Gillies v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE,LORD NICHOLLS OF BIRKENHEAD
Judgment Date26 January 2006
Neutral Citation[2006] UKHL 2
Date26 January 2006
Docket NumberNo 3

[2006] UKHL 2

HOUSE OF LORDS

Gillies (AP)
(Appellant)
and
Secretary of State for Work and Pensions
(Respondent) (Scotland)
LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

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,

2

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 the 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.

3

As the Lord President noted at p 18, paras 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 the 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 p 494, para 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?

4

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.

5

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 p 20, para 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 view 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 that, when that standard was applied, there was no basis for any suspicion of bias."

Mr Mitchell QC for the appellant said that it was for the respondent, who had brought the case to the Court of Session on the ground that there was an error of law by the tribunal of commissioners, to identify the error of law which had occurred. But he did not suggest that the Court of Session did not have jurisdiction to examine the question, and I think that he was right not to do so.

6

The question whether the fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased cannot, of course, be answered without looking at the facts. The error of which the respondent complains is not that the tribunal of commissioners asked themselves the wrong question, but that they reached the wrong answer. But the question whether a tribunal was properly constituted or was acting in breach of the principles of natural justice is essentially a question of law. It requires a correct application of the legal test to the decided facts. As Mr Campbell QC for the respondent said, there can be only one correct answer to the question whether the tribunal was properly constituted. So to answer the question incorrectly is an error of law. If that argument is accepted, it must follow that there was an error of law which was open to correction by the appellate court.

7

This is how the matter is dealt with in practice. In Lawal v Northern Spirit Ltd [2003] ICR 856 objection was taken to the appearance in an appeal from an employment tribunal as counsel for the employers of a part-time recorder who in that capacity had sat as a part-time judge in the Employment Appeal Tribunal with one or both of the two lay members of the appeal tribunal panel. The question was raised whether there was a real possibility of unconscious bias on the part of the law member or lay members. This was treated throughout as a question of law for decision by the Employment Appeal Tribunal which was open to review in the Court of Appeal and in the House of Lords by the statutory appeal process. So I think that it is safe to proceed on the basis that a question of law has been raised in this case which is open for determination by your Lordships.

The question of bias

8

The factual background to this question can be stated quite simply. The medical member of the tribunal was Dr J F Armstrong. She was first appointed on 1 October 1993 to the panel of medical practitioners constituted under section 42(3) of the Social Security Administration Act 1992 from which medical members of disability appeal tribunals were drawn under section 43(2) of that Act. Following the expiry of her first appointment she was re-appointed to the panel for one more year with effect from 1 September 1998, in anticipation of the restructuring and reorganisation of the appeal tribunals which was provided for by sections 4 to 7 of the Social Security Act 1998. It was by virtue of that appointment that she was sitting as a member of the tribunal which heard the appellant's appeal on 15 July 1999.

9

For a number of years Dr Armstrong had been providing reports for the Benefits Agency as an examining medical practitioner ("EMP"). Between 1990 and 1998 she was engaged for this purpose by the Benefits Agency Medical Services. In 1998 the Benefits Agency contracted out the provision of EMP reports in respect of a number of types of benefit to the SEMA Group, which subcontracted part of that work to another company, Nestor Healthcare Group plc and one of its subsidiaries (known collectively as "Nestor"). SEMA employed a number of doctors to act for them full time on work for the Department of Social Security. It also contracted with Nestor to engage a separate pool of doctors to act for them on a part-time, sessional fee-paid basis. It was in that part-time, fee-paid capacity that Dr Armstrong, who had previously worked directly for the Benefits Agency Medical Services, was invited in 1998 to apply for a new contract with Nestor.

10

During the period from 1990 to 2000 Dr Armstrong provided an average of four EMP reports each month in disability living allowance cases. She carried out her examination of the claimants for the purposes of these reports in the claimants' own homes. Between 1995 and 2000 she also provided EMP reports in incapacity benefit cases at an average of four sessions per week, and thereafter at an average of seven sessions per week. Some of these reports involved an "all work" test which was carried out at a Benefits Agency medical centre. Medical members who prepared reports in these cases were advised that, to avoid any risk of embarrassment, they should not to sit on a tribunal hearing "all work" test appeals. At the time of the hearing of the appellant's appeal, Dr Armstrong was spending the majority of her working week either examining claimants and preparing reports on them for Nestor on behalf of the Benefits Agency, or sitting as a tribunal member hearing appeals relating to disability living allowance and other benefits other than those in "all work" test cases. She was sitting as a tribunal member at an average of one session per week. Medical members of appeal tribunals did not require to take a judicial oath or give any other kind of formal undertaking as to the way in which they would carry out their duties as a member of the tribunal.

11

The tribunal which heard the appellant's appeal was constituted in the usual way. There was a legally qualified chairman, and there were two panel members, one of whom was Dr Armstrong. Its decision to refuse the...

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