Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 CSDLA 1019 1999
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 09 November 2005 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Human rights law |
| Docket Number | CSDLA 1019 1999 |
| Appellant | Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 |
R(DLA) 5/06
(Gillies v Secretary of State for Work and Pensions [2006] UKHL 2)
|
HL |
(Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Baroness Hale of Richmond) 9 November 2005 |
CSDLA/1019/1999 |
Tribunal practice – natural justice – apparent bias – membership of appeal tribunal including doctor who also acted as an examining medical practitioner for the Benefits Agency – whether breach of principles of independence and impartiality – test of fair-minded and informed observer
The appeal tribunal had upheld the decision of the Secretary of State that the claimant was not entitled to an award of disability living allowance. The claimant appealed to the Commissioner. In the course of submissions to the Commissioner, the claimant raised an objection about the independence of the tribunal having regard to the fact that the medical member of the tribunal also undertook medical reports for the Benefits Agency as an examining medical practitioner (EMP). A Tribunal of Commissioners (W M Walker QC, D J May QC, and J N Wright QC) upheld the appeal. The Secretary of State appealed to the Court of Session (the Lord President (Cullen), Lord Kirkwood and Lord Weir), which allowed the appeal. The claimant appealed to the House of Lords, which upheld the decision of the Court of Session.
Held, dismissing the appeal, that
- an appeal to the Commissioner was competent on a question of law only. The issue of the proper constitution of an appeal tribunal and whether it had acted in breach of the principles of natural justice were questions of law rather than fact. Accordingly, the Tribunal of Commissioners had had jurisdiction to examine it and the question at the stage of any further appeal to the Court of Session and to the House of Lords was also whether the decision of the appeal tribunal was erroneous in point of law (Lawal v Northern Spirit Ltd [2003] UKHL 35 applied) (paragraphs 4 to 7);
- the common law position in regard to the reasonable apprehension of bias had been greatly simplified since the case was before the Tribunal of Commissioners and the possibility of a conflict between the English and the Scottish tests had been removed by the House of Lords in Porter v Magill [2001] UKHL 67 (paragraph 3);
- the rationale for disqualification by reason of apparent bias was to ensure that the basic rules of fairness were adhered to and to maintain public confidence in the integrity of the adjudication system and the administration of justice (paragraph 23);
- the critical issue was whether a fair-minded and informed observer would conclude, having considered the facts, that there was a real possibility that a doctor would not evaluate medical reports prepared by other doctors objectively and impartially, it being assumed that such an observer would have access to all such facts as are capable of being known by the public and that the observer was neither complacent nor unduly sensitive or suspicious and could distinguish between what is relevant and what is irrelevant and give appropriate weight to relevant facts (paragraph 17);
- a doctor exercising the roles of an EMP and of a medically qualified member of the appeal tribunal is called upon to exercise independent professional judgment drawing upon medical knowledge and experience. The fair-minded observer would conclude that the doctor’s knowledge and experience would cut both ways in identifying not only the strengths but also the weaknesses of the reports of EMPs (R (PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311 applied) (paragraph 21);
6. on the facts of the case, there was no basis for a finding that there was a reasonable apprehension of bias.
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
Jonathan Mitchell QC and Simon Collins, Advocate (instructed by Drummond Miller WS, Edinburgh) appeared for the appellant.
Colin Campbell QC and Jonathan Brodie, Advocate (instructed by Solicitor to the Advocate General for Scotland, Edinburgh) appeared for the respondent.
LORD NICHOLLS OF BIRKENHEAD:
My Lords,
- I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead, Lord Rodger of Earlsferry and Baroness Hale of Richmond. I agree with them and for the reasons they give I would dismiss this appeal.
LORD HOPE OF CRAIGHEAD:
My Lords,
- In this case it is alleged that there was a reasonable apprehension that the medical member of a disability appeal tribunal was biased. The First Division of the Court of Session (the Lord President (Cullen) and Lords Kirkwood and Weir) on 28 November 2003 allowed an appeal from a decision of a Tribunal of Social Security Commissioners (W M Walker QC, D J May QC and J N Wright QC) dated 15 June 2001 in which that argument was upheld: 2004 SLT 14. Holding that the facts were not such as to raise such an apprehension, the First Division restored the decision of the disability appeal tribunal of 15 July 1999 refusing the appellant's appeal against the decision of an adjudication officer that he was not entitled to a disability living allowance.
- As the Lord President noted at page 18, paragraphs 21 and 22, the common law test by which issues of this kind are determined has been simplified since the case was before the Tribunal of Social Security Commissioners. The possibility of a conflict between the English test as set out in R v Gough [1993] AC 646, 670 by Lord Goff of Chieveley and the Scottish test as set out in Bradford v McLeod, 1986 SLT 244,247 by Lord Justice-Clerk Ross and in Hoekstra v H M Advocate (No 2) 2000 JC 391, 399 by Lord Justice General Rodger has been removed. The test which this House approved in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 is set out at page 494, paragraph 103, where I said that 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 issue for determination in this case therefore is whether, on the facts of the case, this test has been satisfied.
Is there a question of law?
- I am conscious that a consequence of putting the issue in this way is to invite the question whether this is a question of law or a question of fact. Section 14(1) of the Social Security Act 1998 provides that an appeal lies to a Commissioner from any decision of an appeal tribunal under sections 12 and 13 of the Act on the ground that the decision of the tribunal was erroneous in point of law. That was the route by which this case reached the Tribunal of Commissioners, as a direction was given under section 16(7) that it be heard not by a Commissioner sitting alone but by a Tribunal of three Commissioners on the ground that the appeal involved a question of law of special difficulty. Section 15(1), read with section 15(4)(b) of the Act, provides that an appeal shall lie to the Court of Session from any decision of a Commissioner. At that stage, and at the stage of any further appeal to this House as well, the question is the same as that which was before the Commissioner. It is whether the decision of the disability appeal tribunal was erroneous in point of law.
- The Lord President said that the court was satisfied that the appeal raised a question of law for the court. As he put it, at page 20, paragraph 34:
“We are not concerned in this appeal with a question such as whether the Tribunal of Commissioners drew the correct inference of fact from the factual circumstances which were before them. We are concerned with whether there was a failure to provide the guarantee of impartiality on the part of the members of the disability appeal tribunal which the respondent and the public were entitled to expect. For that purpose we require to apply the law to the factual circumstances. We have to take the viewpoint of a reasonable and well-informed observer who, in the words of Kirby J in Johnson v Johnson (2000) 200 CLR 488, is ‘neither complacent nor unduly sensitive or suspicious’. The argument presented by the appellant in this case goes to the root of the decision of the Tribunal of Commissioners by asserting...
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