[2007] UKSSCSC CSIB_85_2007 (08 June 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1.	The claimant’s appeal to the Commissioner is allowed.  The decision of the Inverness appeal tribunal (the tribunal) dated 3 November 2006 is erroneous in point of law for the reasons given below.  I therefore set the tribunal’s decision aside and return the appeal for a new hearing to a fresh tribunal.

The issue

The right to an impartial tribunal

2.	At a hearing in Inverness on 18 August 2006, at which neither the presenting officer (PO) on behalf of the Secretary of State nor the claimant were present, in each case without apparent explanation, a tribunal (the first tribunal) issued a decision (the first decision) adverse to the appellant.  

3.	On 21 September 2006, the first decision was set aside by a legally qualified panel member (LQPM) because information from the claimant, that she had been unable to attend its hearing because in the middle of a family crisis, had not been put to the first tribunal.  Although the LQPM did not so state, he was clearly acting under regulation 57 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (regulation 57), which allows for such set aside where a party to the proceedings was not present at a hearing and it is just so to set aside; regulation 57 does not specify that the case must then be referred for determination by a differently constituted tribunal, but the LQPM so directed.

4.	In the event, that did not happen.  The tribunal contained the same chairman as had sat at the first tribunal hearing although the medical member was different at the second hearing. 

5.	It is noted in the record of proceedings of the tribunal hearing on 3 November 2006:

“Chairman explained that she had sat on previous tribunal, [the claimant] (non-attendance therefore decision set aside) – had no problem with her hearing oral evidence today.”

6.	No statement of reasons was issued with respect to the first decision but on its decision notice, when confirming the adverse decision of the Secretary of State that only one point under 17(f) was appropriate, the first tribunal noted:

“She did not attend the tribunal hearing and a decision was made on the evidence in the papers before the tribunal.  The tribunal concluded that the assessment by the Medical Adviser was an accurate reflection of her capabilities as being based on her statement to him and the clinical findings, together with his knowledge of her underlying condition.”

7.	The tribunal on 3 November 2006 completed three pages of evidence taken from the appellant (again, no PO attended the proceedings).  In its decision (the second decision), the tribunal awarded 5 points, none of which had been thought appropriate by the medical adviser (MA) and did not agree with the sole point that the MA did consider applied.  In its statement of reasons with respect to the second decision, the tribunal said that it “… found [the claimant] to be an honest and credible witness who gave an articulate account of her capabilities”, set out why it judged she attained 5 points, which was contrary to the MA’s opinion, why it disagreed with the MA with respect to the point he had thought was satisfied and then concluded:

“Although she suffers from a degree of anxiety and depression, [the appellant] is otherwise able to cope with all aspects of completion of tasks, daily living, coping with pressure and interaction with other people.  The tribunal concluded that the effects of her mental disablement were not such that she satisfied sufficient of the mental health descriptors to attain the required number of points.  She attained a total of 5 points, which is not enough to satisfy the personal capability assessment.”

8.	The claimant appealed to the Commissioner on grounds which have now, in effect, been withdrawn; however, the LQPM (the same LQPM who set aside the first decision under regulation 57) granted leave to appeal with respect to the effective issue:

“I consider there may be a stateable [sic] argument … to the effect that there has been a failure to ensure a fair hearing since the same chairman had previously refused her appeal (notwithstanding the observations made by the chairman in the statement of reasons).”

Oral hearing

9.	The case came before me for an oral hearing, and at my direction, on 6 June 2007.  The claimant was represented by Mr McIver, a Devil Advocate, and the Secretary of State was represented by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General.

10.	I am very grateful to them both for their meticulously prepared and helpful submissions.  As in the end my resolution of the appeal has turned on a relatively narrow point, it is unnecessary for me to set out the arguments put in full; but this in no way detracts from my appreciation of their value which, in any event, helped thus to limit the matter.

My conclusion and reasons

Waiver

11.	Even if there is a breach of the principles of natural justice or of the right to a fair trial in accordance with Article 6(1) of the European Convention on Human Rights, waiver defeats the right of a party affected to found on it.  Both Mr McIver and Mr Brown are agreed that there was no effective waiver in the present case and I regard that position as correct.  

12.	In Jones v DAS Legal Expenses Insurance Co [2003] EWCA Civ 1071, the Court of Appeal provided the following guidance for a Judge who becomes aware of circumstances which might give rise to an appearance of bias:

“i) If there is any real as opposed to fanciful chance of objection being taken by that fair-minded spectator, the first step is to ascertain whether or not another judge is available to hear the matter. It is obviously better to transfer the matter than risk a complaint of bias. The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.
ii) Some time should be taken to prepare whatever explanation is to be given to the parties and if one is really troubled perhaps even to make a note of what one will say.

iii) Because thoughts that the court may have been biased can become festering sores for the disappointed litigants, it is vital that the judge's explanation be mechanically recorded or carefully noted where that facility is not available. That will avoid that kind of controversy about what was or was not said which has bedevilled this case.

iv) A full explanation must be given to the parties. That explanation should detail exactly what matters are within the judge's knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him. Secondly, an explanation should be given as to why the problem had only arisen so late in the day. The parties deserve also to be told whether it would be possible to move the case to another judge that day.

v) The options open to the parties should be explained in detail. Those options are, of course, to consent to the judge hearing the matter, the consequence being that the parties will thereafter be likely to be held to have lost their right to object. The other option is to apply to the judge to recuse himself. The parties should be told it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions. They should be told what will happen next. If the court decides the case can proceed, it will proceed. If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.

vi) The parties should always be told that time will be afforded to reflect before electing. That should be made clear even where both parties are represented. If there is a litigant in person the better practice may be to rise for five minutes. The litigant in person can be directed to the Citizen's Advice Bureau if that service is available and if he wishes to avail of it. If the litigant feels he needs more help, he can be directed to the chief clerk and/or the listing officer. Since this is a problem created by the court, the court has to do its best to assist in resolving it. "

13.	At paragraph 29 of another Court of Appeal decision, Peter Smith v Kvaerner Cementation Foundations Ltd (the Bar Council intervening) [2006] EWCA Civ 242 (Kvaerner), Lord Phillips CJ commented:

“This is useful guidance but, as the court made plain, it should not be treated as a set of rules which must be complied with if a waiver is to be valid. The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an un-pressured decision.”

14.	The Court of Appeal then held that there had not been the appropriate waiver in the Kvaerner case for the reasons it set out at paragraph 31:

“Mr Smith was not, however, given any information as to how quickly his case could be tried if he insisted that it should be transferred to another judge. No attempt appears to have been made to find this out. We think that the Recorder should at the outset himself have explained to Mr Smith what the options were and made quite sure that he was content that the Recorder should try the case.”

15.	Mr Brown acknowledges that in the present case, the terse record of proceedings does not provide a sufficient guarantee that the appellant’s decision to agree to the same chairman continuing to hear her case was made freely and with sufficient appreciation of the import of her choices.  In particular, the appellant was not told how long would be the delay if she sought an adjournment, nor does she appear to have been given a short period of time for reflection about what was the best way forward.  In consequence, there was no waiver of any right to complain of bias.  

The lack of an impartial tribunal

16.	It is not, of course, suggested that there was any subjective bias on the part of the chairman in the present case; the question is rather one of whether there was a real possibility of sub-conscious bias.  

17.	The basic test is in Porter v Magill [2002] 2 AC 357, set out by Lord Hope of Craighead at paragraph 103 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.”

18.	However, the test was further amplified by Scott Baker LJ at paragraph 27 of Flaherty v National Greyhound Racing Club Ltd. [2005] EWCA Civ 1117:

“The test for apparent bias involves a two stage process. First the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased. Secondly it must ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased …. An allegation of apparent bias must be decided on the facts and circumstances of the individual case …. The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing ….”

19.	In National Assembly for Wales v Elizabeth Condron and Miller Argent (South Wales) Ltd. [2006] EWCA Civ 1573, the Court of Appeal emphasised that what counts are the circumstances as they appear to the Court after investigation; moreover, such circumstances are not restricted to those available to the hypothetical observer at the original hearing but take into account how in fact the decision was taken about which complaint is later made, including an analysis of the actual decision.  Thus, for example, it was one relevant factor for the Court of Appeal in the case before them, when it overturned the original determination of apparent bias, that the deliberations lasted not merely a matter of minutes but for a long time, which demonstrated an open minded debate and militated against the possibility of bias; also considered relevant by the court was that the participants had undergone relevant training and had agreed to be bound by a code of conduct which demanded an “… unbiased, properly directed and independent mind”.  

20.	In the present case, even if, as Mr McIver submitted, a fair-minded and informed observer sitting in the appellant’s position might have feared that a chairman who had so recently given an adverse decision against her, would automatically do so again on rehearing the same appeal, nevertheless, perusal of the tribunal’s decision suggests quite the contrary; in the first decision, the first tribunal, which had only the paper evidence, went along completely with the opinion of the MA, whereas, once it heard the appellant’s oral evidence, the tribunal both found her to be wholly credible and also materially departed from following the same MA’s opinion.  This does not suggest apparent bias.

21.	As Mr Brown argued, the case is thus exceedingly borderline.  However, it is the Secretary of State’s view that it is safer to set the decision aside and remit the appeal for a rehearing by a differently constituted tribunal.  This was urged for two reasons.  His first point, in reiteration of one submitted strongly by Mr McIver, was that the Court of Appeal stated in Locabail (UK) Ltd v Bayfield Properties Ltd. [1999] EWCA Civ 304 that any doubts must be resolved in favour of recusal, (which means in a situation such as this, as pointed out by Mr Commissioner Lloyd-Davies in CDLA/2379/2005, a similar borderline case, to setting the decision of a tribunal aside).  Secondly, Mr Brown comments that, although when there is effective waiver the issue of apparent bias becomes academic, nevertheless where, as in the Kvaerner case, a claimant is offered the right to object but an investigating court is left with “a nagging doubt that [she] had been ‘hustled into’ [her] decision” (see paragraph 28 of Kvaerner), this may in itself be a factor which tips the balance in holding that the claimant was not afforded an impartial tribunal, i.e. it is relevant both to waiver and apparent bias, though not determinative.  

22.	I take the view that this second point is sound.  The very fact that an adjudicator offers a claimant an opportunity to object means that the adjudicator appreciates that justice must not only be done but be seen to be done (the old adage which Mr McIver forcefully pushed), and judges that present appearances could seem to suggest the contrary even if this was not the actual position; if the adjudicator then gives inadequate scope to the claimant’s freedom to object, if the latter so wishes, this is one factor which could support objective bias.  

23.	It is on this narrow point, and with some reluctance,  that I accept the joint submissions of the parties that the case should be remitted on account of error in law.  In CDLA/1312/2006, Mr Commissioner Mesher was concerned with a referral under s.13(2) of the Social Security Act 1998, which sub-section expressly allows referral “… either for redetermination by the tribunal or for determination by a differently constituted tribunal”, whereas there is no legislative reference to the composition of the new tribunal on referral under regulation 57.  Nevertheless, as a matter of good practice, and to obviate the difficulties which arose in the present case, as also in CDLA/1312/2006, (not to mention the delay and expense), I endorse what was said at paragraph 27 of that case by Mr Commissioner Mesher in relation to referral under s.13(2) as applying also to referrals under regulation 57:

“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.”

Summary

24.	The appeal is therefore remitted to a new tribunal, with a wholly different composition to that of either the first tribunal or of the tribunal, to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them.  Although the claimant has been successful in her appeal limited to issues of law, the decision on the facts in her case remains open.

					(signed)
					L T PARKER
					Commissioner
					Date:  8 June 2007