CI/1625/2002

1. This appeal by the claimant succeeds. I set aside the decision of the Blackpool tribunal of 7th January 2002 as having been made in error of law. In accordance with the provisions of section 14(8)(b) of the Social Security Act 1998 I refer the case to a completely differently constituted tribunal for a fresh hearing and decision. The new tribunal is not to include any member or chairman who sat on the medical appeal tribunal (“MAT”) on 24th September 1999 or on the tribunal whose decision is currently under appeal to me.
 
2. The claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence (including any evidence from Mr Maskell). My decision is based on procedural grounds and I make no comment on the substantive merits of the case. It is not necessary for me to consider arguments directed at the latter. Accordingly, the fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.

3. The claimant was born on 30th June 1944. On 9th August 1993 he was working as a maintenance technician when he slipped and injured his knee. It is accepted that this was an industrial accident. On 28th May 1997 the claimant made a claim for disablement benefit on the basis of the accident at work in 1993. After a series of provisional assessments, on 24th September 1999 the MAT assessed the extent of disablement resulting from the relevant loss of faculty at 15% from 22nd May 1999 to 21st May 2001. This was a final assessment. The claimant says that he continued to be affected by pain. On 18th June 2001 he applied for supersession of the MAT decision. Although the Secretary of State has presented this as an application based only on change of circumstances, it was also an application based on an argument that the tribunal had been in error in its prediction of how long the effects of the industrial accident would last. This would, if the claimant were correct, be a mistake of material fact. 

4. On 1st September 2001, after considering the report of a medical examination, the Secretary of State decided that the MAT decision should still stand. It is now understood that this is to be treated as a decision to supersede the MAT decision and replace it with a decision to the same effect. On 19th September 2001 the claimant appealed to the tribunal against that decision. 

5. The tribunal considered the matter on 7th January 2002 and, after examining the claimant, confirmed the decision of the Secretary of State. On 14th March 2002 the chairman of the tribunal refused the claimant leave to appeal to the Social Security Commissioner against the decision of the tribunal. The claimant now appeals by my leave granted on 11th June 2002. The Secretary of State opposes the appeal and supports the decision of the tribunal. 

6. One of the claimant’s grounds for appeal against the decision of the tribunal is that the medical member who sat on 7th January 2002 had also sat on the MAT and “he would not reverse his own decision”. The Secretary of State argues that it was not obvious to the later tribunal from the papers before it that the medical member was the same, that there is no evidence that the medical member had any recollection of the MAT and that the claimant did not raise any objection at the time of the later tribunal hearing, which he attended.

7. It is now established that the test for apparent bias is whether the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased. It is important to note that actual bias does not have to be demonstrated.

8. If this were a case where the new tribunal did not have to make a decision as to the correctness of the prediction made by the previous tribunal, then in my opinion the answer would be that no such conclusion could be drawn. However, in the present case, part of the application for supersession was based on the argument that the MAT had been mistaken in its prediction. The medical member was being asked to agree that his previous prediction had been mistaken. In my view the claimant was entitled to a totally independent tribunal. His failure to object at the time would only be relevant if he had appreciated the true position at the time, and there is no evidence that he did. In my view a fair minded and informed observer would conclude that there was a real possibility that the tribunal was biased. As Lord Hewart stated in R-v- Sussex Justices ex p McCarthy [1924] 1KB 256:

“ … a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done”.

9. In the present case there was a breach of the rules of natural justice and fair procedure and (at this stage) the appeal by the claimant succeeds.

H. Levenson
Commissioner

5th August 2002