[2007] UKSSCSC CDLA_1312_2006 (22 February 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Darlington appeal tribunal dated 21 February 2006 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 24 below (Social Security Act 1998, section 14(8)(b))

The factual background
2. The appeal tribunal was concerned with the claim for disability living allowance (DLA) made on 9 February 2005. The claimant had injured her right shoulder in a fall on 23 December 2004, in which her right humerus was fractured, and her disabilities stemmed from that. The claim was disallowed on 23 March 2005. It was decided that she was not entitled to the mobility component from and including 9 February 2005. That part of the decision has not really been disputed. In relation to the care component, the disallowance for the period from 9 February 2005 to 23 March 2005 was on the ground that the claimant had not satisfied the conditions of entitlement for three months and from and including 24 March 2005 was on the ground that she would satisfy the conditions for less than six months and awards could only be made for periods of six months or more. In the appeal the claimant was represented by Durham Welfare Rights (DWR), who put in supportive letters from the claimant's GP, Dr Pindolia, dated 20 April 2005, and Mr McVie, the consultant orthopaedic surgeon who had had the claimant under his care, dated 22 March 2005.

3. Thus far the case appears very much a routine DLA appeal, but it is the procedure followed later in the appeal which has raised difficult and interesting questions of the application of the principles of natural justice and of the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).

The decision of the appeal tribunal of 17 August 2005
4. The claimant attended a hearing on 17 August 2005 with Mr Hanns of DWR. The appeal tribunal disallowed the appeal, deciding that she did not satisfy the conditions of entitlement to either component from 9 February 2005. It accepted that she had some impairment of function and movement in the right shoulder, so that she needed some attention to get out of bed in the morning and to wash her hair, but otherwise could see to all her bodily functions taking her time. It concluded that the claimant was able to plan and prepare a cooked main meal for herself with the assistance of suitable aids, as she had full use of her left arm and hand. The appeal tribunal stated that it had taken into account the evidence of Dr Pindolia and Mr McVie, but found it of little assistance because it was vague and did not address the issues in the appeal in sufficient detail.

The setting aside of the decision under section 13(2) of the Social Security Act 1998
5. An application for leave to appeal to the Commissioner was made on the claimant's behalf. A district chairman on 9 November 2005 set aside the decision of the appeal tribunal of 17 August 2005 on the ground that it was erroneous in point of law and referred the case to the same tribunal for determination (Social Security Act 1998, section 13(2)). The district chairman said this about errors of law:

 "The tribunal found a significant right shoulder injury resulting in restricted movement and function. The papers show that the claimant is right hand dominant. The tribunal
  (a) made no finding in regard to the appellant's claim of osteo arthritis in both wrists;
  (b) did not state what [were] the `suitable aids' that would enable her to prepare the ingredients for a cooked main meal.
 In all other respects the decision is carefully reasoned."

The direction was given that the case was to be redetermined by the same tribunal.

6. Section 13(2) of the Social Security Act 1998 provides:

 "(2) If the person [to whom an application for leave to appeal is directed] considers that the decision [of an appeal tribunal] was erroneous in point of law, he may set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal."

Under section 13(3), if each of the principal parties to a case expressed the view that the decision of an appeal tribunal was erroneous in point of law, the person shall set aside the decision and refer it for determination by a differently constituted tribunal. In practice, the procedure under section 13(3) is not operated, I understand because the Secretary of State has waived the opportunity to be informed of applications by claimants for leave to appeal against appeal tribunal decisions.

7. The letter dated 11 November 2005 sent by the clerk to the appeal tribunal to DWR was as follows:

 "On 07/11/2005 I received an application for permission to appeal to the Commissioner against the tribunal's decision made on 17/08/2005.

 The Chairman has decided that a new tribunal should hear the appeal.

 The application does not need to be considered by the Commissioner. The tribunal's original decision will be cancelled.

 I will arrange a date for the new appeal hearing as soon as possible."

The decision of the appeal tribunal of 21 February 2006
8. The claimant attended the hearing on 21 February 2006 with Mr M Guy of DWR. Although in the papers before me the district chairman's full ruling is numbered and placed before the record of proceedings for 21 February 2006, Mr Guy's evidence was that it was only when they got to the hearing did he and the claimant discover that the members of the appeal tribunal were exactly the same of those of the appeal tribunal of 17 August 2005. I accept that evidence, as it emerged in the hearing on 21 February 2006 that Mr Guy did not have any papers from after the hearing on 17 August 2005. Mr Guy argued that it was wrong to have the case decided by the same people, that there could not be a fair hearing in accordance with Article 6 of the ECHR and that there should be an adjournment for a hearing by a differently constituted appeal tribunal. The record of proceedings notes that the application for an adjournment was refused.

9. The claimant told the appeal tribunal that her problems had only really improved in the previous month or two. Asked specifically about cooking, she said that she could not have managed a slotted spoon in her right hand or peeled or scrubbed vegetables in March 2005, because of pain in her shoulder. She could have planned a meal, as she had no problems organising. She had a small kitchen with no aids. She could have boiled a kettle. Mr Guy submitted that the GP's evidence should be accepted, as she was best placed to assess the claimant and her professional opinion should not be given less weight because the claimant would have told her about her problems.

10. The appeal tribunal disallowed the appeal. It said in its statement of reasons that the appeal was familiar to it and it had its previous record of proceedings and reasons. It had therefore limited its questioning to the issues identified in the set aside decision although it invited Mr Guy to raise any issues he thought relevant. It found that the claimant had osteo-arthritis in both wrists and had had a significant shoulder injury resulting in restricted movement and function, but without restricting dexterity or movement in the right forearm and hand. It found that if provided with a slotted spoon and a vegetable spike she could prepare a cooked main meal for one, as she had full use of her left arm and hand. On the weight to be given to the evidence of Dr Pindolia and Mr McVie the appeal tribunal repeated exactly what it had said in the previous statement of reasons, down to the misspelling of both names.

The appeal to the Commissioner
11. The claimant now appeals against the appeal tribunal's decision with the leave of a district chairman (not the district chairman who made the setting aside ruling), who said that a Commissioner's ruling on the principle of an identical tribunal hearing an appeal following a section 13(2) rehearing direction was required. Mr Commissioner Williams gave case management directions, posing three questions and directing a full submission dealing with those questions from Mr Guy in the first instance. He also drew attention to the decision of the Court of Appeal in Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578, [2005] ICR 1373 and the cases mentioned in its judgment. Unfortunately, due to various organisational problems, Mr Guy's submission was not made until 4 September 2006. The representative of the Secretary of State in the submission dated 29 September 2006 did not support the appeal. In his reply Mr Guy requested an oral hearing, which was granted by Mr Commissioner Williams.

Submissions at the oral hearing
12. The oral hearing took place before me at Doncaster County Court on 6 February 2007. The claimant did not attend. She was represented by Mr Guy. The Secretary of State was represented by Mr Huw James, solicitor, instructed by the Solicitor to the Department for Work and Pensions. I thank both representative for their submissions.

13. Mr Guy submitted first that the claimant had not received a fair hearing from the appeal tribunal on 21 February 2006, contrary to Article 6 of the ECHR. He said that there could never be fair hearing if the reference under section 13(2) was to an identically constituted appeal tribunal, in that the claimant walking into the tribunal room seeing exactly the same people at the table, and any fair-minded and informed observer, would think that there was a real possibility of bias by the members being subconsciously reluctant to change their previous conclusions. Mr Guy stressed that, in accordance with section 13(2), the decision of the appeal tribunal of 17 August 2005 had been set aside in its entirety, so that all issues had to be determined again. He recognised that the members of the appeal tribunal of 21 February 2006 had been put into a very difficult situation, with no explicit directions about how to proceed, but submitted that they had shown, by the references in the statement of reasons to familiarity with the appeal, to limiting its questions to the issues identified in the set aside ruling and to the repetition of the reasons for rejecting the evidence of Dr Pindolia and Mr McVie as of little assistance, that they had not carried out a complete new determination of the claimant's appeal. That failure was not cured by the invitation to Mr Guy to raise any issues he thought relevant, as the statement of reasons made no reference to his submission on 21 February 2006 about the weight to be given to Dr Pindolia's evidence.

14. Mr Guy distinguished Barke from the circumstances of the present case, and social security appeals generally. In that case, the Court of Appeal approved a practice under which the Employment Appeal Tribunal (EAT), in cases where an employment tribunal (ET) had failed in its judgment to deal at all with some relevant issue or had given no adequate reasons for a decision, invited the ET to clarify or supplement its reasons before there was a final determination of the appeal to the EAT. Power to remit the case to the same ET at that stage was found in the relevant legislation and doing so was accepted as appropriate in the right cases, in view of the high degree of professionalism to be expected from chairmen and members of ETs and the saving of time and expense in avoiding full hearings by the EAT and rehearings by ETs. The Court of Appeal did recognise the dangers in asking the original tribunal for further reasons. But it referred in paragraph 47 to what it described as the routine remission of cases or issues by the EAT to the original tribunal notwithstanding the danger that the tribunal will subconsciously wish to reach the same conclusion as on the first occasion and continued:

 "The underlying justification for this is that judges and members of employment tribunals are trusted for their professionalism and integrity and, in many cases, it is better to remit to the original court or tribunal."

15. In Sinclair Roche & Temperley v Heard [2004] IRLR 763, a case referred to in Barke, but not discussed at the oral hearing before me, Burton J, the President of the EAT, set out relevant factors to be taken into account in deciding whether to remit to the original tribunal. They were proportionality, passage of time, bias or partiality, a totally flawed decision by the first tribunal, the "second bite of the cherry" principle and tribunal professionalism. On the second bite factor, Burton J referred to the very real risk of an appearance of pre-judgment or bias if a tribunal had already made up its mind, on the face of it, about all the matters before it and said that an appellate tribunal would only send a matter back to the original tribunal if:

 "it had confidence that, with guidance, the tribunal, because there were matters which it had not, or had not yet, considered at the time it apparently reached a conclusion, would be prepared to look fully at such further matters, and thus be willing or enabled to come to a different conclusion, if so advised."

He also suggested that ETs were used to changing answers being given to difficult issues of employment law and being well able, paying careful attention to guidance by an appellate tribunal, to carry out its tasks on remission in a professional way, unless it appeared that the tribunal had so thoroughly committed itself that a rethink appeared impracticable.

16. Mr Guy submitted that the balance of factors was very different in the context of section 13(2). A new hearing could be much more easily and quickly arranged before a differently constituted appeal tribunal rather than with the same members. Nor were there problems of expense and considerable delay in hearings before an appellate tribunal or before a differently constituted appeal tribunal as compared with the same members.  And there was no provision in section 13(2) for anything other than a complete setting aside and a redetermination. The rule applied under section 13(3) and the default rule under section 14(7) and (8)(a) (see section 14(9)) when Commissioners referred a case to an appeal tribunal for determination should be used. Finally, he submitted that, unlike the ET and EAT context, there was no mechanism for challenging a reference to the same appeal tribunal on an interlocutory basis. There was no provision in the legislation for challenge, on the assumption that the claimant or representative knew of the terms of the reference, and an informal challenge was unlikely to get anywhere. Therefore, the only effective point at which to challenge the reference on legal grounds was when the case reached the appeal tribunal for hearing. Judicial review was a disproportionately complicated remedy and might well not be allowed on the basis that there was an alternative remedy of appeal against the appeal tribunal's second decision.

17. Mr Guy's second submission was that the appeal tribunal of 21 February 2006 erred in law by failing to give any explanation in the statement of reasons of why it rejected his submission that there should be an adjournment for hearing before a differently constituted appeal tribunal as the only way of providing the claimant a fair hearing. Although the record of proceedings summarised Mr Guy's submission and its rejection, no reasons were recorded and there was no mention of those matters in the statement of reasons. In R(IS) 12/04, Mr Commissioner Bano held that the claimant there was entitled to full reasons for the rejection of his clear and comprehensive Human Rights Act arguments, despite a Commissioner having no power to make a declaration that primary legislation is incompatible with ECHR rights.

18. Mr James for the Secretary of State submitted in reply to Mr Guy's first submission that, while there might be practical reasons why a referral under section 13(2) to an identically constituted appeal tribunal would not always or often save any time or expense, those did not show that such a referral was fundamentally unfair. There were many areas of public law where a referral back to the same body that made a decision was not unusual, as Barke showed, and it should not be assumed that members of appeal tribunals were incapable of looking at cases again with an open mind and avoiding the errors of law identified in the setting aside ruling. He submitted that there was no error of approach in the appeal tribunal saying that it limited its questioning to the issues identified in the ruling as not covered in the first decision, as it invited Mr Guy to raise any issues that he wished. Mr Guy had not been put at an unfair disadvantage in considering whether to seek additional medical evidence by not knowing that the same members, who had already taken a view about the usefulness of Dr Pindolia's and Mr McVie's evidence, would be sitting. He was aware of that view and was therefore alerted to a possible weakness in the existing evidence, whoever was to be sitting on the next appeal tribunal.

19. In reply to Mr Guy's second submission, Mr James submitted that the record of proceedings showed that the appeal tribunal had considered Mr Guy's application for an adjournment on its merits. It did not dismiss the application out of hand. The Secretary of State's submission was that in the circumstances, even taking into account what was decided in R(IS) 12/04, there was no more that the appeal tribunal needed to say by way of explanation of its exercise of the discretion not to adjourn.

The Commissioner's conclusions
20. I reject Mr Guy's submission that there can never be a fair hearing when a case is referred to an identically constituted appeal tribunal under section 13(2). There can, for instance, be cases where there is no dispute over the facts, but the sole issue is the application of the law to those agreed facts. A chairman considering the use of section 13(2) has no power to substitute the decision that the appeal tribunal should have made. If satisfied that the appeal tribunal has made an error of law and even if satisfied that there is only one result that could be reached in accordance with the law, a chairman sensibly wishing to avoid the delay inherent in allowing the case to proceed to a Commissioner has no alternative but to refer the case to an appeal tribunal for determination or redetermination. In such circumstances, a fair-minded and informed observer would not consider that there was a real possibility of bias if the reference was to an identically constituted appeal tribunal. Those members would be just as capable as the members of a differently constituted appeal tribunal of avoiding the error or errors of law identified in the setting aside ruling. I am not in this paragraph seeking to draw a firm line around the sorts of cases in which there would be no perception of potential bias, but the example is enough to reject this part of Mr Guy's argument. I come back in paragraphs 25 to 27 below to some suggestions about practice under section 13(2).

21. I do accept that in the particular circumstances of the present case the claimant did not receive a fair hearing before the appeal tribunal of 21 February 2006 and that there was a breach of the principles of natural justice in that a fair-minded and informed observer would have considered that there was a real risk of the members of that appeal tribunal being biased against her. That is primarily because of the view that the appeal tribunal had expressed on 17 August 2005 about the usefulness of the medical evidence from the two doctors and the rejection that was necessarily implied in its decision of the claimant's evidence about the extent of the restrictions on her activities at the relevant dates. The consequent risk of subconscious bias was compounded by the way that the district chairman expressed herself in the setting aside ruling, in particular the statement that the decision of 17 August 2005 was carefully reasoned apart from the two points on which findings were not made. It is an important feature of the procedure under section 13(2) that the chairman making the ruling is given no power to give directions to the appeal tribunal. That is no doubt because there are objections of principle to a judicial officer making rulings of law to bind an appeal tribunal operating at the same level. However, it marks a significant distinction from the situation where the EAT after allowing an appeal refers a case back to the original ET. There, in accordance with Burton J's guidance in Sinclair Roche & Temperley (paragraph 15 above), considerable weight is put on the guidance as to the law that can be given by an appellate tribunal. That sort of guidance is not possible under section 13(2). Thus, in the present case, although saying that the decision of 17 August 2005 was carefully reasoned in most respects did not in so many words say that the reasoning was right or that on the rehearing not all of the issues in the appeal needed to be redetermined, there was a risk that those words would be interpreted as encouraging the members of the appeal tribunal not to depart from the views they had expressed on the evidence before them on 17 August 2005.

22. I therefore do not need to decide whether or not there was an additional element of unfairness, in terms of an interference with a fair opportunity to meet the case against the claimant, in the claimant and Mr Guy's not knowing until 21 February 2006 that the appeal was to be heard by an identically constituted appeal tribunal. But I am satisfied that there were further errors of law. The appeal tribunal's repetition word for word of its reasons for finding the two doctors' evidence of little use indicated that it had not redetermined the appeal in its entirety, which in my judgment it was bound to do following the setting aside of the decision of 17 August 2005 in its entirety when Mr Guy had made it clear that he was still arguing for the middle rate of the care component and was not conceding the correctness of the conclusions of fact against the claimant on 17 August 2005. At the least, the appeal tribunal failed to give reasons for rejecting Mr Guy's specific contention on 21 February 2006 that Dr Pindolia's evidence should be accepted as she was best placed to evaluate the effects of the claimant's injury on her life. Finally, although the basic main meal test should not be allowed to be submerged in the minutiae of evidence about particular cooking aids, it was not entirely satisfactory for the appeal tribunal to have relied on the assistance that the claimant could get from a vegetable spike without having asked her about that.

23. I accept Mr Guy's second submission in substance. I am not sure whether there is any special rule about reasons for the rejection of Human Rights Act arguments beyond the long-established principle in paragraph 13 of R(I) 18/61 that, where some specific contention addressed to an appeal tribunal has been rejected, it is necessary to give reasons for the rejection. What was added in paragraph 14 of R(IS) 12/04 was that the lack of the power to make a declaration of incompatibility under section 4 of the Human Rights Act did not prevent the application. In any case, I think that Mr Guy's submission to the appeal tribunal that it should adjourn would have had just as much force if it had been based on the principles of natural justice, rather than Article 6 of the ECHR. In that context, the decision of the Court of Appeal in Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33, R(IB) 6/03, is helpful. There Laws LJ, in paragraphs 23 to 26 approved the approach of Mr Commissioner Jacobs in the decision under appeal, that if there has been a refusal of an application to adjourn, the appeal tribunal's reasons for its decision on the appeal are inadequate if no reasons are given for the refusal, except where the reason is obvious. In the present case, the appeal tribunal gave no reason for refusing Mr Guy's application. It was in a very difficult position in dealing with an argument about perceived bias. I am prepared to accept that the appeal tribunal rightly considered whether it was able to provide the claimant with a fair hearing by an unbiased tribunal and did not simply take the view that it was bound to proceed in accordance with the direction in the setting aside ruling. But the very difficulty and unusualness of its position shows that the reason for refusing to adjourn was not obvious. Some explanation needed to be given.

The Commissioner's decision and directions to the new appeal tribunal
24. For those reasons, I set aside the decision of the appeal tribunal of 21 February 2006 as erroneous in point of law. The claimant's appeal against the Secretary of State's decision of 23 March 2005 is referred to a differently constituted appeal tribunal for determination in accordance with the following directions. There must be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound in any way by any findings made or conclusions expressed by the appeal tribunal in its decisions of 17 August 2005 or 21 February 2006. I do not need to give any directions of law about the conditions of entitlement to DLA. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case is still open.

Practice under section 13(2) of the Social Security Act 1998
25. It will be apparent from what I have said above that I have no power directly to review the propriety or reasonableness of the direction given by the district chairman under section 13(2) on 9 November 2005 that the claimant's appeal was to be heard by the same appeal tribunal as disallowed her appeal on 17 August 2005. Once it had been decided that the power under section 13(2) to refer a case to the same appeal tribunal could not be attacked as leading in all cases to a contravention of Article 6 of the ECHR, the issue to which the direction had relevance was whether there had been a breach of the principles of natural justice or the right to a fair hearing in the giving by the appeal tribunal of its decision of 21 February 2006. For those reasons I hesitate to give any guidance that might be taken as prescribing the practice to be followed. But in view of the different district chairman's request for a ruling on the principle of the same tribunal hearing an appeal following a section 13(2) set aside, I make the following comments.

26. I draw attention to the factors set out by Burton J in Sinclair Roche & Temperley, summarised in paragraph 15 above. I have already noted in paragraph 21 above the significant difference between an appellate tribunal referring a case back to the same lower tribunal with careful directions of law and a district chairman setting aside under section 13(2) with no power to give directions of law that would bind the new appeal tribunal. That, it seems to me, can lead to considerable difficulties for an appeal tribunal in the position of that of 21 February 2006 in the present case, with a lack of clarity over how far it is entitled to adopt findings and conclusions already made and how far it is required to address all issues in contention, not just issues newly identified in the setting aside. The balance of practical advantage, about which district chairmen know much more than me, may be very different from that in the employment tribunal context, where evidence may be given over days and weeks. In the appeal tribunal context, a hearing by a differently constituted appeal tribunal can be set up much more quickly and effectively. Members hear so many routine cases in a sitting that a memory of the background and the evidence may be much fainter than in the employment tribunal context. It may take a member of the original appeal tribunal almost as long to refresh the memory as for a new member to read the papers and hear the case. And, as the challenge to the process must be, as in this case, by way of appeal against the appeal tribunal's decision on the rehearing, doubtful cases may end up going to a Commissioner when they would not have done if the reference had been to a differently constituted appeal tribunal.

27. All that would tend to suggest that the safest option under section 13(2) will always be to refer the case to a differently constituted appeal tribunal. As the practical advantages of referring it to the same appeal tribunal appear limited, that would point to exercising that power only in the plainest cases, where there is some positive reason for doing so, and erring on the side of safety where there is any doubt.

 (Signed)           J Mesher
 Commissioner

 Date:  22 February 2007