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Cite as: [2003] ScotCS 292, 2004 SCLR 208
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Secretary of State for Work and Pensions v. Social Security Commissioners & Anor [2003] ScotCS 292 (28 November 2003)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Kirkwood Lord Weir
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XA178/01 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL TO THE COURT OF SECTION under section 15(1) and (2)(a) of the Social Security Act 1998 by THE SECRETARY OF STATE FOR WORK AND PENSIONS Appellant; against A decision of a Tribunal of Social Security Commissioners of 15 June 2001, communicated to the Appellant on or about 18 June 2001 and JAMES GILLIES Respondent: _______ |
Act: Dean of Faculty, Bartos; H. Macdiarmid (Appellants)
Alt: J.J. Mitchell, Q.C., Collins; Drummond Miller, W.S. (Respondents)
28 November 2003
[1] The respondent appealed to a disability appeal tribunal against the refusal by an adjudication officer of his claim for a disability living allowance. On 15 July 1999 the tribunal refused his appeal. With leave of the chairman he appealed to the Social Security Commissioner. In due course it was decided that, because the appeal raised novel questions of law, it should be heard by a Tribunal of Social Security Commissioners. The Tribunal allowed the respondent's appeal in their decision dated 15 June 2001. The appellant has appealed, with leave, against that decision.[2] The point at issue before the Tribunal of Commissioners was whether the fact that a medical member of the disability appeal tribunal regularly provided reports which were used by the Benefits Agency in the assessment of claims would have created a suspicion of bias on her part.
[3] We begin with the factual circumstances, as to which there was and is no dispute. At the time of the decision of the disability appeal tribunal the doctor, Dr. A., provided reports as an examining medical practitioner (EMP) in respect of claims for disability living allowance and related benefits. She also provided reports in regard to claims for incapacity benefits which involved the "all work test".
[4] In 1998 a system was introduced whereby the Benefits Agency contracted out the provision of reports in respect of a number of types of benefit to the SEMA Group (SEMA), who themselves sub-contracted part of that work to another company, Nestor Healthcare Group plc and a subsidiary company (to both of whom we will refer as Nestor).
[5] SEMA themselves employed a number of doctors full-time on work for the Department of Social Security. In addition SEMA contracted with Nestor to provide a pool of doctors engaged on a sessional, fee-paid basis. This was the position which was held by Dr. A. Having formerly worked directly for the Benefits Agency Medical Services (BAMS) she was invited in 1998 to apply for a new contract with Nestor.
[6] Dr. A. provided an average of four reports in respect of disability living allowance per month from 1990 to 30 July 2000. As from 1995 she also provided reports for incapacity benefit. She carried out this work for four sessions per week before 30 September 2000, and seven sessions per week thereafter. By July 1999 she was engaged under the contractual arrangements to which we have referred. Until the introduction of these arrangements in 1998 she was directly engaged as part of the BAMS, apparently on a sessional basis. In these circumstances she spent the majority of her working week either examining claimants and preparing reports or sitting as a member of a Tribunal hearing appeals relating to mobility living allowance and other benefits.
[7] Under the arrangement with SEMA standards were specified for the qualification and experience of medical personnel. SEMA had to provide training so as to ensure that the required level of knowledge and skill was available. Doctors with a connection or previous involvement with individual claimants were excluded from examining them.
[8] The Tribunal of Commissioners were provided with a specimen contract between Nestor and a sessional doctor such as Dr. A. It was a contract for services rather than service, without obligation on either side. It included a number of provisions related to service standards and training. There were provisions about conflict of interest which were similar to what we have mentioned in regard to SEMA.
[9] As regards working arrangements, it appears that as between reports in regard to disability living allowance and the "all work test" there was a difference, in respect that, in the case of the former, examinations were at the homes of claimants, whereas in the case of the latter they took place at a Benefits Agency medical centre. The Tribunal of Commissioners observed in their decision that the extent of contact between an examining doctor and Benefits Agency staff, or other SEMA or Nestor doctors, was not clear. Dr. A. carried out her "all work test" examinations at Corunna House, Glasgow.
[10] Dr. A. was first appointed on 10 October 1993 to the panel of medical practitioners under section 42(3) of the Social Security Administration Act 1992. She was appointed by the President of the Independent Tribunal Service. Her appointment ran from that date until 31 August 1998. As at the date of the hearing of the disability appeal tribunal she had been re-appointed until 30 September 1999. It was explained that at the time of her re-appointment there were proposals for legislation for the restructuring and reorganisation of the tribunal service, and that it was to allow for these changes that her appointment had been renewed for that period. Dr. A. attended as a member of a tribunal in 1998, 1999 and subsequently at the rate of about one tribunal session per week. At the time of the hearing before the disability appeal tribunal the judicial members of the tribunal were appointed by the Lord Chancellor and the administration was provided by the Department of Social Security. Thereafter the function of the Independent Tribunal Service was taken over by The Appeals Service, and all members of the tribunal, including those legally qualified, were appointed by the Lord Chancellor.
[11] Extracts from an Independent Tribunal Service Guide to the Appointment of Tribunal Chairmen and Members, of July 1996, which covered appointments to disability appeal tribunals, stated, inter alia, that candidates for appointment "should be suitably established in their medical practice and be well-regarded within their professional circles" (paragraph 4.3); and that at interview details of "the nature and extent of any fee-paid or sessional work which the candidate might perform for BAMS or for a private contractor on behalf of BAMS" were to be discovered (paragraph 4.9). The situation of tribunal members who were also BAMS doctors was further covered as follows:
"4.20 There is no reason why a doctor who is acting as an Examining Medical Practitioner (EMP) for the Benefits Agency Medical Services (BAMS) on a part-time basis should not be appointed as a DAT medical member. During interview, however, the Regional or full-time Chairman should satisfy himself that there is no potential conflict of interest between the two roles and should make it clear to the candidate that, if appointed, he would have to exclude himself from sitting on any tribunal hearing the appeal of a person whom he had previously examined in connection with any claim for benefit".
"22. A part-time panel member should not sit on an appeal tribunal in circumstances which might give rise to doubt about his or her impartiality, i.e. at the hearing of a case if:
(a) he or she has any personal, professional or pecuniary interest in that
case ... ".
"15. As a general principle a Medical Panel Member should not sit on an appeal Tribunal at a particular hearing centre if they are liable to be embarrased (sic) by doing so.
16. A part-time judicial office holder should not sit on a case involving his own practice or patient, or otherwise where to do so could give rise to the perception of prejudice in the administration of justice. They should comply with the existing case law governing pecuniary or other interests in deciding whether to declare an interest in, or stand down from, a particular case.
17. A part-time judicial office-holder should not sit on a case if he has a personal, professional or pecuniary interest in that case ... ".
[15] Medical members of appeal tribunals did not require to take a judicial oath or any other formal undertaking to the manner in which they would carry out their duties as a member of the Tribunal.
[16] It is convenient at this point to turn to the basis on which the Tribunal of Commissioners reached their decision.
[17] For the respondent it had been argued that in the circumstances there was the appearance of one Benefits Agency doctor agreeing with the views of another Benefits Agency doctor in an appeal in which the Benefits Agency had a direct interest (paragraph 55). The Tribunal of Commissioners reached the conclusion that, when account was taken of the very detailed obligations to work objectively to prescribed standards, along with the fact that doctors, such as Dr. A., were not employed under contracts of employment and that their engagement was at some contractual distance from the Benefits Agency, the overall effect was to put the doctors, in their capacity as expert advisers to the agency, in a position of professional independence. They added: "They are not in our view, simply 'Benefits Agency doctors', but rather independent expert advisers at that stage" (paragraph 79).
[18] The Tribunal of Commissioners went on to state:
"80. The reports of doctors such as Dr. A. can therefore properly be relied upon and presented to appeal tribunals as independent reports. However, what is then found is that members of the class of doctors who have a special interest in and experience of this kind of work and who hold current engagements under the detailed Nestor conditions are sitting as members of tribunals considering the reports of others in the same position. We consider that doctors in this group are in a markedly different position from NHS doctors generally. The obligation of the latter to provide reports on their patients from time to time when called on to do so is in our view quite different from the doctors with the Nestor contracts. Such doctors are (very properly in their capacity as advisers to the Department), trained, approved and monitored to the Department's standards. They are a relatively small group. In our view the bystander considering situations in which other such doctors' reports are in competition with other evidence would have a real apprehension or suspicion that there may be a tendency to lean in favour of accepting the reports prepared by others in the class. We are thinking of situations where an EMP report is placed beside the appellant's oral evidence, or beside a consultant's evidence, both of which situations arose in the present case. There may of course be very good reasons to accept evidence which is objective and focused on the correct issues in preference to that of interested claimants. There may also quite often be circumstances in which the evidence of other doctors, even consultants, can be seen to be less well-focused on the issues. However, the concern would be that a doctor in Dr. A's position, because of the substantial current involvement in the same role as the reporting doctor, may start with an inclination to accept that evidence rather than objectively viewing the competing version. We may not necessarily take the same view ourselves, but if we find that our objective bystander would reasonably have that perception, we must apply the brocard 'justice must be seen to be done'. We do so find.
81. In reaching this view, we are distinguishing between the two roles, that of applying professional expertise in noting medical details and patient histories, examining patients and giving medical opinions, and that of assessment and adjudication between competing opinions. Reliance on professional objectivity is clearly very relevant to the first, but we think much less obviously so, in the eyes of the objective bystander, to the second".
[20] The Tribunal of Commissioners also stated that the view of the reasonable bystander would be slightly reinforced by a consideration of Dr. A's tenure as a tribunal member. There was, in their view, some slight significance in the fact that at the time of the appeal tribunal hearing she had an appointment for only one year, terminable at will as provided by section 42(7) of the 1992 Act, with no guarantee of being called on. There might be some slight concern that such a member might be apprehensive about her position. However, that seemed to them to be of very limited significance in relation to the point at issue, when it was appreciated that the appointment was made by the Independent Tribunal Service. The apparent link through the Tribunal clerks did not in their view give rise to any further reasonable apprehension (paragraph 87).
[21] It is common ground that, having regard to the date of the decision of the disability appeal tribunal, Article 6 of the European Convention on Human Rights does not apply directly in the present case. Further, it is not in dispute that the Tribunal of Commissioners correctly identified the common law test for disqualification by reason of bias. We refer, as did the Tribunal of Commissioners in paragraph 70, to a passage in the Opinion of the High Court of Justiciary delivered by The Lord Justice-General (Rodger) in Hoekstra v. H.M. Advocate (No. 2) 2000 J.C. 391 at page 399, in which he said:
"In Bradford (Bradford v. McLeod 1986 S.L.T. 244) Lord Justice Clerk Ross adopted as representing the law of Scotland on this matter the words of Eve J. in Law v. Chartered Institute of Patent Agents ([1919] 2 Ch. 276) at page 289 where he said of the members of a council: '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'. We note that in Livesey v. New South Wales Bar Association (1983 151 C.L.R. 288) at pages 293-294 the High Court of Australia indicated that it might be preferable to avoid the use of the word 'suspicion' in this context because 'it sometimes conveys unintended nuances of meaning'. 'Apprehension of bias' might be a more suitable expression".
"Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v. Johnson (2000) 200 C.L.R. 488, 509, paragraph 53, by Kirby J. when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious'".
[24] Counsel for the appellant submitted that, while the Tribunal of Commissioners had identified the correct test of the apprehension of bias, they had failed to apply it to their reasoning. The attention of the court was drawn to the first sentence of paragraph 77 in which they stated:
"On the basis of the information available to us (and ex hypothesi also to the objective bystander) we have concluded that such a person would have a reasonable apprehension of bias on the part of Dr. A. even although we have no reason to think that Dr. A was consciously biased".
However, the main submission made by counsel for the appellant was that the Tribunal of Commissioners had not identified reasons for their conclusion that there would have been an apprehension of bias. In other words they had failed to indicate any objective justification for such apprehension. It was, moreover, unclear whether the Tribunal of Commissioners were saying that any EMP who sat on a Disability Appeal Tribunal would have appeared to be biased (paragraph 77), or that Dr. A., by reason of the extent of her work as an EMP, would have so appeared (paragraph 80).
[25] In developing the main submission counsel placed reliance on the conclusion of the Tribunal of Commissioners in paragraph 79 that doctors such as Dr. A. were not simply "Benefits Agency doctors" but rather were independent expert advisers to the Agency. Despite that, they had drawn the distinction in paragraph 81 to which we have referred earlier in this Opinion. For the appellant the Dean of Faculty submitted that, although the functions referred to in that paragraph were different, there was no good reason why a doctor, whose independence as an expert adviser was accepted, should provoke concern that she might no longer be able to act in an independent, objective and impartial manner when she was performing the work of assessing and adjudicating between competing opinions. It was purely speculative to assert that. It was a concern which only an unduly sensitive or suspicious bystander would entertain.[26] Counsel for the respondent argued that the main submission for the appellant did not raise a question of law, to which appeals to the Court of Session were restricted, in terms of section 15 of the Social Security Act 1998. There was no scope for interfering with the decision of the Tribunal of Commissioners unless it could be shown that they misdirected themselves in law or misunderstood or misapplied the law, or that there was no evidence to support a particular conclusion or finding or that their decision was either perverse in the sense that it was one which no reasonable Tribunal, directing itself properly on the law, could have reached, or, alternatively, was one which was obviously wrong. It was not enough that this court might have reached a different conclusion on the basis of the factual circumstances.
[27] Counsel for the respondent went on to submit that the Tribunal of Commissioners were entitled to base their conclusion on the relationship between, on the one hand, Dr. A. and the other EMPs, and on the other hand, the Benefits Agency which was a party to the proceedings before the disability appeal tribunal.
[28] The main submission which was made by counsel for the respondent was founded on the association between Dr. A. and the other EMPs, who formed a small, discrete and specialist class, as the Tribunal of Commissioners had pointed out.
[29] In support of these submissions counsel for the respondent drew attention to a number of cases in which the question of apprehension of bias had been considered. They referred to In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700. In that case a lay member of the Restrictive Practices Court sought employment by a consultancy firm, a director of whom was to be the principal expert witness for the Director General of Fair Trading. It was held that the fair-minded observer would be concerned that, if she sufficiently esteemed the firm as to wish to be employed by them, she might consciously or unconsciously be inclined to consider them a more reliable source of expert opinion than their rivals. The impartial observer would not be convinced by the withdrawal of her application that all prospects of her working for the firm at some time in the future had been destroyed or that she might not still hope in due course to work for the firm (paragraphs 95 and 97).
[30] Counsel for the respondent pointed out that since the decision of the Tribunal of Commissioners the Appellate Committee of the House of Lords had decided Lawal v. Northern Spirit Limited. If it was open to the court to consider for itself whether there was an apprehension of bias in the present case, that decision provided a parallel. It was a case in which the challenge was not tied to the circumstances of the conduct of a particular person but, as was observed by Lord Steyn in paragraph 3, was concerned with a systemic issue. It was the practice of appointing leading counsel, who were recorders and had experience of employment law, to sit as part-time judges in the Employment Appeal Tribunal, while it was thought that there were no restrictions on their freedom to appear as counsel before the Tribunal. It was held that if counsel appeared before a panel of the Tribunal that included one or two lay members with whom he had previously sat as a part-time judge, a fair-minded and informed observer might conclude that there was a real possibility of such lay members being subconsciously biased in favour of counsel's submissions. Counsel for the respondent pointed out that that decision did not hinge on the extent to which a part-time judge and the wing members had sat together in the tribunal, and how recently. As Lord Steyn observed at paragraph 20:
"These differences are, however, not material. The House must concentrate on a systemic challenge and apply a principled approach to the facts on which it is called to rule".
Counsel also pointed out that in paragraph 22 Lord Steyn observed that the indispensable requirement of public confidence in the administration of justice required higher standards today than was the case even a decade or two ago, and that an informed observer would not be wholly uncritical of legal traditions and culture. This decision provided a useful example of the risk of apprehended bias by reason of association between an adjudicator and others with whom he had been involved.
[31] Counsel also pointed out that the Appellate Committee in Lawal v. Northern Spirit Limited had taken into account a number of analogies, the most important being the "Terms and Conditions of Service and Terms of Appointment of Part-time Chairmen of [Employment Tribunals]". These terms provided that, in order to ensure that there were no allegations of bias, no such Chairman was to appear as an advocate before any Employment Tribunal in the whole of the region to which he had been assigned to sit as a Chairman.[32] Founding on that approach counsel for the respondent relied on the advice which The Appeals Service had provided to medical members in 1999, to which we referred in paragraph [14]. Counsel submitted that the rationale for the line which had been taken by The Appeals Service could only have been the risk of apparent bias. The reasonable observer would have had difficulty in grasping the difference between such a risk in the case of incapacity benefit and the risk in the context of disability living allowance. Dr. A. had, as we have already noted, provided reports into both types of claims.
[33] The attention of the court was also drawn by counsel to evidence given by Judge Michael Harris, President of the Appeals Tribunal before the Social Security Commission of the House of Commons on 9 February 2000, which is reported in the Committee's third report (HC 183). In the course of that evidence he explained (at paragraph 504) that the reason for the exception in respect of the "all work test" was that it was considered that, because the doctors who carried out such examination did so "in house in the Department", they were too closely identified with it. His preference would be to depart from this exception. At the same time he accepted that there was not much difference between doctors who performed such examinations and those who examined in respect of disability living allowance and attendance allowance claims. In their report the Committee recommended (at paragraph 114) that legal advice should be taken as to the potential incompatibility with the European Convention of the current practice of sessional doctors sitting on tribunals.
[34] We are satisfied that this appeal raises a question of law for this court. 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, 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.
[35] As we have already noted, counsel for the respondent sought to maintain that the decision of the Tribunal of Commissioners could be justified by reference to the connection between Dr. A. and the Benefits Agency for whom she supplied reports. We are bound to say that having regard to the terms of paragraph 79 of their decision, we do not interpret the Tribunal of Commissioners as having taken that view. They said in terms that Dr. A. and other doctors who were under contract to Nestor were "not in our view, simply 'Benefits Agency doctors', but rather independent advisers at that stage".
[36] It is, however, clear that the Tribunal of Commissioners took the view that Dr. A. was disqualified by reason of the fact that there was concern that she might favour the opinions of other doctors, who, like her, provided reports to the Benefits Agency.
[37] In regard to the decision in Lawal v. Northern Spirit Limited, it is important to bear in mind that the critical feature of that case was the nature of the relationship between the part-time judge and the wing members. At paragraph 21 Lord Steyn said:
"The observer is likely to approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected to develop a fairly close relationship of trust and confidence with the judge".
In the present case, as was pointed out by the Dean of Faculty, there is no relationship of lay to professional or of subordinate to superior. There is nothing to show the likelihood of deference.
[38] That being so, one returns to the proposition that the association of Dr. A. with other EMPs would be sufficient to give rise in the mind of the reasonable and well-informed observer to an apprehension of bias. Such an observer would surely be blessed with the knowledge that Dr. A and the other EMPs were independent expert advisers in carrying out the work of examining and reporting to the Benefits Agency. If so, why should they not be regarded as independent of each other when it came to the assessment of, and adjudication between, competing medical opinions before the tribunal? There was considerable force in the submission made by the Dean of Faculty that there is a danger that, if Dr. A. should be regarded as disqualified in the present type of case, the same type of objection could be based simply on the membership of a professional body. This is not, of course, the basis which the Tribunal of Commissioners adopted for their decision. However, it does highlight the need to consider whether pointing to a subset of certain professionals involves a distinction without a true difference. We take account of the approach which was taken by The Appeals Service in regard to cases in which EMPs should not sit as members of a tribunal. However, the relevance which that has for the present case is affected by the fact that the singling out of "all work test" examinations appears to have been based simply on the fact that such examinations took place at the premises of the Department. It was urged upon us that, in view of their accumulated experience of the working of tribunals, their members and the evidence provided to them, we should be slow to interfere with a decision of the Tribunal of Commissioners. We would see the force of that submission in a case which was concerned intimately with the Social Security legislation and the practice and procedure of tribunals. However, the present case presents a specific example of a general point relating to public confidence in the process of adjudication. In these circumstances, while we do not hesitate to accord respect for the view of the Tribunal of Commissioners, we do not consider that, because of their familiarity with the Social Security scene, we should on that account defer to their view of the matter at issue. Having considered the factual circumstances we are of the view that the fact that Dr. A. carried out examinations and provided reports for the Benefits Agency as an EMP would not be sufficient to raise in the mind of the reasonable and well-informed observer 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 be such as to raise such an apprehension.[39] We should add that we were referred in the course of argument to a decision of Commissioner Mesher on 5 September 1995 (File CDLA/224/94), in which he held that he was not satisfied that there was a danger of bias where a medical member of a disability appeal tribunal also held appointment as an adjudicating medical practitioner (AMP). For the respondent it was submitted that this decision was of no assistance since the functions of an AMP were different from those of an EMP, and since the Commissioner had applied the test in R. v. Gough and, for that purpose, had considered the relevant association as being all doctors. Furthermore, the decision had been made in 1995. We do not need to enter into an examination of these points, since we have been able to reach our conclusion without any need to rely on that decision or the reasons of the Commissioner.
[40] As we have noted above, the Tribunal of Commissioners attached some slight significance to the tenure of appointment enjoyed by Dr. A. The appellant submitted that this matter was of no significance for the purposes of determining the present appeal, and the respondent did not advance any contrary argument. We agree with the appellant.
[41] In the circumstances we will allow the appeal, quash the decision of the Tribunal of Social Security Commissioners dated 15 June 2001 and restore the decision of the Disability Appeal Tribunal dated 15 July 1999.