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Gillies (AP) (Appellant) v. Secretary of State for Work and Pensions (Respondent) (Scotland)
LORD NICHOLLS OF BIRKENHEAD
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
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  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  UKHL 67;  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:
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  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 appeal was unanimous. In its decision notice it was stated that the tribunal found the appellant to be a difficult witness, that there was a wealth of medical evidence to say that his condition was better than he claimed, that he was supported only by a report from a consultant cardiologist who did not examine him but accepted his claim that he was unable to walk and that it accepted the view of the EMP and the appellant's general practitioner who saw him regularly. These points were made again in the formal statement of reasons for its decision, where the tribunal said that it found the appellant's evidence unreliable and that it had afforded greater weight to the opinions of the EMP and the general practitioner.
12. The tribunal of commissioners said in para 77 of their decision that, on the basis of the information available to them, they had concluded that the objective bystander would have a reasonable apprehension of bias on the part of Dr Armstrong, even though they had no reason to think that she was consciously biased. They accepted that the arrangements under which doctors such as Dr Armstrong were engaged to provide EMP reports did ensure the provision of independent expert evidence which could be relied upon as such by the Benefits Agency. But they said that it was different matter for one of those same doctors to be involved in assessing such reports prepared by other doctors and then adjudicating on conflicts of evidence between such reports and other evidence. In their view it would be reasonable for an informed member of the public to think that justice might not be done in such circumstances.
13. Elaborating on this view, the tribunal of commissioners made it clear in para 79 of their decision that they rejected the submission that doctors who were in this position were to be seen as acting on behalf of the Benefits Agency. They were satisfied that, when they were acting as expert advisers to the Agency, the doctors were obliged to work objectively to prescribed standards. They were in a position of professional independence. Their reports were presented to appeal tribunals as independent reports, and they could properly be relied upon as such.
14. But the tribunal of commissioners went on to find that doctors who held current engagements with Nestor were in a markedly different position from NHS doctors generally. In their view the bystander, considering situations where EMP reports were in competition with other evidence, would have a real apprehension or suspicion that doctors who prepared these reports would tend to lean in favour of accepting reports by other doctors in that class. They explained their decision that the test for apparent bias had been satisfied in this way in para 80:
15. The Court of Session did not agree. As the Lord President explained at pp 20-21, para 38, it could be assumed that the reasonable and well-informed observer would know that Dr Armstrong and the other EMPs were independent expert advisers when carrying out the work of examining and reporting to the Benefits Agency. Why then, he asked, should they not be regard as independent of each other when it came to assessing and adjudicating between competing medical opinions when sitting on the tribunal? Having examined the facts, the court concluded that the fact that Dr Armstrong carried out examinations and provided reports for the Benefits Agency as an EMP would not be sufficient to raise an apprehension as to her impartiality as a member of a disability appeal tribunal. The mere fact that the tribunal would require to consider and assess reports by other doctors who acted as EMPs would not raise such an apprehension.
16. Mr Mitchell sought to persuade your Lordships that their Lordships of the First Division were in error and that the correct view of the facts was that which was reached by the tribunal of special commissioners. He built his argument up in this way. Dr Armstrong had been working for the Benefits Agency as an EMP for nine years, albeit as an independent adviser to the Agency. She had been providing reports in that capacity in relation to claims for disability living allowance and invalidity benefit. The issues which she was having to consider in those cases were so similar as to be indistinguishable from the issues which were before the tribunal of which she was a member. She had been doing this as a colleague of an important witness before the tribunal who contradicted the claimant's evidence. Important institutional safeguards were lacking in her case, such as the taking of a judicial oath and evidence that she had been professionally trained in the work of the tribunals. She had also failed to make a proper disclosure when sitting as tribunal member as to the circumstances that might be thought to raise a question as to her impartiality. Taking these factors together, he said, the tribunal commissioners were right to hold that the test for apparent bias was satisfied.
17. The critical issue is whether the fair-minded and informed observer would conclude, having considered the facts, that there was a real possibility that Dr Armstrong would not evaluate reports by other doctors who acted as EMPs objectively and impartially against the other evidence. The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed, as Kirby J put it in Johnson v Johnson (2000) 201 CLR 488, 509, para 53, that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.
18. It is important to stress at the outset that the facts do not support the appellant's primary argument that Dr Armstrong was to be seen as a Benefits Agency doctor or that she was in some other way aligned with the Benefits Agency. The tribunal of commissioners and their Lordships of the First Division were in agreement on this point. Her relationship with the Benefits Agency was as an independent expert adviser. Her advice was sought and given because of the skills that she was able to bring to bear on medical issues in the exercise of her professional judgment. A fair-minded observer who had considered the facts properly would appreciate that professional detachment and the ability to exercise her own independent judgment on medical issues lay at the heart of her relationship with the Agency. He would also appreciate that she was just as capable of exercising those qualities when sitting as the medical member of a disability appeal tribunal. So there is no basis for a finding that there was a reasonable apprehension of bias on the ground that Dr Armstrong had a predisposition to favour the interests of the Benefits Agency. Nor, it must be emphasised, is there any suggestion that she did or said anything in the course of her work which might be thought to cast doubt on her impartiality or her integrity.