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Cite as: [2022] ScotCS CSIH_20, 2022 GWD 15-233, [2022] Pens LR 7, [2022] CSIH 20

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2022] CSIH 20

XA40/21

Lord Justice Clerk

Lord Turnbull

Lord Doherty

OPINION OF THE COURT

delivered by LORD DOHERTY

in the Appeal by Stated Case under section 151(4) of the Pension Schemes Act 1993 and

Rule 41.12 of the Rules of the Court of Session 1994 by

Appellant

against

(1) MYCSP; (2) SCOTTISH PRISON SERVICE; (3) ADVOCATE GENERAL FOR

SCOTLAND, for and on behalf of the CABINET OFFICE

Respondents

______________

Appellant: Allison; BTO Solicitors LLP

Respondents: Roxburgh; Office of the Advocate General

26 April 2022

Introduction

[1]

This is an appeal by stated case by the appellant against a final written determination

of the Pensions Ombudsman (the "PO") dated 21 December 2020. That determination did

not uphold a complaint by the appellant of maladministration on the part of the first

respondent.

Background

[2]

Until 16 September 2016 the appellant was employed by the second respondent as a

residential prison officer. That employment brought him within the scope of the Civil

Service Injury Benefit Scheme ("the Scheme") made under section 1 of the Superannuation

Act 1972. The Scheme is administered by the first respondent on behalf of the third

respondent. Prior to his employment ceasing the appellant had been absent from work for a

lengthy period because of depression, and it had been determined that he had suffered a

qualifying injury in terms of the Scheme. After his employment ended he applied to the

Scheme for an award of permanent injury benefit ("PIB").

The Scheme and the Guide

[3]

In terms of the Scheme (rule 1.3(i)) PIB may be paid to an employee who suffers an

injury in the course of official duty, provided that such injury is mainly or wholly

attributable to the nature of that duty. PIB is a discretionary benefit. A person is eligible for

PIB when they suffer a qualifying injury that impairs their general earning capacity by more

than 10%. A person whose earning capacity is impaired through injury may be paid an

annual allowance and lump sum in accordance with the Scheme Medical Adviser's medical

assessment of the impairment to his earning capacity (rule 1.6(i)). The amount of the

benefits depend, inter alia, on the degree of impairment (rule 1.7, and paragraph 7.2 of the

Scheme Medical Reviews and Appeals Guide ("the Guide")). More than 10% but not more

than 25% is "slight impairment"; more than 25% but not more than 50% is "impairment";

more than 50% but not more than 75% is "material impairment"; and more than 75% is

"total impairment".

[4]

If the Scheme Medical Adviser ("the SMA") assesses that a person's earning capacity

has been impaired by more than 10%, the first respondent asks the SMA to advise if the

impairment is `mainly or wholly attributable' to a person's duty (rules 1.7 and 1.9). If it is

mainly attributable the SMA proceeds to apportion the PIB award in accordance with the

provisions set out in paragraph 8.3 of the Guide.

[5]

The Guide provides:

Apportionment

8.1

In addition to an impairment of earnings assessment, for qualifying injuries

sustained on or after 1 April 2003, the Scheme Administrator or the employer must

ask the SMA to advise on whether the illness is `wholly' (more than 90%) or `mainly'

(more than 50% but less than 90%) attributable to the nature of the duty.

...

8.3

Where a person meets the mainly attributable test then the SMA will go on to

apportion the extent to which their duties caused their injury.

Apportionment is assessed in three bands:

Low

50 70% attributable to duty

Medium

71 90% attributable to duty

High

above 90% attributable to duty

Process

The formal injury benefit appeal procedure has only one stage; however, two

separate appeals can be made within the appropriate period (12 months of the initial

award decision). Any appeal should be made within 12 months of the initial Award

decision. The second appeal may be notified up to and including the day the 12-

month period ends. Under these circumstances, the appeal process may go beyond

12 months in its entire duration.

Action by the Member

9.1.1 All appeals must be made in writing. The letter of appeal should set out the

basis for the appeal (for example, against the level of apportionment/or impairment

of earnings capacity). 9.1.2 New medical evidence must be presented with the

appeal...

...

Action by the SMA

9.1.7 Whether considering a first or second appeal there are three different options

open to the SMA.

Uphold the appeal returning the case to MyCSP or the employer for a final

decision.

Reject the appeal (it goes no further) remitting the case back to the

authorising authority/ employer for a final decision.

Referring a borderline case to a physician independent of the medical adviser

for a further paper-based assessment. Either the chief medical adviser or

deputy chief medical adviser to the contract would only [sic] make such a

referral. The independent physician may uphold or reject the case at this final

stage, remitting it back to the authorising authority/employer for a final

decision.

9.2

A first appeal

9.2.1 A senior physician will consider the appeal in the light of the new medical

evidence provided by the member. The senior physician who considers the first

appeal will be different from the one who made the original decision.

9.2.2 The appeal is normally considered based on the information submitted.

However, a consultation may be required if the physician considers it necessary.

9.2.3 The first appeal may uphold the original decision or result in an increase to

the level of award.

9.3

A second appeal

9.3.1 Any second appeal is considered by a SMA physician different from either

the one who gave the original advice and/or who considered the first appeal. In most

cases, the physician considering the second appeal will be a senior physician.

9.3.2 Any second appeal may do as the first appeal but can, in addition, lower the

level of apportionment and/or earnings impairment if the new medical evidence

justifies it.

9.3.3 This completes the formal injury benefit appeal arrangement..."

The SMA

[6]

At the material times the SMA services were provided to the first respondent by

Health Management Limited ("HM").

The appellant's application for PIB

[7]

The SMA doctor who first considered the appellant's application was Dr Saravolac.

On 13 September 2017 Dr Saravolac concluded that the appellant's earning capacity had

been impaired by less than 10%. Thereafter, the appellant's application was further

considered by another of the SMA's doctors, Dr Pamela Collins. On 29 November 2017

Dr Collins reached the same conclusion as Dr Saravolac. On 9 January 2018 the first

respondent advised the appellant that his application had been rejected as the degree of

impairment of his earning capacity had been assessed as less than 10%.

The PIB appeals

The first appeal

[8]

On 11 June 2018 the appellant appealed against the determination of 9 January 2018.

He challenged the assessment of impairment of his earning capacity. He did not challenge

the apportionment. The SMA senior physician appointed to conduct the appeal was Dr Lisa

Birrell, a consultant occupational physician. She issued a report on 4 April 2019 and an

amended report on 23 April 2019. She assessed the degree of apportionment as in the 71%

to 90% "medium band" and the degree of general earnings capacity impairment as 10% to

25%, "slight impairment".

The second appeal

[9]

On 28 April 2019 the appellant made a second appeal. Although that was more than

12 months after the determination of 9 January 2018 the first respondent concluded that

there were good reasons to allow the second appeal to proceed. In particular, it was made

only 5 days after Dr Birrell's amended report was issued.

[10]

By the time of the second appeal all of the SMA's senior physicians had been

involved in the appellant's case. There was no senior physician on the staff of the SMA who

satisfied the requirement of paragraph 9.3.1 of the Guide that they be "different from either

the one who gave the original advice and/or who considered the first appeal". In late

September 2019 the SMA advised the appellant of that fact and that it would appoint an

external senior physician to consider the appeal. It appointed Dr Mark Groom, consultant

occupational physician, and the medical file was sent to him on 7 November 2019.

[11]

Dr Groom's report was dated 12 February 2020. The first page contained four pro

forma sections. Section 1 contained formal details relating to the appellant and it recorded

that his injury, depression, had been sustained prior to 12 June 2014. Section 2 was designed

to list the material the physician considered but all that was inserted was "As previously

listed and included in text". Section 3 set out the different possible degrees of impairment of

general earning capacity, and box 3, "3. 25% - 50% Impairment" had been ticked. Section 4

set out the different possible degrees of apportionment, and box 2, "2. The illness is 71 90%

attributable Medium band" had been ticked. Section 5 of the report contained the reasons

for Dr Groom's recommendation. It began:

"Thank you for asking me to consider [the appellant's] second appeal under the

provisions of the Civil Service Injury Benefit Scheme. I confirm that I have not had

any previous involvement in this case. I am an independent specialist occupational

physician and a Fellow of the Faculty of Occupational Medicine. I confirm that I have

received a considerable bundle of documents for this appeal. I have considered all

the medical evidence in the bundle and note the outcome from the first appeal,

considered by Dr Birrell and submitted to the employer in revised form on 23 April

2019. In addition to that evidence I have noted [the appellant's] written submission

dated 7 August 2019 and the new medical evidence that he submitted to support his

second appeal."

The report listed all the material which Dr Groom had available to him. In a passage headed

"Opinion Degree of Apportionment" Dr Groom concluded:

"Given the foregoing consideration of the available medical evidence I consider that

it is not unreasonable to attribute up to 90% of the illness [the appellant] suffers to

the agreed qualifying injury... Whilst it is clear that the majority of the attribution of

his current mental health problems lies with the agreed qualifying injury sustained at

work, I consider that it is reasonable to apportion up to 10% as being the result of

pre-existing mental health problems and personality traits. I therefore agree with the

previous decisions that 71-90% of the illness should be considered attributable to the

qualifying injury, which were accepted by [the appellant] until this appeal."

In a later passage headed "Earnings Impairment" Dr Groom stated:

"Despite [the appellant] not identifying this is as a matter for appeal I will deal with

it... I consider that [the appellant] continues to retain capacity for work. I believe that

it is not unreasonable to conclude that if [the appellant] focussed on recovery rather

than his sense of injustice, then a capacity for work would very much be in his best

interests... I therefore consider that with further treatment, as identified by Dr Wylie

in late 2018, and commitment from [the appellant] to move on and recover, that he

could undertake useful and beneficial work well before his state retirement age... I

do not believe that the evidence available to me supports the contention that [the

appellant's] earnings capacity equates to more than 75% earnings impairment."

[12]

It appears that at the time of completion of his report Dr Groom did not have access

to HM's online HMLO system to check and complete the report. It was common ground

that, in order to assist Dr Groom, Dr Birrell accessed HMLO for him and completed

sections 1-4 of the report using the information which Dr Groom had provided in section 5.

Dr Birrell's email of 12.36 on 10 February 2020 confirmed that she proposed to do that. It is

also noteworthy that at that time Dr Birrell was HM's Pensions Medical Director.

The Pension Schemes Act 1993

[13]

Part X of the Pensions Schemes Act 1993 ("the 1993 Act") provides:

"146 Functions of the Pensions Ombudsman.

(1)

The Pensions Ombudsman may investigate and determine the following

matters

(a)

a complaint made to him by or on behalf of an actual or potential

beneficiary of an occupational or personal pension scheme who alleges that

he has sustained injustice in consequence of maladministration in connection

with any act or omission of a person responsible for the management of the

scheme,...

...

149

Procedure on an investigation.

...

(2)

The Secretary of State may make rules with respect to the procedure which is

to be adopted in connection with the making of complaints, the reference of disputes,

and the investigation of complaints made and disputes referred, under this Part.

...

(4)

Subject to any provision made by the rules, the procedure for conducting

such an investigation shall be such as the Pensions Ombudsman considers

appropriate in the circumstances of the case; and he may, in particular, obtain

information from such persons and in such manner, and make such inquiries, as he

thinks fit.

...

151

Determinations of the Pensions Ombudsman.

...

(4)

An appeal on a point of law shall lie to the High Court or, in Scotland, the

Court of Session from a determination or direction of the Pensions Ombudsman at

the instance of any person falling within paragraphs (a) to (c) of subsection (3)."

The appellant's complaint to the PO

[14]

On 10 August 2020 the appellant made a complaint to the PO of maladministration

by the first respondent. The complaint contained five parts. One of them was not accepted

for investigation because it was a complaint about HM and it was not within the PO's

jurisdiction. It is only necessary to refer to two of the other heads, which concerned the

appointment of Dr Groom and his decision on apportionment.

[15]

The complaint which the appellant made about Dr Groom's appointment was that

the first respondent indicated that an independent external physician would consider the

second appeal; but that, notwithstanding the appellant's request, the SMA did not disclose

the identity of the external physician, his post, or for whom he worked. The complaint

continued:

"Dr Groom is the Medical Director of the SMA Health Management. He has a

working relationship with Dr Birrell, Dr Collins and Dr Saralavac. He is therefore not

external or independent. It is clear why the SMA were so reluctant to disclose his

position. I appeal to the Ombudsman that Dr Groom had a bias towards his

colleagues... I was assured by the SMA that this report would be compiled and

decided on by an Independent External clinician of the SMA Health Management.

This clearly (sic) a premeditated action to mislead me."

[16]

The complaint which the appellant made about the apportionment decision was that

his injury ought to have been determined to be wholly attributable to his work duties. He

maintained that Dr Groom was wrong to attribute 10% of the impairment to pre-existing

mental health issues; and that such an attribution was not supported by the entries in the

appellant's medical records or by the fact he had not had to take time off work for anxiety or

depression before the work injury was sustained.

[17]

The complaint of 10 August 2020 was considered in the first instance by a senior

adjudicator in the PO's office. In his Opinion of 26 November 2020 the adjudicator

concluded (paragraph 169) that the evidence did not support upholding the appellant's

complaint. In his view (paragraph 144) the appointment of Dr Groom had been reasonable

in the circumstances. Moreover, the appellant had not had a right to have the appeal

considered by an external clinician independent of HM. The adjudicator continued:

"145. [The appellant] says Dr Groom's opinion was biased towards his former

colleagues. My view is that Dr Groom considered the available medical, and other,

evidence and reached his own opinion. As a medical professional, Dr Groom could

be expected to offer an unbiased opinion based on the facts of the case. [The

appellant] has offered no evidence of bias on Dr Groom's part."

In relation to apportionment, the adjudicator observed:

"147. It was for Dr Groom to weigh up all the evidence and reach a conclusion.

Dr Groom attached most weight to Dr Wylie's 2017 report on the grounds that

Dr Wylie had spent considerable time with [the appellant} and had access to all the

GP records, the occupational health notes, and hospital records. Dr Wylie gave his

opinion that [the appellant] had a recurrent depressive disorder. Dr Wylie said this

was based on the medical records indicating that [the appellant] had previously

suffered from depressive episodes sufficiently severe for the GP to treat him with

antidepressant medications. Dr Wylie maintained his position in his 2018

supplementary report."

In the adjudicator's view there was no reason why the first respondent should not have

accepted Dr Groom's opinion on apportionment (paragraph 150).

The final determination

[18]

The appellant did not accept the adjudicator's Opinion and the complaint was

passed to the PO for determination. On 21 December 2020 the PO issued his final

determination. He did not uphold the complaint. He agreed with the Opinion of the

adjudicator.

[19]

In relation to the use of Dr Groom the PO stated (the emphasis is ours):

"120. ... I agree with the Adjudicator that procedurally there was no requirement for

[the appellant's] appeal to be considered by an external physician independent of

HM. Nevertheless, Dr Groom had left HM and confirmed that he was an independent

specialist. I do not consider that Dr Groom's opinion has been shown to have been

biased by his past association with HM. As the Adjudicator said, as a medical

professional, Dr Groom can be expected to give a medical opinion based on the facts

of the case. The onus is on [the appellant] to show any bias and he has failed to do so.

Unsubstantiated allegations of bias should not and do not form a basis for finding

that MyCSP should not have relied on Dr Groom's advice."

Accordingly, while at one point there was some dispute between the appellant and the first

and second respondents as to Dr Groom's circumstances at the time of his appointment, it is

clear that the PO accepted the evidence (which he narrated in paragraph 103 of the

determination) that Dr Groom ceased to be HM's Medical Director in July 2016 and that he

ceased to do occasional consultancy work for HM in September 2019.

[20]

So far as Dr Birrell's involvement in the completion of sections 1 to 4 of Dr Groom's

report are concerned, the PO observed (paragraph 124) that the information contained in

sections 1, 3 and 4 is contained in section 5. He continued:

"125. There is no suggestion that Dr Groom colluded with Dr Birrell in the

completion of section five of the Form, or that the text from Dr Groom's "Dr to

Dr report" was not correctly transferred to section 5 of the Form.

126.

I do not find that the sections of the Form completed by HM changed the

outcome of Dr Groom's opinion causing [the appellant] injustice."

[21]

The PO dealt with the question of apportionment at paragraphs 127-145 of his

determination. He was not satisfied that there were any good grounds for concluding that

the first respondent was not entitled to accept Dr Groom's opinion.

[22]

In concluding his determination the PO observed (in relation to the whole of the

complaint which had been investigated):

"146. [The appellant] has been at pains to highlight points at which the processing

of his PIB application may have been less than ideal. However, for me to uphold a

complaint, it is not simply the case that I must identify maladministration; I must

also be satisfied that the individual has also, as a result, sustained injustice. [The

appellant] appears to have lost sight of this fact. The outcome of his case had not

been affected by the sometimes less than perfect approach taken by MyCSP (or HM)

and consequently he has not sustained injustice.

147.

I do not uphold [the appellant's] complaint."

The Stated Case

[23]

On 8 January 2021 the appellant requested the PO to state a case for appeal to the

Court of Session. The PO issued the stated case on 22 July 2021. It contained four questions

of law. However, the appellant does not insist upon two of the questions being answered.

The remaining questions are:

"Question 6.3

Did the Ombudsman err in law by finding that it was reasonable, in the

circumstances in which [it] was produced and Dr Groom's professional involvement

with HM, for MyCSP to rely on Dr Groom's report?

Question 6.4

Did the Ombudsman err in law by not finding that the medical evidence presented

to and considered by MyCSP and its conduct throughout the process, taken in the

round, amounted to maladministration after May 2018?"

[24]

We find it unnecessary to rehearse the findings in fact made in the stated case. In

large part they reflect the findings made by the adjudicator in his opinion and by the PO in

his determination. However, we draw attention to a finding at paragraph 1.97 because it is

relevant to the argument relating to apportionment which counsel for the appellant sought

to advance:

"On 19 February 2020, [the appellant] received the completed report signed by Dr

Groom from HM ("Dr Groom's Report"). In section five, Dr Groom assessed [the

appellant's] degree of apportionment as in the 71% to 90% `medium' band..."

Part 3 of the Stated Case is headed "Conclusions found in fact and in law". Paragraphs 3.3

and 3.4 state:

"3.3

On Dr Groom's appointment to review [the appellant's] second PIB appeal,

and Dr Groom's independence from HM:

3.3.1 For the reasons set out below in paragraphs 5.2.1 to 5.2.12, it was reasonable

for Dr Groom to provide his medical opinion on [the appellant's] second PIB appeal.

Procedurally there was no requirement for [the appellant's] appeal to be considered

by an external clinician independent of HM, the appointed SMA.

3.3.2 Dr Groom could reasonably be expected to offer an unbiased opinion based

on the facts of the case.

3.4

On apportionment:

3.4.1 For the reasons set out below in paragraphs 5.3.1 to 5.3.4, it was for Dr Groom

to weigh all the evidence and reach a conclusion.

3.4.2 It was for Dr Groom to decide whether he required a face to face consultation

with [the appellant].

3.4.3 It was reasonable for HM, after referring the medical evidence file to

Dr Groom on 7 November 2019, to refuse to refer the additional medical evidence

sent by [the appellant] to MyCSP after 7 November 2019.

3.4.4 There was no reason why MyCSP should not have accepted Dr Groom's

opinion on apportionment."

Part 4 of the Stated Case is headed "Conclusions not found in fact and in law".

Paragraphs 4.4, 4.5 4.11 and 4.12 state:

"4.4

I do not find that there is evidence of bias by Dr Groom towards his former

colleagues at HM.

4.5

I do not find that there is evidence that Dr Groom colluded with Dr Birrell in

the completion of section five of the Form completed in February 2020.

...

4.11

I do not find that the sections of Dr Groom's Report completed by HM

changed the outcome of Dr Groom's opinion causing [the appellant] injustice.

4.12

I do not find that [the appellant] has, as a result of maladministration by

MyCSP after May 2018, sustained injustice."

Paragraphs 5.2.3 and 5.2.10 state:

"5.2.3 [The appellant] said Dr Groom's opinion was biased towards his former

colleagues, but Dr Groom's Report shows that he had considered the available

medical, and other, evidence and had reached his own opinion.

...

5.2.10 [The appellant] has offered no evidence of bias on Dr Groom's part, or of

collusion between Dr Birrell and Dr Groom."

Paragraphs 5.3.1 to 5.3.3 narrate Dr Wylie's opinion that the appellant had a recurrent

depressive disorder and that Dr Wylie was able to identify relevant entries in the medical

records which supported that conclusion. Dr Groom had attached most weight to Dr Wylie's

diagnosis because he had spent a considerable time with the appellant and had access to all

of his medical records. Paragraph 5.3.4 stated:

"5.3.4 Based on the medical evidence, Dr Groom gave his opinion that it was not

unreasonable to attribute up to 90% of [the appellant's] illness to the agreed

qualifying injury."

Submissions for the appellant

[25]

Counsel for the appellant invited the court to answer Questions 6.3 and 6.4 in the

affirmative, to recall the determination of the PO, and to substitute a determination that the

matter be remitted to the first respondent for (i) the appointment of a new, external clinician

and (ii) reconsideration of the appellant's second appeal. He submitted that each of the

grounds of appeal identified an error of law by the PO in the application of legal principle to

the facts of the appellant's case (Anderson v Imrie 2018 SC 328, Lord Brodie at para 35).

Where, as here, the decision appealed did not involve the evaluation of credibility or

reliability, the appellate court is generally in as good a position as the first instance decision -

maker to form its own view, subject to appropriate weight being given to the latter's

judgement (Benmax v Austin Motor Co Ltd [1955] AC 370, Viscount Simonds at p 374, and

Lord Reid at p 376).

Question 6.3

[26]

The submission was that Dr Groom's appointment was tainted by apparent bias, and

that the first and third respondents' reliance upon Dr Groom's report constituted

maladministration which had resulted in injustice to the appellant. The PO had erred in law

in failing to recognise that. On a fair reading, the appellant's complaint of 10 August 2020

had raised not just the issue of actual bias, but also an issue of apparent bias. Even if the

latter issue had not been expressly raised, in the circumstances the PO ought to have

considered it (cf. Pearson v J Ray McDermott Diving International plc 2006 SLT 725, Opinion of

the Court delivered by Lord Osborne at paragraphs [5] and [9]). He had not done so. He

had only addressed the issue of actual bias. That omission was an error of law. Had he

addressed the question of apparent bias he would have found that the fair-minded and

informed observer, having considered the facts, would conclude that there was a real

possibility that Dr Groom was biased (Porter v Magill [2002] 2 AC 357, Lord Hope of

Craighead at paragraph 103; Helow v Secretary of State for the Home Department 2009 SC (HL)

1, Lord Mance at paragraph 39). The fair-minded and informed observer will be "neither

complacent nor unduly sensitive or suspicious" (Johnston v Johnston (2000) 201 CLR 488,

Kirky J at paragraph 53; Helow, paragraph 39). Here there were a number of circumstances

which, taken cumulatively, would have led the observer to conclude that there was a real

possibility that Dr Groom was biased. First, on 29 October 2019 the appellant was given,

and relied upon, HM's assurance that his second appeal would be decided by an

independent senior clinician, and after Dr Groom's appointment HM and/or the first

respondent referred variously to Dr Groom being "external", "independent" and a "third

party". Second, that at the time of the second appeal Dr Groom may have been HM's

Medical Director. There had been conflicting information about whether that was the case.

The PO ought to have investigated the issue and made findings in fact in relation to it. It

was relevant that the appellant had made a number of complaints against HM. As Medical

Director Dr Groom "would have been involved" in handling complaints. Third, Dr Groom's

connection with HM was not disclosed by him or by HM (cf. Davidson v Scottish Ministers

(No. 2) 2005 1 SC (HL) 7, Lord Bingham of Cornhill at paragraph [19]). Fourth, HM did not

disclose Dr Groom's identity when the appellant inquired who had been appointed. Fifth,

as Medical Director Dr Groom would have had "direct management responsibility" for

Dr Birrell. Sixth, the fact that Dr Birrell completed sections 1 to 4 of Dr Groom's report

suggested that there had been contact between those doctors in relation to the report.

Seventh, Dr Groom was not a judge, and accordingly the assumptions of impartiality and of

ability to disregard the views of others which applied in the case of judges were not in play

(Helow, Lord Hope of Craighead at paragraph [8], Lord Cullen of Whitekirk at

paragraph [30]).

Question 6.4

[27]

Question at 6.4 was only insisted upon in one narrow respect. It was submitted that

Dr Groom's statement on page 6 of his report that "it is reasonable to apportion up to 10% as

being the result of pre-existing mental health problems..." was materially inconsistent with

his decision on apportionment, and did not support the first respondent's decision on

apportionment. That had been maladministration by the first respondent which had caused

injustice to the appellant. The PO had erred in law in not recognising that.

[28]

Counsel accepted that this point had not been raised by the appellant before the PO.

However, he maintained that Question 6.4 was wide enough to encompass it. If the court

disagreed, counsel invited it to exercise the power in rule 41.22(a) to allow the following

question to be substituted for Question 6.4:

"6.4

Did the Ombudsman err in law in finding that the decision on apportionment

by the First Respondent in March 2020, based upon Dr Groom's report of

12 February 2020, did not involve maladministration which caused the Appellant

injustice."

[29]

In any case, the court had a discretion to allow a new point to be raised (Notting Hill

Finance Ltd v Sheikh [2019] EWCA Civ 1337, Snowden J at paragraph 21). It ought to exercise

that discretion in the appellant's favour. The appellant had been unrepresented before the

PO and the respondents would not be prejudiced by the introduction of the point at this

stage.

Submissions for the third respondent

[30]

Counsel for the third respondent invited the court to answer Questions 6.3 and 6.4 in

the negative.

[31]

The decision of specialist bodies, such as the PO, should be respected unless there

was clear error of law (cf. Proctor & Gamble UK Limited v HMRC [2009] STC 1990, at

paragraphs 11, 48 and 74 in respect of specialist tribunals). As Mummery LJ observed in

Wakelin v Read [2000] Pensions Law Reports 319 at paragraphs 39-40:

"39.

Under section 151(4) there is an appeal to the High Court from a

determination or direction of the Ombudsman `on a point of law'. There is no appeal

on fact ... It is irrelevant that the High Court or the Court of Appeal would have

taken a different view from him on the evidence revealed in his investigation. The

Ombudsman is the sole judge of fact and he can only be corrected on errors of law.

40.

The only question for the High Court and for this court, on appeal from the

High Court, is this: is there an error of law in the determination or direction of the

Ombudsman? In answering that restricted question the appellate court should be

astute not to entertain appeals on points of fact dressed up as points of law ... In this

exercise the written statement of the determination must be read broadly and fairly.

The findings of fact and the reasons for the determination should not be subjected to

minute, meticulous or over-elaborate critical analysis in an attempt to find a point of

law on which the disappointed party to the reference can appeal."

Four different categories of errors of law had been identified in the Opinion of the Court

delivered by Lord Drummond Young in Advocate General for Scotland v Murray Group

Holdings plc 2016 SC 201 at paragraphs 42-43. In the present case there had been no real

analysis as to why the circumstances relating to either of the appellant's grounds of appeal

were said to have given rise to maladministration on the part of the first respondent in

consequence of which the appellant had sustained injustice.

Question 6.3

[32]

It was clear that the appellant's complaint to the PO had been one of actual bias by

Dr Groom. At no point had he advanced a complaint of apparent bias. In those

circumstances the PO could not be criticised for not addressing a case which was not

advanced before him. It was not open to the appellant to seek to advance to the court a case

which he had not advanced to the PO. Pearson v J Ray McDermott Diving International plc

was not authority for the proposition that where a case of actual bias is advanced a court

ought also generally to consider the question of apparent bias. In Pearson the court had

concluded that some of the allegations in the pursuer's grounds of appeal were in fact

allegations of actual bias.

[33]

Besides, the matters upon which the appellant relied did not indicate the existence of

apparent bias. The fair-minded and informed observer would be aware that in the normal

course the senior physician considering a second appeal would be a Scheme Medical

Adviser physician in HM's employment with no previous involvement in the case, and that

that senior physician could be depended upon to perform his professional duties objectively

and impartially. They would be aware that Dr Groom is a medical professional subject to

professional standards and obligations, and that he could be expected to adhere to those

standards and obligations when considering the second appeal. They would assume that

physicians like Dr Groom are intelligent and capable of forming their own views on medical

issues and would be astute to the importance of doing so. It was plain that Dr Groom had

formed his own view. He had disagreed with Dr Birrell on the issue of the extent of

impairment to general earning capacity. In that regard, his finding had been more

favourable to the appellant than Dr Birrell's finding. It was clear that the PO accepted that

Dr Groom's association with HM ceased prior to his appointment to consider the second

appeal. There were no findings in fact which supported the appellant's assertions (i) that Dr

Groom was the HM's Medical Director at the material time; (ii) that he was Dr Birrell's "line

manager" and "supervised" the preparation of her report in the first appeal; (iii) that he

would have dealt with the appellant's complaints about HM. Nor was there a finding that

the appellant was given "an assurance" that the senior physician considering the second

appeal would be external. He was told that was happening, and why, but there had been

nothing in the nature of an "assurance". Counsel for the appellant had been unable to

specify how it was said that the information provided had been acted upon, and he had

made clear that he did not seek to suggest that its provision gave rise to a legitimate

expectation upon which the appellant had relied to his detriment. There had been no

requirement for Dr Groom to declare his previous employment by HM. HM had been well

aware of it, and in the circumstances it was not a matter which might have given rise to a

reasonable apprehension of lack of impartiality. Non-disclosure was not relevant because a

fair-minded and informed observer would not have thought that there was anything even to

consider disclosing. They would be much more likely to conclude that it never crossed

Dr Groom's mind that his previous connection with HM was something which was relevant

for him to disclose (cf. Helow, Lord Mance at paragraph 58).

Question 6.4

[34]

Even if the appellant ought to be permitted to argue this ground for the first time on

appeal, it was ill-founded. The insuperable problem for the appellant was the clear finding

of fact at paragraph 1.97:

"...In section five, Dr Groom assessed [the appellant's] degree of apportionment as in

the 71% to 90% "medium" band..."

In order to succeed on this ground the appellant required to satisfy the Court that the PO

erred in law in making that finding. Contrary to the appellant's suggestion, this was not a

case where it may be said that the PO erred in applying the general law to the particular

facts (the second category identified in Advocate General v Murray Holdings Limited at

paragraph [42]). Rather, to succeed he must show that there was an error of law within the

third or fourth categories identified at paragraph [43]:

"[43] The third category of appeal on a point of law is where the tribunal has made

a finding `for which there is no evidence or which is inconsistent with the evidence

and contradictory of it.' (Inland Revenue Commissioners v Fraser, per Lord President

Normand, pp 497, 498.) This runs into a fourth category, comprising cases where the

First-tier Tribunal has made a fundamental error in its approach to the case: for

example, by asking the wrong question, or by taking account of manifestly irrelevant

considerations, or by arriving at a decision that no reasonable tax tribunal could

properly reach. In such cases we conceive that the Court of Session and the Upper

Tribunal have power to interfere with the decision of the First-tier Tribunal as

disclosing an error on a point of law (Edwards v Bairstow, per Lord Radcliffe, p 36)."

However, the appellant had made no attempt to demonstrate that the stringent

requirements of either the third or fourth categories were met. He had not shown that it was

not open to the PO to make the finding which he made.

[35]

In construing Dr Groom's report, it must be recalled that it was written by a doctor

and not a lawyer. It should be read against the background in which it was written with the

aim of identifying its intended meaning (see by analogy R (Macdonald) v Kensington and

Chelsea Royal London Borough Council [2011] UKSC 33, Lord Dyson JSC at paragraph 53). It

should not be subjected to a minute, meticulous or over-elaborate critical analysis in an

attempt to find a ground of challenge (Wakelin v Read, Mummery LJ at paragraph 40). The

appellant highlighted the statement "I consider that it is reasonable to apportion up to 10%

as being the result of pre-existing mental health problems and personality traits." and

suggested that it was incongruent with Dr Groom's decision that the apportionment band be

the medium band (71%-90%), rather than the high band (above 90%), because if "up to" 10%

is attributed to the appellant's pre-existing condition then 90% or more relates to the

qualifying injury. There were two difficulties with that argument. First, the high band

applies where over 90% is apportionable to the qualifying injury sustained at work.

Accordingly, if 10% of the injury relates to pre-existing problems, the figure is only 90%.

Second, the passage required to be read in context. The sentence that follows it reads:

"I therefore agree with the previous decisions that 71-90% of the illness should be

considered attributable to the qualifying in jury, which were accepted by [the

appellant] until this appeal."

Moreover, Dr Groom had already stated his conclusion, at the start of section 5 of his report,

that:

"Given the foregoing consideration of the available medical evidence I consider that

it is not unreasonable to attribute up to 90% of the illness [the appellant] suffers to

the agreed qualifying injury."

[36]

The PO was entitled to interpret Dr Groom's report as reaching a conclusion that it

was not unreasonable to attribute up to 90% of the appellant's illness to the qualifying

injury. That interpretation was not inconsistent with the evidence nor was it contradictory

of it. There was no basis for interfering with the finding in fact made by the PO.

Decision and reasons

[37]

We are grateful to counsel for their clear and able submissions. They have greatly

assisted us. However, ultimately, we have had no difficulty in reaching our conclusions.

[38]

We are not satisfied that the PO erred in law in deciding as he did. In our view his

decision was one which was open to him (cf. Anderson v Imrie, Lord Brodie at paragraph [36];

Lord Malcolm at paragraphs [87], [92], [93], [99]-[115]).

Question 6.3

[39]

We agree with counsel for the third respondent that the appellant's complaint about

Dr Groom was one of actual bias, not of apparent bias. Accordingly, we require to consider

whether the court ought to allow the new argument to be advanced. In Advocate General v

Murray Holdings Limited the court opined:

"[39] We are of opinion that in a statutory appeal of this nature it is competent for the

court to entertain a ground of appeal that has not been argued in the First -tier or

Upper Tribunals, although it should be slow to do so in any case where additional

findings of fact are required, and should not do so if unfairness results. The law on

this matter is in our opinion correctly stated by Sedley LJ in Miskovic and anr v

Secretary of State for Work and Pensions (para 124), where he referred to a number of

earlier cases and continued:

`None of these cases sets out a golden rule for the admission of new issues on

appeal, but all proceed on the assumption that there is no jurisdictional bar to

their being entertained in proper cases. It is an assumption which in my

judgment can be made good on a simple constitutional basis. The Court of

Appeal exists, like every court, to do justice according to law. If justice both

requires a new point of law to be entertained and permits this to be done

without unfairness, the court can and should entertain it unless forbidden to

do so by statute.'

We are in full agreement with that statement of the law, and for this reason we

consider that we should entertain HMRC's first ground of appeal, even though it was

not argued directly before the tribunals. We are satisfied that it requires no new

findings of fact; it proceeds on the First-tier Tribunal's findings of fact and the

accompanying documents. Indeed aspects of the ground appear to have been

canvassed to some extent before the First-tier and Upper Tribunals. We do not think

that allowing this ground gives rise to any unfairness to the respondents; detailed

notice of it was given in the grounds of appeal and the notes of argument, and

counsel for the respondent was able to present a full argument in response..."

[40]

In Notting Hill Finance v Sheikh the court observed:

"26

... Whilst an appellate court will always be cautious before allowing a new

point to be taken, the decision whether it is just to permit the new point will depend

upon an analysis of all the relevant factors. These will include, in particular, the

nature of the proceedings which have taken place in the lower court, the nature of

the new point, and any prejudice that would be caused to the opposing party if the

new point is allowed to be taken.

27.

At one end of the spectrum are cases such as Jones in which there has been a

full trial involving live evidence and cross-examination in the lower court, and there

is an attempt to raise a new point on appeal which, had it been taken at the trial,

might have changed the course of the evidence given at trial, and/or which would

require further factual inquiry. In such a case, the potential prejudice to the opposing

party is likely to be significant, and the policy arguments in favour of finality in

litigation carry great weight. As Peter Gibson LJ said in Jones (at [38]), it is hard to see

how it could be just to permit the new point to be taken on appeal in such

circumstances; but as May LJ also observed (at [52]), there might nonetheless be

exceptional cases in which the appeal court could properly exercise its discretion to

do so.

28.

At the other end of the spectrum are cases where the point sought to be taken

on appeal is a pure point of law which can be run on the basis of the facts as found

by the judge in the lower court: see e.g. Preedy v Dunne [2016] EWCA Civ 805 at [43]-

[46]. In such a case, it is far more likely that the appeal court will permit the point to

be taken, provided that the other party has time to meet the new argument and has

not suffered any irremediable prejudice in the meantime."

The court noted (paragraphs 17 and 30) that the first instance hearing in the case before it

had been for an order for possession made on a summary basis. It had lasted 7 minutes.

Given the very limited nature of the hearing and the binary decision to be made at it, the

most weighty reason identified in the authorities as to why a new point should not be

permitted to be advanced on appeal that it would subvert an evidential process which has

already taken place at a full trial in the lower court was not present (paragraph 32). The

claimant had suffered no prejudice (paragraph 33). The first instance hearing would not be

wasted (paragraph 34). The weight to be given to the policy of finality in litigation was

diminished in a case in which the litigation process had been very short-lived and summary

in nature, so that the time and resources that had been committed to the case by the parties

or the court had been very limited (paragraph 35). The fact that the defendant had been a

litigant in person at the hearing carried little weight:

"36.

... As Lord Sumption said in Barton v Wright Hassell LLP [2018] UKSC 12 at

[18], the rules and procedures of court apply equally to represented and

unrepresented parties, and the fact that a party is unrepresented can at most have a

limited effect in increasing the weight to be given to some other, directly relevant,

factor. In this case, the CPR 55 procedure and the defence forms to which I have

referred are designed to be straightforward and accessible to litigants in person, and

the other factors to which I have referred have sufficient weight on their own.

Accordingly, I do not consider that the Defendant's arguments are materially

enhanced by the fact that he was effectively unrepresented before the District Judge."

[41]

In the present case had the apparent bias argument been advanced to the PO he may

well have carried out other investigations and made additional findings in fact. This is not a

case where it may be said with confidence that the procedure and findings would certainly

have been the same, and that the question which arises is a pure question of law which may

fairly be determined on the basis of the findings which the PO made. Moreover, there has

been significant procedure before the PO in relation to the complaint, some of which may be

subverted if the new argument is permitted. The fact there has been significant procedure

also suggests that significant weight ought to be given to the policy of finality in litigation.

The appellant's arguments are not materially enhanced by the fact that he was

unrepresented. On balance, we do not consider that the court ought to exercise its discretion

to allow the apparent bias argument to be advanced on appeal.

[42]

In any case, we are not persuaded that the fair-minded and informed observer,

having considered the facts, would conclude that there was a real possibility that Dr Groom

was biased. In our view the factors relied upon by the appellant would not have that result.

We concur with counsel for the third respondent's analysis. Whether or not a physician was

employed by HM, the fair-minded and informed observer would expect him or her to act

properly in accordance with their professional ethics and obligations. The observer would

not be apprehensive that a senior physician would fail to make appropriate and

independent medical assessments. If they read Dr Groom's report it would be likely to

strike them as being objective and well-reasoned, and they would note that on the issue of

the extent of impairment to general earning capacity Dr Groom's finding is more favourable

to the appellant than Dr Birrell's finding. There are no findings in fact to support the

appellant's assertions (i) that Dr Groom was HM's Medical Director at the material time;

(ii) that he was Dr Birrell's "line manager" and "supervised" the preparation of her report in

the first appeal; (iii) that he would have dealt with the appellant's complaints about HM.

Nor is there a finding that the appellant was given anything in the nature of "an assurance"

that the senior physician would be external. Counsel for the appellant acknowledged that

the appellant could not maintain that he had a legitimate expectation in that regard upon

which he had relied to his detriment. In fact, here the PO accepted (paragraph 120 of his

determination) that Dr Groom's association with HM had ceased before his appointment to

consider the second appeal. The criticism that there is not a formal finding in fact to that

effect in the stated case sits ill in the appellant's mouth given that the apparent bias

argument was not advanced to the PO. Nor do we consider that the fair-minded and

informed observer would think (i) that Dr Groom's past association with HM was

something which he required to disclose; or (ii) that Dr Birrell's involvement in completing

sections 1 to 4 of Dr Groom's report affected its substantive content in any way.

[43]

It follows that we are not satisfied that the first respondent ought to have concluded

that it should not have relied upon Dr Groom's report because of apparent bias. Its decision

to rely upon it was not maladministration, let alone maladministration in consequence of

which the appellant sustained injustice. The PO did not err in law by not holding that it

was.

Question 6.4

[44]

The issue relating to apportionment which the appellant now wishes to argue is not

one which was advanced to the PO. However, on balance, we are satisfied we should

exercise our discretion to allow it to be argued. The weightiest factors in favour of following

that course are that the issue can be determined on the existing findings, without significant

prejudice to the respondents' interests. The weight to be given to those factors is enhanced a

little by the fact that the appellant was a party litigant at the material time. In the

circumstances of this case we consider that those factors outweigh factors which point the

other way viz. the policy in favour of finality in litigation; and the fact that there has been

significant procedure, at least some of which might be subverted were the appellant to

succeed in establishing this ground.

[45]

On the other hand, we are satisfied that the ground is not made good. There is a

clear finding in fact at paragraph 1.97 of the stated case that "... In section five, Dr Groom

assessed [the appellant's] degree of apportionment as in the 71% to 90% "medium" band...".

The appellant has not established that it was not open to the PO to make that finding on the

evidence before him. He has not shown that in making it the PO committed an error of law

falling within the third or fourth categories described by the court in Advocate General v

Murray Holdings Limited. That is sufficient to dispose of this ground of appeal. However, we

think it right to add that we agree with counsel for the third respondent that on a fair

reading of Dr Groom's report it contains no incongruence, and that it is clear that he

assessed the degree of apportionment as being within the 71% to 90% "medium" band.

Disposal

[46]

We answer Questions 6.3 and 6.4 in the negative and refuse the appeal. We reserve

meantime all questions of expenses.