Gillies v Secretary of State for Work and Pensions

The court applied the familiar test for apparent bias as stated in Porter v Magill: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The appellant alleged that a medical member of a Disability Appeal Tribunal (Dr Armstrong) was biased because she also acted as an examining medical practitioner (EMP) providing reports to the Benefits Agency (via contractors).

The House of Lords held that the EMP role did not, without more, create a reasonable apprehension of bias. The relevant legal principles were (i) apparent bias is a question of law applying an objective test; (ii) professional experience and involvement in similar work do not equal a predisposition to favour colleagues' reports; and (iii) the composition and role of specialist tribunals, and the value of their expertise, are salient factors in assessing appearance of bias. On the facts there was no evidence of predisposition, institutional pressure or close professional esprit de corps to justify disqualification. The appeal was dismissed.

The appellant appealed against the First Division of the Court of Session which had restored the decision of a Disability Appeal Tribunal refusing his claim for disability living allowance. The appellant's complaint, previously upheld by a tribunal of Social Security Commissioners, was that the tribunal's medical member (Dr Armstrong) should have been disqualified for apparent bias because she continued, concurrently, to act as an examining medical practitioner (EMP) providing reports to the Benefits Agency through contracted providers.

Nature of the claim: an allegation of apparent bias and a challenge to the constitution of the tribunal; the appellant sought to set aside the tribunal's decision on that ground.

Procedural history: Disability Appeal Tribunal decision (15 July 1999) refusing the appeal; tribunal of Social Security Commissioners (15 June 2001) accepted that the facts gave rise to a reasonable apprehension of bias; First Division, Court of Session (28 November 2003; 2004 SLT 14) allowed the respondent's appeal and restored the tribunal decision; House of Lords (26 January 2006) heard the appeal.

Issues framed by the court:

• whether the question of apparent bias was one of law appropriate for appellate review;
• whether, applying the Porter v Magill test, a fair-minded and informed observer would conclude there was a real possibility of bias by reason of the medical member's ongoing work as an EMP;
• what significance should be attached to the tribunal member's professional experience, absence of formal judicial oath, disclosure and other safeguards.

Court's reasoning: The House of Lords treated the matter as a question of law requiring the correct application of the objective test for apparent bias. The court found that Dr Armstrong acted as an independent professional adviser when preparing EMP reports and that that independence did not evaporate when she sat as the tribunal's medical member. Professional experience and familiarity with the subject matter were likely to assist the tribunal and were not evidence of an inclination to favour colleague EMP reports. There was no evidence of personal, institutional or pecuniary interest, no sign of a close-knit esprit de corps among the pool of doctors, and no conduct by Dr Armstrong to indicate partiality. Analogies to medical membership of other tribunals (for example, mental health tribunals) supported the conclusion that membership drawn from the relevant professional group does not create apparent bias merely by reason of shared professional background. Accordingly the objective test was not satisfied and the complaint failed.

The House of Lords therefore dismissed the appeal and affirmed the First Division's interlocutor.

Appeal dismissed. Applying the Porter v Magill objective test, the House of Lords held that the fair-minded and informed observer would not conclude there was a real possibility that the tribunal was biased because the medical member had an ongoing role as an examining medical practitioner. Professional experience and concurrent expert work did not, without more, amount to apparent bias; there was no evidence of predisposition, institutional pressure or close professional solidarity that would undermine impartiality.

Disability Appeal Tribunal decision (15 July 1999) refusing appellant's disability living allowance claim; tribunal of Social Security Commissioners (15 June 2001) upheld the appellant's objection of apparent bias; First Division, Court of Session allowed the Secretary of State's appeal and restored the tribunal decision (28 November 2003; reported 2004 SLT 14); House of Lords appeal dismissed [2006] UKHL 2.