Upper Tribunal (Administrative Appeals Chamber), June 18, 2014, [2014] UKUT 285 (AAC)

Resolution Date:June 18, 2014
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:PL v Secretary of State for Work for Defence (WP and AFCS) (Tribunal procedure and practice (including UT) : fair hearing)
 
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PL v Secretary of State for Defence (WP and AFCS)

[2014] UKUT 0285 (AAC)

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CAF/2283/2013 & CAF/2284/2013

PL v Secretary of State for Defence (WP and AFCS)

[2014] UKUT 0285 (AAC)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the Appellant's appeals.

The decisions of the First-tier Tribunal dated 13 December 2012 under file references ENT/0132/2012 and AFCS/00111/2012 do not involve an error on a point of law.

The decisions of the First-tier Tribunal accordingly stand.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The background to this appeal

  1. The Appellant served as an officer in the Royal Navy from 1980, rising to the rank of Commander, until medically discharged in 2010. As a result of a medical condition which is not relevant to the present proceedings, he had been restricted to shore service after 1991. He undertook a number of high-level and demanding senior managerial onshore roles in the Navy thereafter. At the same time his late wife was diagnosed with breast cancer in 1992; she fought a long battle, with a number of ups and downs, before she died in 2007. The Appellant was diagnosed with adjustment reaction in November 2003; although various labels were used at different times, this mental health condition was the principal invaliding condition on his medical discharge.

  2. The Appellant's service therefore bridged the period before and after April 6, 2005. He made claims under both the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 2006 (SI 2006/606; ``the SPO'') and the Armed and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/349; ``the AFCS''). As to the former, the Secretary of State decided that the Appellant's adjustment reaction was neither attributable to nor aggravated by his SPO service. As to the latter, the Secretary of State decided that the disabling condition arose during SPO service and had not been made worse by AFCS service. The Appellant lodged appeals against both decisions.

  3. The First-tier Tribunal (``the Tribunal'') held a hearing in two parts. The first hearing was in Southampton in June 2012. The Tribunal adjourned part-heard to enable the Appellant to provide further medical evidence, having reached the provisional view that the Appellant's condition was neither due to nor worsened by either SPO or AFCS service. It then held a final hearing in London on December 13, 2012. The Tribunal heard further evidence on the issue of the extent to which any of the stressors causing or worsening the adjustment reaction were service-related. In the event the Tribunal dismissed both appeals. The Tribunal issued a single composite statement of reasons covering both decisions. I am adopting the same course.

    The Upper Tribunal proceedings and the decision in summary

  4. I held an oral hearing of the Appellant's application for permission to appeal on 5 December 2013, as a result of which I gave permission to appeal on two grounds. The first ground was the Appellant's contention that the Tribunal had reached a perverse conclusion as regards the absence of any link with service, a conclusion for which it had no or insufficient evidence. The second ground concerned an alleged breach of natural justice, in that the medical member of the Tribunal, a Senior Military Psychiatrist, was at the time of both hearings a serving RAF Group Captain.

  5. I subsequently held an oral hearing of the appeal on May 15, 2014. The Appellant attended, representing himself, and Mr Adam Heppinstall of Counsel appeared for the Secretary of State. I am grateful to them both for their clear and well-argued written and oral submissions. My conclusion is that the Tribunal's decisions do not involve any error of law. I shall deal with the surviving two grounds of appeal in reverse order as the second ground is plainly the more fundamental, affecting both the SPO and the AFCS decisions in equal measure, and with implications for other appeals heard within this Chamber.

    The apparent bias ground of appeal

    The legal test

  6. The Appellant and Mr Heppinstall were in agreement as to the legal principles involved. As Mr Heppinstall reminded me, they were helpfully summarised by the Chancellor of the High Court, sitting in the Court of Appeal in Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515 (at paragraph 35):

    `The following principles relevant to this application are clear. First, the test of apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased: Porter v Magill [2001] UKHL 67, [2002] AC 357 at [103] (Lord Hope). There is no difference between the common law test of bias and the requirements of an independent and impartial tribunal under Article 6(1) of the European Convention of Human Rights ("the Convention"): Lawal at [14] (Lord Steyn). Secondly, underlying both Article 6 of the Convention and the common law principles is the fundamental consideration that justice should not only be done but should manifestly and undoubtedly be seen to be done: R (McCarthy) v Sussex Justices [1924] 1 KB 256, 259. Thirdly, the fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, at [2] (Lord Hope). Fourthly, the facts and context are critical. Each case turns on an intense focus on the essential facts of the case: Man O' War Station Ltd v Auckland City Council [2002] UKPC 28 at [11] (Lord Steyn). Fifthly, if the fair-minded and informed observer would conclude that there is a real possibility that the tribunal will be biased, the judge is automatically disqualified from hearing the case. The decision to recuse in those circumstances is not a discretionary case management decision reached by weighing various relevant factors in the balance. Considerations of inconvenience, cost and delay are irrelevant: AWG Group Ltd at [6] (Mummery LJ).'

    The Appellant's submissions

  7. The Appellant's central submission was that the fair-minded and informed observer would conclude that there was indeed a real possibility that the...

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