Gillies (AP) (Appellant) v. Secretary of State for Work and Pensions (Respondent) (Scotland)

Apparent bias is determined by asking whether a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility that the tribunal was biased. The observer is neither complacent nor unduly sensitive or suspicious and can distinguish relevant from irrelevant facts.

Specialist knowledge and current professional experience do not themselves establish bias. Impartiality requires the absence of a predisposition to favour either side. It is not compromised merely because an expert member evaluates work of the same kind as that performed professionally. The tribunal’s statutory composition, the member’s independent role, and any evidence of personal interest, institutional alignment, prior knowledge or professional solidarity must be assessed. Incorrect application of this test to established facts is an error of law.

The appellant was refused disability living allowance by a disability appeal tribunal. Its medical member, Dr Armstrong, also worked as an independent examining medical practitioner, preparing reports for the Benefits Agency through a subcontractor. The tribunal preferred medical evidence that included a report prepared by another examining medical practitioner.

A tribunal of Social Security Commissioners concluded that an informed bystander would reasonably apprehend bias because Dr Armstrong might favour reports prepared by doctors performing the same work. The First Division of the Court of Session allowed the Secretary of State’s appeal, restored the disability appeal tribunal’s decision and held that the facts did not raise such an apprehension: 2004 SLT 14.

The central issues were whether incorrect application of the apparent-bias test constituted an error of law and whether Dr Armstrong’s concurrent professional work created a real possibility of bias.

1. Disposition. The House unanimously dismissed the appeal and affirmed the interlocutor of the First Division. Lord Hope delivered the leading speech. Lord Rodger and Baroness Hale supplied additional reasons, while Lord Nicholls and Lord Walker agreed with all three. The disability appeal tribunal was properly constituted, and its refusal of disability living allowance therefore remained effective.
2. The governing test and appellate jurisdiction. Per Lord Hope, the test approved in Porter v Magill [2001] UKHL 67 asks whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. Such an observer knows publicly ascertainable facts, distinguishes relevant from irrelevant matters, and is neither complacent nor unduly sensitive or suspicious. Whether a tribunal was properly constituted or acted contrary to natural justice is essentially a question of law. The test must be applied correctly to the established facts, and there can be only one correct answer. An incorrect answer is consequently an error of law for the purposes of the statutory appellate scheme in the Social Security Act 1998.
3. Expertise was not predisposition. Per Lord Hope, Dr Armstrong acted for the Benefits Agency as an independent expert adviser. Professional detachment and independent medical judgment were integral to that role. The informed observer would recognise that the same qualities could be exercised when she sat as a tribunal member. Her experience of preparing reports could expose their weaknesses as readily as their strengths. There was no evidence of alignment with the Agency, personal interest, impaired integrity or conduct suggesting a predisposition to prefer another examining medical practitioner’s report. Specialist knowledge used to assess evidence is not bias; impartiality concerns a predisposition to favour one side.
4. Tribunal context. Per Lord Hope and Baroness Hale, the observer must consider the nature and composition of a specialist tribunal and the qualifications required of its members. Expert membership improves decision-making and does not become suspect merely because members review professional judgments of the kind they make in practice. The analogous reasoning in R (PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311 applied strongly. The adjudicator’s knowledge of the subject matter had to be distinguished from prior knowledge of the particular case.
5. Current professional work. Per Lord Rodger, the continuing nature of Dr Armstrong’s work was not decisive. Parliament had deliberately provided for tribunal members possessing relevant current or personal experience. The position might differ if evidence showed a close-knit professional group, actual predisposition, prior knowledge of the case, or inability to exercise independent judgment. None of those circumstances was present.

1. House of Lords: The House unanimously dismissed the appellant’s appeal and affirmed the interlocutor of the First Division: [2006] UKHL 2.
2. First Division of the Court of Session: On 28 November 2003 the court allowed the Secretary of State’s appeal, held that the circumstances did not create a reasonable apprehension of bias, and restored the disability appeal tribunal’s decision: 2004 SLT 14.
3. Tribunal of Social Security Commissioners: On 15 June 2001 the three commissioners concluded that an objective bystander would reasonably apprehend bias because the medical member was concurrently engaged in preparing reports of the same kind.
4. Disability appeal tribunal: On 15 July 1999 the tribunal unanimously refused the appellant’s appeal against the decision that he was not entitled to disability living allowance.