[2007] UKSSCSC CDLA_2379_2005 (01 March 2007)

CDLA/2379/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal held on 18 May 2004 is erroneous in law.  I set it aside.  I remit the case for rehearing by a differently constituted tribunal.  

2.	The claimant is a woman born in 1949.  She has, amongst other medical conditions, asthma, arthritis, diabetes and back pain:  she had a transient ischaemic heart attack in April 2004.  She made a claim for both components of disability living allowance on 12 October 2004.  The claimant’s GP gave a report on her condition on 20 November 2004.  On the basis of the claimant’s claim pack and the report of her GP, a decision maker disallowed the claimant’s claim on 8 December 2004.  The claimant appealed on 6 January 2005.  As a result the claimant was examined by an examining medical practitioner (“EMP”), Dr. X, on 12 February 2005.  A decision maker reconsidered the case in the light of Dr. X’s report and again disallowed the claimant’s claim.  The claimant appealed.  She attended the tribunal hearing with her daughter, an interpreter and a representative.  The tribunal, whose members were Mrs R (the legally qualified chairman), Dr. J (the medical member), and Mrs S (the disability member) disallowed the claimant’s appeal.  The claimant’s representative appealed, having previously obtained a full statement.  It is clear from the statement (which was lengthy and detailed) that the tribunal preferred the evidence of Dr. X to that put forward by or on behalf of the claimant.  I granted leave to appeal, a district chairman having previously refused such leave.  The Secretary of State does not support the appeal:  in a written submission his representative stated that the tribunal’s preference for the evidence of Dr. X was justified and reasoned.  

3.	Following that submission, the claimant’s representative raised a new issue, namely, whether the tribunal’s decision should be set aside on the grounds of apparent bias, Dr. X (the EMP who examined the claimant) having previously sat as a tribunal member.  I caused enquiries to be made of the Appeals Service:  the information was received that Dr. X had sat with Mrs R (the chairman of the tribunal which sat on 18 May 2005) on three previous occasions in the period of two years before the tribunal hearing, namely on 3 February 2004, 19 October 2004 and 4 February 2005, in each case for a half‑day session, but that during that period Dr. X had not sat with Mrs S (the disability member).

4.	Since the matters referred to in the preceding paragraph could give rise to the issues considered in the decisions of the Inner House of the Court of Session in Secretary of State for Work and Pensions v. Cunningham R(DLA) 7/04 and of the Deputy Commissioner in CSDLA/364/05, I acceded to the request by the claimant’s representative for an oral hearing of the appeal.  At the hearing the claimant was represented by Mr Ali, a local authority welfare rights adviser, and his colleagues and the Department by Miss Harris of the Office of the Solicitor.  During the course of the hearing I referred to the decision of the Court of Appeal in Locabail (UK) Ltd v. Bayfield Properties Limited [1999] EWCA Civ 3004:  since the claimant’s representative was not familiar with this authority, I gave him a further period to put in written submissions on it, which a colleague did.

5.	I turn to the law.  The test for apparent bias is that set out by Lord Hope of Craighead in Porter v. Magill [2001] UK HL 67 at [103] namely, 

	“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.”

There are therefore two questions to be resolved.  First, what are the facts which are said to give rise to the possibility that the tribunal was biased.  Secondly, whether a fair-minded and informed observer would conclude that there was a real possibility, in the light of those facts, that the tribunal was biased.

6.	In Lawal v. Northern Spirit Ltd [2003] UK HL 35, the House of Lords had to consider whether, in circumstances where a Queen’s Counsel appearing on an appeal before the Employment Appeal Tribunal had sat as a part‑time judge in that Tribunal with one or both of the lay members hearing that appeal, there was a real possibility of subconscious bias on the part of the lay member or lay members.  The House, unanimously, held that there was.  The House was called upon to treat the matter as a systemic issue – see paragraph [3] - and so treated it:  the House did not consider how frequently or how recently the Queen’s Counsel in question had sat with the lay members.

7.	The Inner House of the Court of Session in Secretary of State for Work and Pensions v. Cunningham R(DLA) 7/04 had to consider an appeal by the Secretary of State against the decision of a Deputy Commissioner who had held that there was a real possibility of bias where a tribunal had relied on the report of an EMP who had previously sat on numerous occasions during the past two years with each of the legally qualified member (22 occasions) and the disability member (14 occasions) and on three occasions with both.  The Inner House upheld the decision of the Deputy Commissioner.  In paragraph [6] of its decision the Inner House stated:

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

8.	In CSDLA/364/05 the Deputy Commissioner had to consider the question of perceived sub‑conscious bias where the EMP whose report was under consideration by the tribunal had sat with the chair either once five years previously or, possibly, twice in the last five years.  The Deputy Commissioner came to the conclusion that the case before him had to be decided on a principled approach otherwise “each sitting will have to be decided on the facts relating to the frequency and timing of sittings of each case, where the range of opinions may differ.  Such an approach is unlikely to inspire confidence in the tribunal system, which is the core need behind the ECHR jurisprudence that the fairness and impartiality required by Article 6.1 must inspire confidence in the courts system in a democratic society” – see paragraph [16] of the decision.  He further stated that the informed observer “would say if in some circumstances a tribunal is biased if the members have sat with the EMP, then the principles set out in Lawal ought to apply that a tribunal is always to be taken as apparently biased if there has been even at least one sitting by the EMP with a tribunal member.” – see paragraph [19].

9.	I add that in Gillies v. Secretary of State for Work and Pensions R(DLA) 5/06 the House of Lords held that the fact that a doctor, who regularly acted as an EMP, also sat as a tribunal member did not give rise to the possibility that the doctor, when sitting, would be biased in favour of any EMP report that might be before the tribunal.  Indeed, Baroness Hale of Richmond at [40] stated that tribunals would benefit from medical members’ expertise as EMPs.

10.	I am aware that the decision of the Deputy Commissioner in CSDLA/364/05 is under appeal to the Inner House of the Court of Session and is, I believe, due to be heard at the end of April 2007.  Neither party wished me to defer my decision pending that of the Inner House.  

11.	The first matter I have to decide is whether I should follow the decision of the Deputy Commissioner in CSDLA/364/05.  In my judgment I should not.  First, it is clear that in Lawal the House of Lords was asked to address the matter before it as a point of principle without regard to all the surrounding circumstances.  Secondly, although the Inner House in Cunningham deliberately forbore from giving any general guidance it did suggest (in the passage I have cited above) that a sitting once or twice a long time ago would not give rise to the perception of a real possibility of bias.  Thirdly, in Locabail at the beginning of [25] the Court of Appeal stated:

	“It would be dangerous and futile to attempt to find or list the factors which may or may not give rise to a real danger of bias.  Everything will depend on the facts, which may include the nature of the issue to be decided …”

The Court of Appeal then enumerated factors which would not give rise to a real possibility of bias and those that might or would.  It concluded the same paragraph by stating:-

	“In most cases, we think, the answer, one way or the other, would be obvious.  But if in any case there is real ground for doubt that doubt should be resolved in favour of recusal.  We repeat, every application must be decided on the facts and circumstances of the individual case.  The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”

(Since Locabail was decided the test has been redefined by the House of Lords to one of “real possibility” rather than “danger”).  Fourthly, Porter v. Magill makes it clear that the circumstances said to give rise to perceived bias have to be identified.

12.	I have come to the conclusion that the Deputy Commissioner was incorrect to equiparate the situation (in Lawal) of a lawyer addressing a tribunal one or two of the members of which he had previously chaired, with the situation of a tribunal having to consider evidence from a person with whom one of the tribunal members had previously sat.  In my judgment the first situation understandably required a systemic approach; the second situation, however, is that faced by any judge who has, or has had, personal knowledge of a witness and requires an analysis (as set out in Porter v. Magill  and Locabail) of all the surrounding circumstances; the Deputy Commissioner, in drawing a bright line at the highest possible point and in not analysing the circumstances of the case before him, in my view took the wrong approach.  (The Deputy Commissioner’s decision was further coloured by the fact that he was concerned about doctors, who had acted as EMPs, sitting as tribunal members - see paragraphs [23] and [24]:  this concern was subsequently shown to be unjustified – see Gillies.)

13.	I now turn to consider the circumstances which it is said give rise to the appearance of bias on the part of Mrs R.  Dr. X sat with Mrs R (who I believe to be a part‑time chair) some 15 months, 7 months and 3½ months before the hearing of 18 May at which Dr. X’s report on the claimant was considered.  Each occasion was a half‑day session.  A half‑day session of DLA cases lasts 2½ to 3 hours during which three oral hearings are normally listed, together, possibly, with one or two paper hearings.  

14.	Miss Harris, on behalf of the Secretary of State, submitted that the decision of the Inner House in Cunningham was distinguishable:  the frequency of contact between the EMP with not just one, but both of the legally qualified member and the disability member was of a wholly different order from the facts which I have to consider (which is clearly the case).  She further submitted that the facts of the present case could not give rise to the extent of the relationship which in Cunningham was held reasonably to be expected to have developed between the EMP and the other two members of the tribunal:  the combination of frequency, timing and length of relationship in the present case was not sufficient to give rise to the perception on the part of a fair-minded and informed observer that there was a real possibility of sub‑conscious bias.

15.	I put to Miss Harris the hypothetical situation of a legally qualified chairman who sat on a Monday for a half‑day session with an EMP (being the first time they had sat together) and who then had to consider on the following Friday, in a different case, a report from that same EMP, which report was of materiality.  She submitted that the length of contact on the Monday was not sufficient to give rise to a perception of sub‑conscious bias.  I do not agree.  A legally qualified chairman who sits on a Monday for two to three hours with an EMP as part of the same tribunal can reasonably be expected to have been influenced by him during the tribunal’s deliberations. An informed observer would, in my judgment, conclude that a residual influence would remain and that there was a real possibility of bias on the following Friday in favour of the EMP’s report, especially when (as is, in my experience, universally the case) the EMP does not attend and no cross‑examination takes place.  In such circumstances, in my view, the legally qualified member sitting on the Friday would be bound to accede to a request to recuse himself. 

16.	The question next arises whether the lapse of time (over three months) between the last occasion when Mrs R and Dr. X sat together destroys any perception of sub‑conscious bias – whether, in the words of the Court of Appeal in Locabail, the passage of time so weakens the objection as to remove it altogether.  I have not found this an easy question to answer.  In my judgment, however, the lapse of time is not sufficient in the present case to destroy the objection.  Mrs R had sat with Dr. X in February 2004 and October 2004.  She next sat with him in February 2005.  A fair-minded and informed observer would consider (i) that the sitting in February 2005 would no doubt have caused Mrs R to recall her previous two sittings with Dr. X and (ii) that that recall of her previous two sittings would, in the normal course of things, cause her in May 2005 to remember Dr. X rather better than if the February 2005 sitting had been the only occasion upon which she had sat with him.  I find that the fair-minded and informed observer would conclude that the lapse of time did not in the present case so weaken the objection as to remove it and that there accordingly remained a real possibility of sub-conscious bias.  I confess to having had some doubts as to the conclusion I have reached.  But, as the Court of Appeal stated in Locabail, any doubts must be resolved in favour of recusal, or, in this case, in setting the decision of the tribunal aside.  (I add that there is no suggestion – and nor can there be – of actual bias on the part of Mrs R.)

17.	For the sake of completeness I now turn to the claimant’s original grounds of appeal, ignoring the perception of bias issue.

	(a)	The claimant’s representative submitted that the tribunal prevented him from asking a question because it was judged by the chairman to be leading:  he explains that he was trying to elicit from the claimant a response to an evidential inconsistency.  In my judgment the chairman was perfectly within her rights stopping a leading question:  the representative could have asked open questions.  

	(b)	The claimant’s representative complains that the claimant’s daughter, who was present at the hearing, was not invited by the tribunal to make a contribution.  In my judgment it was open to the representative to ask the tribunal for the opportunity for the daughter to give evidence.  It was not incumbent on the tribunal, the claimant being represented, for it to ask the daughter to contribute.  

	(c)	The claimant’s representative takes issue with the tribunal’s findings on the claimant’s mobility and requirements for care.  As regards walking I do not consider the tribunal’s findings can be faulted.  The claimant attributed her problems with stumbles and falls to feelings of heaviness in her left leg, which was not confirmed by any evidence from her own GP or the EMP.  The GP stated that the claimant had problems with walking because she had osteoarthritis in her right knee.  She said that she had difficulties in walking because of joint pains, dizziness and weakness.  The tribunal were not impressed by the claimant’s oral evidence with regard to dizziness and falls, which it thought was inconsistent and hence unreliable.  The tribunal noted that the claimant’s GP did not mention dizziness and that the claimant was not being treated for vertigo; the tribunal further noted that the EMP recorded no evidence of dizziness or vertigo.  On the evidence the tribunal found that dizziness was not a significant disabling condition and was not likely to result in stumbles or falls.  It rejected the claimant’s evidence that her falls were caused by her left leg feeling heavy, in the light of the clinical findings of the EMP that there was no functional impairment of her lower limbs.  Finally, the tribunal found that the claimant’s ability to judge distances was questionable and preferred the estimate of the EMP that the claimant could walk 150 yards before the onset of severe discomfort.  As regard care the tribunal systematically rejected the case for each component of care pointing out the inconsistencies between her answers on the claim form, to the EMP and oral evidence at the tribunal.  The tribunal sufficiently explained why the evidence of the GP did not materially assist the claimant.  The tribunal further fully explained that it had taken into account the evidence of the claimant’s rehabilitation officer and why that evidence did not go to assist the claimant’s case. 

	(f)	The tribunal found that the claimant could avoid the risk of vomiting when she used her inhaler by using a spacer.  The claimant’s representative argues that this point was not put to the claimant and should have been.  I agree that it would have been better had the point been put to the claimant:  but in my judgment this minor error is not of such a material nature to make the tribunal’s decision erroneous in law.

	(g)	The tribunal found that any difficulty the claimant had over which medication to take was caused by the claimant’s lack of English, rather than by confusion or lack of concentration, and could be resolved by the use of a medi-box.  The claimant, when asked to point out what medication she took for her asthma, pointed to some NSAID tablets and an acid blocker.  The claimant’s representative argued that this demonstrated that the claimant was confused, since most people who were not confused would know the difference between tablets and an inhaler.  In fact however the claimant was being asked about tablets, and corrected herself and identified the NSAID tablets as being for joint pains; and it was stated on her behalf that the claimant sometimes could not distinguish asthma pains from acid reflux.  I am satisfied that the tribunal was entitled to find that the claimant did not suffer from the alleged confusion:  indeed the totality of the claimant’s evidence to the tribunal did not indicate any mental confusion on her part.  

18.	Accordingly, on the issue of perceived bias alone, I set the decision of the tribunal aside.  I remit the case for rehearing by a differently constituted tribunal.  It appears from the case papers that the claimant made a further claim for disability living allowance in June 2005.  If that be the case, then the new tribunal’s decision will only cover the period from the date of the first claim until the day before the subsequent claim. 

					(Signed on the Original)	A Lloyd‑Davies
									Commissioner 

									1 March 2007