DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

This appeal by the claimant succeeds.

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In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting at Sunderland and made on 18 September 2014 under reference SC 228/13/03740.  I refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

Reasons

1. Both parties agree that the decision of the tribunal was made in error of law, although for different reasons.  I need not set out the background and need only be brief in explaining my reasons for remitting the case.  
2. The appeal to the FTT was against a decision of the Secretary of State refusing to supersede a previous decision relating to an Industrial Injuries Disablement Benefit claim. The supersession application had been made on 10 December 2012 on the basis that a medical condition relevant to an award of that benefit had worsened. The FTT refused the appeal and the appellant, through his employment representative Association, applied for permission to appeal.
3. The application for permission to appeal was made on the basis that the medical member of the tribunal was biased against members of the representative Association.
4. The Regional Tribunal Judge granted permission to appeal not on that ground, but on the basis that the failure of the first-tier tribunal to deal with the argument that an operation which took place on 20 March 2012 to remove 3 discs in the applicant’s back was related to the index industrial injury may have been an error of law.
5. I directed the Secretary of State to provide a response to the appeal generally and in particular the issue raised by the learned Regional Judge. That is now to hand, and I am grateful to the Secretary of State’s representative Mrs Dean for her apt and helpful observations in relation to the legal issues.
6. I accept the argument set out in the Secretary of State’s submission in its entirety. I remit the case for re-hearing on that basis.  I need not add to the contents of the submission on the legal points relating to the supersession application which was and remains the subject of the appeal.  I add brief reasons as to my rejection of the ground of appeal put forward, that of bias on the part of a member of the tribunal.

Recusal of a judicial officeholder by reason of complaint of bias

7. An allegation of bias against a judicial office holder is always a serious one, and is taken seriously.
8. In this case the basis of that allegation is that the doctor in question had sat on a number of appeals in which the representative Association had taken part, and none of those appeals had succeeded.  There is nothing more than this bare, unsubstantiated point.
9. The Record of Proceedings kept by the Judge who presided at the hearing appears full in that it captures both the evidence and the submissions made. There is no mention of any application that the medical member recuse himself, that is to say that he should refrain from sitting on the appeal. The application for permission to appeal does not refer to an unsuccessful application that he should do so.  To allege bias after the decision is made where no point was taken on it at the appropriate time, that is beforehand, is misguided.
10. I will take this opportunity to explain a little about allegations of bias and the matters which may and may not lead to a successful application to judge or member recuse themselves.
11. The leading case on bias is still to my mind Porter-v Magill [2002] 2 AC 357, in which Lord Hope of Craighead at [103] set out the essential test as follows:

"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."

12. That test is a combination of the old common law doctrine of bias together with the requirements of article 6 for an independent and impartial tribunal. It is elaborated upon in Locabail (UK) Ltd. –v- Bayfield Properties [2000] 1 All ER 65 at [25] of the judgement given by Lord Woolf together with the then Master of the Rolls, Lord Phillips, and the then Vice-Chancellor, Sir Richard Scott.  

"25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers. By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him."

13. I quote that passage as examples of the issues with which a recusal application should, and should not, be concerned, and as an indication of the level of detail required.
14. I note further the dictum of Mr Justice Burton (as he then was) in Lodwick-v-LB Southwark [2005] UKEAT 0116 05 1306 that the fact that a tribunal has made a previous decision against a party or has made adverse comments in relation to that party does not entitle the party to a differently constituted tribunal. “Judges…should not be quick to recuse themselves, a course which will lead to inevitable and constant adjournments, to the prejudice of both parties. Further, it will encourage the making of unfounded allegations which will then be, just because it is easier to do so, complied with by a tribunal, and the slippery slope will be entered upon, which is specifically deprecated in the Locabail decision..”

15.  There are echoes of that view in the words of Lord Justice Chadwick   in Dobbs v Triodos Bank NV [2005] EWCA Civ 468 [7] "It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant -- whether it be a represented litigant or a litigant in person -- criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised -- whether that criticism was justified or not. ….[8] In the circumstances of this case, I have considered carefully whether I should recuse myself. Mr Dobbs has not advanced this morning any reason why I should approach his appeal with a disposition to decide against him; other than that he tells me that he is criticising me in relation to past conduct. That, I am afraid, is not a good reason for me to recuse myself.”

16. It follows from the passages that I have set out above that it takes an allegation of some particularity to warrant an application that a judge or member recuse themselves.  If such an application is not made it will be difficult if not impossible to pursue an appeal based upon bias; if a recusal application is made a judge or member will consider closely the issues surrounding actual bias or perception of bias but will not lightly recuse themselves and will not stand down because it is more comfortable to do so.
17. The allegation that formed the ground of appeal in this case had neither particularity nor did it follow the refusal of an application that the member should not continue to sit.  It was inappropriate and bound to fail.  
18. The fact that the appeal has succeeded at this stage on the other basis that I have identified above is not to be taken as any indication as to what the new tribunal might decide in due course.  For the avoidance of doubt I emphasise that my remitting the matter to a completely differently constituted tribunal is not related to the bias allegation that I have rejected.

Directions

1. These directions may be supplemented or changed by a District Tribunal Judge giving listing and case management directions.
2. The case will be listed as an oral hearing in front of a freshly constituted tribunal.   
3. The new panel will make its own findings on all relevant matters taking into account in particular the submission of the Secretary of State to the Upper Tribunal which I have approved.

Paula Gray

Judge of the Upper Tribunal      

Signed on the original on 11 June 2015