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Neutral Citation Number:
Reported Number:	R(DLA)7/04
File Number:	CSDLA 444 2002
Appellant:	Secretary of State for Work and Pensions v. Cunningham
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	19/02/2003
Date Added:	21/03/2003
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	fair hearing
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	tribunal membership and procedure
Notes:	Tribunal practice - natural justice - fair and impartial tribunal - actual or apparent bias - tests to be applied The claimant had appealed to the appeal tribunal against the refusal of the Secretary of State to make an award of disability living allowance. Amongst the evidence considered by the appeal tribunal, were three reports by examining medical practitioners ("EMPs"). The tribunal stated that it preferred the evidence of one of the EMPs to that of the other two. It transpired that the EMP whose evidence was preferred had also sat regularly as a medical member of appeal tribunals in the same locality and that he had sat on a number of occasions over the previous two years with the members of the present tribunal. The claimant appealed to the Commissioner that the tribunal had given inadequate reasons for preferring the evidence of that EMP and that a breach of natural justice had occurred. The Deputy Commissioner, Sir Crispin Agnew of Lochnaw Bt QC, considered that a case of apparent bias had been made out and upheld the appeal. The Secretary of State appealed to the Inner House of the Court of Session. Held, dismissing the appeal, that: 1. the test to be applied was that of the "fair-minded and informed observer" set out by the House of Lords in Lawal v. Northern Spirit Limited [2003] UKHL 35 (paragraph 1); 2. the Deputy Commissioner had come to the view, following Lawal and In re Medicaments and Related Classes Goods (No. 2) [2001] 1 WLR 700, that an expert witness was in a different position from an advocate, where both were part-time members of a tribunal before whom they also appeared in their respective capacities. He considered that a well-informed layman might conclude from the number of occasions on which the EMP had sat as a medical member with two of the three members of the tribunal, that there was a real possibility of bias. He drew support from what was said by a Tribunal of Commissioners in paragraph 77 of CSDLA/1019/1999. The Court held that the Deputy Commissioner's reasoning was unimpeachable. The Court considered that the influence which the EMP, when sitting as a medical member, may reasonably be expected to have exerted during previous dealings with two of the three members would be "worrying in the eyes of the fair-minded observer" (paragraph 3); 3. it was the extent of the relationship which might reasonably be expected to have developed between the EMP, when sitting as a medical member, and the two of the members of the tribunal which gave rise to the perceived risk of sub-conscious bias in this case. However, the Court was reluctant to pronounce on the extent to which the frequency with which the EMP had sat with those members had been determinant.
Decision(s) to Download:	R(DLA) 7_04 bv.doc