CSDLA/855/97

The Office of Social Security and Child Support Commissioners 
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM THE DISABILITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
COMMISSIONER: D J MAY QC

DECISION OF SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the disability appeal tribunal given at Motherwell on 18 September 1996 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted disability appeal tribunal for a rehearing.

2. The claimant made a claim for disability living allowance of 13 June 1995. An adverse decision was made in respect of the claim. Thereafter another adjudication officer reviewed that decision but decided not to revise it so as to award benefit. The claimant appealed against that decision.

3. The claimant’s appeal was heard on 18 September 1996. The appeal was unsuccessful.

4. Being a disability appeal tribunal there was a medical member of the tribunal. There was evidence before the tribunal in the form of a report from an examining medical practitioner. The principal ground of appeal was that the tribunal had breached the rules of natural justice by failing to advise the parties to the proceedings that the medical member of the tribunal was a partner in the same practice as the examining medical practitioner. It is apparent that from the reasons given by the tribunal that the basis upon which the claimant appeal failed was a preference for the examining medical practitioner’s report over the evidence given by the claimant.

5. I discovered in response to a direction that the claimant had only become aware of the fact that the medical member of the tribunal and the examining medical practitioner were in the same practice after the appeal tribunal’s decision had been made. This arose as a result of a discussion by the claimant’s representative with another representative.

6. The adjudication officer did not support the claimant’s appeal. The submission that was made by the adjudication officer was in the following terms:-
"5. In R (S) 4/82 the Commissioner held (paragraph 26) that -
"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances. It has described as "fair play in action" and its requirements depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so on ..."
 6. I respectfully submit a tribunal’s jurisdiction is inquisitorial, not adversarial. And in that context the predominant concern is that justice is done, that it is manifestly seen to be done, and that no unfair or arguable unfair advantage is taken of the claimant.
7. The claimant evidently believes justice was not done here because a member of the tribunal that heard her appeal was also a doctor working in the same practice as the one who acted as the EMP, and that this was not made known to the parties at the time. I respectfully submit I am unable to support the appeal of those grounds.
8. Decision R(I) 51/56 concerned a case in which a member of the tribunal which disallowed an appeal included an employee of the same company (an area officer of the National Coal Board) as the claimant. There was no impropriety in the constitution of the tribunal and the appointment to the tribunal of the officer in question was not a breach of natural justice.
9. And in R(I) 42/59 a coroner was heard not to be barred from sitting as the chairman of a tribunal dealing with an industrial injury question, where the subject of the appeal was a person, the inquest into whose death, the coroner had presided over. It was held there as no real likelihood of bias, and whilst it was undesirable that he chaired the appeal, there was no breach in natural justice because he had no pecuniary or other direct interest in the case.
10. Accordingly, I respectfully submit there was nothing amiss with a doctor sitting as a member of the tribunal albeit he worked in the same practice as the EMP. There was no real likelihood of bias, the doctor’s professional integrity ought to have ensured that, and they had no pecuniary or other direct interest in the matter."

7. I accept the proposition set out by the adjudication officer in paragraph 6 of his submission.

8. I am also satisfied that justice was not manifestly seen to be done in this case. The authorities quoted by the adjudication officer do not in my view have any applicability in this case. In the present case the appeal was clearly decided on a preference, as I have indicated, for the evidence of the examining medical practitioner as opposed to that of the claimant. The examining medical practitioner was not only known to a member of the tribunal which presided over the claimant’s appeal but was also in a close professional relationship with him. I do not doubt the integrity of the medical member of the tribunal but from the claimant’s point of view justice cannot be said to have been seen to be done.

9. I note what is said in paragraph 10 of the adjudication officer’s submission to the Commissioner, which is quoted above, and that gives rise to another matter. It was said by Lord Moncrieff in Wildridge v Anderson 25R(J) 27 at page 34:-
"The general and salutary rule is that no man can be a judge in his own cause, and that rule with certain limits is rigorously applied. The reason of it is obvious, viz. to ensure not merely that the administration of justice shall be free of bias that it shall be beyond suspicion. It is subject, however, to qualifications and exceptions. The result of the authorities which were cited to us may be stated as follows:-
1. As a general rule a pecuniary interest, if direct and individual, will disqualify, however small it may be.
2. An interest although not pecuniary may also disqualify, but the interest in that case must be substantial.
3. Where the interest which is said to disqualify is not pecuniary, and is neither substantial nor calculated to cause bias in the mind of the Judge, it will be disregarded, especially if to disqualify the judge would be productive of grave public inconvenience."
10. It is likely that the examining medical practitioner received a fee for acting in that capacity. It is common practice in medical and other partnerships for fees earned on a professional basis by partners to form part of the partnership income. I do not know whether or not this was the practice in the medical partnership of the 2 doctors concerned. However, as this is put by Lord Moncrieff, the administration of justice has not only to be free of bias but beyond suspicion. There is here a hint of pecuniary interest whether that in fact was the case or not. Though that does not amount to a direct pecuniary interest in the outcome of the case it is I think sufficient to result in the administration of justice not being placed beyond suspicion in the sense of a professional fee earned by a witness being shared by a member of the tribunal. For that reason also the decision of the tribunal must be set aside.

11. I must make it clear that I am not suggesting in any way that the medical member of the tribunal in this case acted in any way which was improper and I do not attribute any blame to him. However as matter of practice both for the freshly constituted tribunal and other tribunals it seems to me that if it is noted that the medical member of a tribunal is a member of the same practice as any examining medical practitioner or other medical witness in a case then this should be disclosed at the hearing so that jurisdiction can be declined.

12. That is sufficient to dispose of the appeal. However if I had not upheld the claimant’s appeal on the basis I did I would have been inclined to have accepted the adjudication officer’s submission on the merits. However it is not necessary for me to expand on that further standing the decision which I have given.

13. It will be open to the claimant to lead such evidence including evidence of deterioration as she sees fit. The freshly constituted tribunal will require to consider whether the claimant satisfies the conditions from the date of the claim down to the date of the hearing though if by the time of the rehearing the provisions of the Social Security Act 1998 altering the law in this respect have been brought into force the adjudication officer will require to make a fresh submission.

14. The appeal succeeds.

(Signed)

D J May QC
Commissioner 
18 August 1998