy had [53] paragraphs and mine, taken from the Courts Web-site had [50]. I have used the version I downloaded the day before the hearing as perhaps representing editorial revisals made by the court after the judgement was first handed down. [Back]