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Neutral Citation Number:
Reported Number:	R(DLA)3/07
File Number:	CDLA 2379 2005
Appellant:
Respondent:
Judge/Commissioner:	Judge A. Lloyd-Davies
Date Of Decision:	01/03/2007
Date Added:	11/04/2007
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:	Tribunals – practice – natural justice – perception of bias – chairman had sat on three occasions with the examining doctor whose report was under consideration The claimant was refused both components of DLA on the basis of her claim pack and a report from her GP. She appealed and was examined by an examining medical practitioner (EMP). The decision-maker reconsidered the decision in the light of the EMP’s report and again disallowed the claim. The claimant appealed and the tribunal disallowed the appeal, preferring the evidence of the EMP to that put forward on behalf of the claimant. Before the Commissioner the claimant’s representative argued that the tribunal’s decision should be set aside on the ground of apparent bias, the EMP having previously sat as a tribunal member. He had sat with the chairman of the tribunal on three previous occasions in the two years preceding the tribunal hearing, the last occasion being three and a half months before. The question for the Commissioner was whether the systemic approach set out in Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, was applicable or whether the issue of bias should be decided on the facts and circumstances of the individual case. The Secretary of State argued that, following the latter approach, the decision of the Inner House in Secretary of State v Cunningham (R(DLA) 7/04) was distinguishable, as the combination of frequency, timing and length of the relationship in the present case was not sufficient to give rise to the perception on the part of a fair-minded and informed observer that there was a real possibility of sub-conscious bias. (The test for apparent bias set out at [103] in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357). Held, allowing the appeal, that: 1. the situation in Lawal of a lawyer addressing a tribunal, one or two members of which he had previously chaired, was distinguishable from the case of a tribunal having to consider evidence from someone with whom one of the tribunal members had previously sat, which required an analysis of all the surrounding circumstances; and CSDLA/364/2005* was incorrect in holding to the contrary (Locabail (UK) Ltd v Bayfield Properties Limited [1999] EWCA Civ 3004 and Porter v Magill followed) (paragraph 12); 2. applying that approach to the present case, the lapse of time between the three occasions was not sufficient to destroy the objection of apparent bias altogether and any doubts should be resolved by setting the decision of the tribunal aside (paragraphs 15 and 16). The Commissioner remitted the case for rehearing by a differently constituted tribunal. *Subsequently reversed (on this point) by consent in the Court of Session.
Decision(s) to Download:	R(DLA)_ 3-07_bvam.doc