THE SOCIAL SECURITY COMMISSIONERS



Commissioner's Case No: CSI/136/02



SOCIAL SECURITY ACT 1998


APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW


DEPUTY COMMISSIONER:  A C McGAVIN,  ADVOCATE.







Appellant:					Respondent: Secretary of State


Tribunal: Dundee				Case No: U/05/089/2001/01396





DECISION OF SOCIAL SECURITY COMMISSIONER

1.		This appeal by the claimant succeeds. The decision of the 
Dundee appeal tribunal given on 25th October 2001 was, in my judgment, 
erroneous in point of law. I set it aside and refer the case to a 
differently constituted tribunal (the new tribunal) for re-determination 
in accordance with the directions set out below. I do this under and in 
terms of section 14(8)(b) of the Social Security Act 1998. 

...............................

31.	In all of these ways, the tribunal erred in law and its decision 
must be set aside.

Article 6(1) of the European Convention on Human Rights.

32.	The European Convention on Human Rights has been incorporated into 
the  laws of both England and Scotland by the Human Rights Act 1998. The 
tribunal hearing in this case took place on 25th October 2001, that is, 
after the coming into force, on 2nd October 2000 of that Act.

33.	The relevant part of Article 6(1) of the Convention provides:-

	"			Right to a fair trial

	1.	In the determination of his civil rights and obligations or 
of any criminal charge against him, everyone is entitled to a fair and 
public hearing within a reasonable time by an independent and impartial 
tribunal established by law."

34.    There is no doubt that in deciding the claimant's appeal, the 
tribunal was determining "his civil rights and obligations" (Schuler-
Zgraggen v Switzerland (1993) 16 EHRR 405 at para 46) in terms of 
Article 6(1) of the Convention.

35.	The claimant's submissions were, in effect, that he was denied a 
hearing by an independent and impartial tribunal.  

36.	His argument was that the tribunal was not independent because it 
was in collusion with the appeals service by means of freemasonry to 
deny him justice because of his professed antipathy towards freemasonry 
(134). I shall call this the "independence ground". It is closely linked 
with the claimant's argument that the tribunal, in its decision of 25th 
October 2001, was personally biased against him, and I shall deal with 
both arguments together.

37.	His argument on impartiality was two fold. Firstly he maintained 
justice was not done because the chairman of the tribunal's actions 
showed that he was biased against him when he decided his appeal. I 
shall call this the "impartiality - subjective test - ground".  
Secondly, he maintained that justice was not seen to be done because he 
sought reassurance that the tribunal had no links with freemasonry and 
his request was ignored or refused. I shall call this the "impartiality 
- objective test - ground".

38. 	The Secretary of State's response to the claimant's submissions 
under the Human Rights Convention is recorded in paragraph 3 of his 
Submissions to the Commissioner (page 132) and is:-

	"The claimant's grounds of appeal relate largely to concerns about 
freemasonry which have no relevance to this case and will not be 
addressed in this submission." 

I can only describe the response as most unhelpful.

39.     For the purposes of Article 6(1) the existence of impartiality 
is to be determined according to two tests, one subjective, one 
objective (Piersack v Belgium (1982) 5 EHRR 169 at para 30). 

40.    In order to satisfy the subjective test the claimant requires to 
show that the tribunal, in fact, had personal bias against him whereas 
the objective test requires the claimant to show, not that there was 
actual bias, but that there was "legitimate doubt" as to impartiality 
that can be objectively justified (Hauschildt v Denmark (1989) 12 EHRR 
266).

The impartiality - objective test - ground. 

41.	The claimant maintains that he was a person with a known and 
professed antipathy to freemasonry.  In these circumstances, he asked 
the Appeals Service on two separate occasions (Ms Joan Cattell and Ms 
Macdonald) (page 87) before his tribunal hearing to state whether anyone 
who was going to decide his case had any links to freemasonry.   He 
maintains that his request was refused or at least ignored and he was 
not provided with the information. Further, the tribunal chairman did 
not address the issue (page 100 penultimate paragraph and page 110) at 
any time. 

42.     In Remli v France (1996) 22 EHRR 253, 1996-II p559), a majority 
court held that there was an obligation on every court to check whether 
it is an "impartial tribunal" in accordance with Article 6(1) where the 
point is raised. 

43.       In that case, Mr Remli and his co-accused were of North 
African origin. A "Mrs M" submitted a written allegation that she had 
overheard one of the jurors make the remark "What's more, I'm a racist", 
before the hearing and outwith the court. The Defence counsel asked the 
court to take formal note of it. This is what the European Court said:-

            "It is not for the Court to rule on the evidential value of 
Mrs M's written statement or on whether the racist remark attributed to 
the juror in question was actually made. It notes merely that Mrs M's 
statement - which contained a serious allegation in the context of the 
case - was filed with the Assize Court by the applicant's lawyers, who 
asked the court to take formal note of it. The court  dismissed their 
application  without even examining the evidence submitted to it, on the 
purely formal ground that it was "not able to take formal note of events 
alleged to have occurred out of its presence". Nor did it order that 
evidence should be taken to verify what had been reported - and, if it 
was established, take formal note of it as requested by the defence - 
although it could have done so. Consequently, the applicant was unable 
either to have the juror in question replaced by one of the additional 
jurors or to rely on the fact in issue in support of his appeal on 
points of law (see paragraph 21 above). Nor could he challenge the 
juror, since the jury had been finally empanelled (see paragraph 17 
above) and no appeal lay against the Assize Court's judgement other than 
on points of law (see paragraph 16 above).

	48.   Like the Commission, the Court considers that Article 6 
para. 1 (art.6-1) of the Convention imposes an obligation on every 
national court to check whether, as constituted, it is "an impartial 
tribunal" within the meaning of that provision (art. 6-1) where, as in 
the instant case, this is disputed on a ground that does not immediately 
appear to be manifestly devoid of merit.

	49.   In the instant case, however, the Rhone Assize Court did not 
make any such check, thereby depriving Mr Remli of the possibility of 
remedying, if it proved necessary, a situation contrary to the 
requirements of the Convention.  This finding, regard being had to the 
confidence which the courts must inspire in those subject to their 
jurisdiction, suffices for the Court to hold that there has been a 
breach of Article 6 para. 1(art. 6-1)."

44.	In the present case, it was the claimant's contention that he 
would not receive justice if the person deciding his case was a 
freemason, this was because he was an avowed opponent of freemasonry.  
It did not matter, in my opinion, whether or not the claimant's views 
had been reported in the press, or were widely known. He had made them 
known to the tribunal. He was therefore known by the tribunal to be 
opposed to freemasonry. In those circumstances, he sought the assurance 
which he did.  He did so by letter dated 27th September 2001 which was 
in the following terms (page 87):-

	"Dear Ms Macdonald

	I have received your letter dated 25/9/01.

	It is regards my (IIDB) appeal.

	I submit some more evidence that you may submit to the tribunal on 
my behalf 
	(Enc1&2) + 3.

	Furthermore as I have relayed to Ms Joan Cattell I wish to know if 
anyone from now on who sits and decides my fate has any links to 
freemasonry.

	It is my contention that I should have the right to know this as I 
feel I have been on the receiving end of corrupt practices for far too 
long due to my professed antipathy towards this organisation.

	I thank you.

	Your sincerely

	(claimant's signature)"

45.     There is no record, in the tribunal's file, of any reply having 
been sent to the claimant by the Appeals Service. His letter was 
certainly before the tribunal as it is included in its appeal papers. 
There is no mention in the tribunal's decision of its having addressed 
the issue at all. The matter was simply not dealt with. 

46.	In the Scottish case of Stott v Minogue 2001 SLT (Sh Ct) 25 (to 
which the claimant refers in his submissions at page 110) an accused 
lodged a plea at an intermediate diet that he would be denied a hearing 
by an independent and impartial tribunal without a declaration that the 
sheriff was not a freemason. This was because he had made certain 
statements during interview regarding freemasonry and considered that 
certain police witnesses might be freemasons.  The Sheriff at the 
intermediate diet transferred the case to the Sheriff who was to preside 
at the trial so that she could deal with the request for a declaration.

47.       She decided that "there was no support in the authorities for 
a right of litigants or accused to require judges to make positive 
declarations of the kind sought", and she provided reasons for her 
decision. The difference between that case and the present case is that 
in the Sheriff Court case, the Sheriff addressed the issue raised under 
the Convention. She heard Senior Counsel for the accused, and also the 
procurator fiscal regarding the issue of impartiality.  The point was 
fully argued before the Sheriff who produced a written judgement. In the 
present case no steps were taken to address the claimant's request. Had 
the tribunal addressed the issue, it might have agreed with the Sheriff 
in the case of Stott v Minogue (supra). On the other hand it might not 
have agreed because there are obvious differences between the two 
"tribunals". Clearly, the issue of freemasonry did not "immediately 
appear to be manifestly devoid of merit" (The court in Remli v France 
supra) to the court in Stott v Minogue (supra), and I consider that it 
should not have so appeared to the tribunal.

48.	Bearing in mind, as the court did in Remli v France supra, "the 
confidence which the courts must inspire in those subject to their 
jurisdiction", I find that the tribunal's failure to address the issue 
of impartiality constituted a breach of Article 6(1) of the Convention. 
The tribunal's error in law was such that its decision must be set 
aside.

The impartiality - subjective test - ground,  and the independence 
ground

49.	In order to satisfy the subjective impartiality test the claimant 
requires to show that the tribunal, in fact, had personal bias against 
him. This is difficult to do because there is a presumption of 
impartiality until the contrary is proved (Le Compte, Van Leuven and De 
Meyere v Belgium (1981) 4 EHRR 1; Albert and Le Compte v Belgium (1983) 
5 EHRR 533; Debled v Belgium (1994) 19 EHRR 506).

50.	The word "independent" where it occurs in Article 6(1) has been 
held by the European Court to mean independence of the executive and 
also of the parties (Ringeisen v Austria (No 1)(1971) 1 EHRR 455). 

51.	The claimant maintained that a number of errors and delays had 
occurred in the processing of his applications for Disablement Benefit, 
Reduced Earnings Allowance and Income Support by the Benefits Agency, 
and he produced a number of letters in which apologies were made to him 
for these errors and delays. 

52.	He also maintained that his appeal to the tribunal, although 
allowed, was, allowed to a very restricted extent and not to the extent 
that had any practical effect, such as an award of benefit. Thereafter 
when he sought to have the decision set aside, that application was 
refused by the same person as had chaired the tribunal hearing, and had 
not addressed the issue of impartiality which the claimant had raised. 
Added to the "set-aside" decision were the words "He should carefully 
consider whether or not he wishes to seek leave to appeal against the 
tribunal's decision.", which the claimant took to be an "implied 
threat".  When the claimant sought leave to appeal the tribunal's 
decision, he was again refused, and again the decision was made by the 
same person as had chaired the tribunal hearing, and refused his set 
aside application. The claimant considered that the fact that the same 
tribunal Chairman had made three consecutive decisions in his case, two 
of which effectively denied him a right of appeal in respect of the 
first, and had refused or failed to deal with the issue of impartiality 
which he had raised before the tribunal hearing, showed that there had 
been actual bias against him when his appeal to the tribunal was heard.

53.	He claimed that the tribunal chairman had been appointed to hear 
his tribunal appeal, his set aside application and his application for 
leave to appeal, in order to deny him justice. His contention was that 
there was freemasonry collusion between the Benefits Agency and the 
Appeals Service. The tribunal chairman had been biased against him and 
the tribunal had not been independent either. 

54.	The decision appealed to me is the decision of the tribunal of 
25th October 2001, not the tribunal chairman's later set-aside decision 
nor his leave to appeal decision.  The claimant's allegations of bias 
and of lack of independence were both based upon the premise that 
freemasons in the Appeals Service and in the Benefits Agency had been 
involved in processing his benefits claims and in the arrangements for 
the hearing of his appeal, and that the tribunal chairman was a 
freemason. He provided no evidence that this was the case. 

55.	Accordingly, I find that these grounds fail.

Decision

56.	The tribunal erred in law as indicated in paragraphs 31 and 48 
above and its decision must be set aside. I am unable, without making 
fresh or further findings in fact to give the decision which the 
tribunal should have given, nor is it expedient for me to make such 
findings.  Accordingly, I must refer the case to a newly constituted 
tribunal with directions for its determination, and my directions are as 
follow.

Directions

57. 	I direct the new tribunal to conduct a complete rehearing. It must 
address, as a preliminary issue to that hearing or prior to it, the 
claimant's request that he be advised as to whether any member of the 
tribunal has links to freemasonry. It should give an opportunity for 
full legal argument and the production of evidence thereanent, and I 
direct the Secretary of State to make submissions on the matter. The 
issue should be decided by the tribunal before it proceeds, if it 
considers it may do so, to hear the claimant's benefit appeal.

58.	In the claimant's benefit appeal, I direct the tribunal to 
consider all of the evidence relating to the claimant's skin condition 
and to determine and state what evidence it accepts, what evidence it 
rejects, and why. In so far as questions of reliability and credibility 
arise, I direct the tribunal to explain and justify its assessments.  In 
determining whether or not there was a relevant change of circumstances, 
I direct the tribunal to make full findings in fact and to base its 
decision upon those findings. 

59.	The Appeal is allowed.



						(signed)
						A C McGavin, Advocate.
						Deputy Commissioner
						Date:- 14 August 2002