Primary Health Investment Properties Ltd & Ors v Secretary of State for Health & Ors [2009] EWHC 519 (Admin)

“69. In view of the wide discretion left by the Swedish Parliament to the administrative authorities in these matters, the Government further maintained that the applicant could not claim any ‘right’ to build before a permit had been granted. The Court considers however that, subject to meeting the requirements laid down in the 1947 Act and the 1959 Ordinance, he could arguably have claimed to have a ‘right’ to such a permit. True, the issue of a permit under these circumstances would have involved the exercise of a certain discretion by the authorities, but their discretion would not have been unfettered: they would have been bound by generally recognised legal and administrative principles. 70. Pointing out that the prohibitions at issue affected the rights of a great number of other property owners, the Government alleged that the dispute in the applicant’s case thus came to have connections with his ‘right’ to build that were so remote and tenuous as to make Article 6 inapplicable. There can, however, be no doubt that the prohibitions severely restricted the said “right” and that the outcome of the proceedings whereby he challenged their lawfulness was directly decisive for his exercise thereof… 2. “Civil character of the right at issue… 73. In the circumstances of the present case, the applicant’s disputed “right” to build on his land is of a “civil nature” for the purposes of Article 6(1). This is not affected by the general character of the building prohibitions, not by the facts that the planning procedure, as was submitted by the Government, is part of public law and that a building prohibition is a necessary element in urban planning”

“16. The Government submitted that while the existence of civil rights in the context of employment in the civil service could not be excluded a priori, in principle disputes relating to such employment fell outside the scope of Article 6 of the Convention. The provision was applicable when the private-law features of any given case predominated. In the present case, since the dispute concerned a decision of the regional Council to take the applicant into its permanent employ, it came within the sphere governed by public law. Accordingly, the application was inadmissible ratione materiae. 17. The Commission took the view that the - explicit or implicit - pecuniary aspect of what was at stake in the proceedings was decisive for the purpose of determining whether Article 6 was applicable when, as in the present case, the domestic proceedings had a bearing on the applicant’s economic rights. 18. The court does not accept the Government’s argument. Before the RAC the applicant sought, in addition to implementation of the Regional Council’s decision to recruit him, payment of the difference in salary and damages for the delay in implementing the decision. The right asserted by Mr Nicodemo was essentially economic and the administrative authorities’ discretionary powers were not in issue. Consequently, the private-law features predominated over the public-law features.”

“In order to establish whether a body can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and to their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. It is true that the inspector was required to decide the applicant’s planning appeal in a quasi-judicial, independent and impartial, as well as fair, manner. However, as pointed out by the Commission in its report, The Secretary of State can at any time, even during the course of proceedings which are in progress, issue a direction to revoke the power of an inspector to decide an appeal. In the context of planning appeals the very existence of this power available to the Executive, whose own policies may be in issue, is enough to deprive the inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice as described by the Government and irrespective of whether its exercise was or could have been at issue in the present case. For this reason alone, the review by the inspector does not of itself satisfy the requirements of Article 6 of the Convention, despite the existence of various safeguards customarily associated with an “independent and impartial tribunal”. ”

“…the Court observes that the Regional Commission is a “tribunal” within the meaning of Article 6(1) as it is independent of the executive and also of the parties, it members are appointed for a term of five years and the proceedings before it afford the necessary guarantees…”

“It is instructive to compare the position of temporary judges appointed under s.35(3) of the 1990 Act with that of temporary sheriffs appointed under s.11 of the Sheriff Courts (Scotland) Act 1971. When their position was examined in Starrs v Ruxton; Ruxton v Starrs 2000 S.C. 208, it was held that temporary sheriffs were not an independent and impartial tribunal within the meaning of Art.6(1) of the Convention. In the course of his opinion Lord Justice-Clerk Cullen identified the following points as leading to that conclusion at 226-230: (1) the fact that the Secretary of State’s power to recall their appointment in s.11(4) was without any qualification as to the circumstances in which it might be exercised; (2) the terms of the temporary sheriff’s appointment, which contained a temporal limit to the appointment of one year for which no authority was to be found in the statute, reinforcing the impression that the tenure of office by the individual temporary sheriff was at the discretion of the Lord Advocate; and (3) the restrictions which the Lord Advocate had applied in determining those who qualified for re-appointment, setting out the minimum periods of work which they were expected to perform and an age limit of sixty five for which too there was no sanction in the statute and could therefore change as one Lord Advocate succeeded another. These factors were all absent in the case of temporary judges appointed under s.35(3) of the 1990 Act by July 2003 when Mr Macdonald was presiding over the trial in which the appellant was convicted. The Scottish Ministers had no power to recall his appointment during the period determined in accordance with para.5 of Sch.4 which was expressly stated in his commission of appointment. And the Lord Advocate had for all practical purposes withdrawn completely from any involvement in the reappointment of temporary judges after the period of their current appointment had come to an end. For all practical purposes, subject to consultation with the Justice Minister, these matters were now exclusively under the control of the Lord President as the head of the judiciary.”

“Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the judrisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1).”

“The reference to “full jurisdiction” has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel fore the respondents in these appeals. But subsequent European authority shows that “full jurisdiction” does not mean full decision making power. It means full jurisdiction to deal with the case as the nature of decision making requires.”

“… section 203 of the 1996 Act and the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71) do provide safeguards that the review will be fairly conducted. Thus the reviewer must be senior to the original decision-maker (section 203(2)(a), regulation 2), plainly to avoid the risk that a subordinate may feel under pressure to rubber-stamp the decision of a superior. The reviewer must not have been involved in making the original decision (section 203(2)(a), regulation 2), to try to ensure that the problem is addressed with a genuinely open mind. The applicant has a right to make representations, and must be told of that right (regulation 6(2)). Such representations must be considered (regulation 8(1)). The applicant is entitled to be represented (regulation 6(2)). If the reviewer finds a deficiency or irregularity in the original decision, or in the manner in which it was made, but is nonetheless inclined to make a decision adverse to the applicant, the applicant must be informed and given an opportunity to make representations (regulation 8(2)). The reviewer must give reasons for a decision adverse to the applicant (section 203(4)). The applicant must be told of his right to appeal to the county court on a point of law (section 203(5)).These rules do not establish the reviewer as an independent and impartial tribunal, but they preclude unreasoned decision-making by an unknown and unaccountable bureaucrat whom the applicant never has a chance to seek to influence, and any significant departure from these procedural rules prejudicial to the applicant would afford a ground of appeal.”

“In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of an inspector and a Review Board. The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute, is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary fact and the inferences drawn from those facts. But the decision does not, and indeed should not, set out all the evidence. The weight and impression given by that evidence will be a matter for the judgment of those before whom it is presented. The extent to which they have been influenced will not be manifest from the decision and it may indeed be something of which they themselves are unaware. That is, after all, the origin of the principle which determines the question of bias in terms of risk and not of actual bias. Real possibility and real danger are necessarily tests for the very reason that actual bias cannot readily be demonstrated. Thus there is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the fact-finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence. Accordingly, I conclude that there has been no determination of the claimant’s entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the review Board, caused by its connection to a party to the dispute.”

“ “(a) in order to determine whether there was bias in a case where actual bias is not alleged “ the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased” (per Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 at 494 [103]). It follows that this exercise entails consideration of all the relevant facts as “the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased” (ibid [104]). (b) Public perception of a possibility of unconscious bias is the key. It is necessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson [2000] 200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”” (per Lord Steyn in Lawal v Northern Spirit Limited [2003] ICR 856, 862 [14]). (c) in ascertaining whether there is a case of unconscious bias, the courts must look at the matter by examining other similar analogous situations. “One does not come to the issue with a clean slate; on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem. (Lord Steyn in Lawal v Northern Spirit Limited (supra), 862 [15]). (d) the approach of the court is that “one starts by identifying the circumstances which are said to give rise to bias .. [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule” (per Lord Steyn in Lawal v Northern Spirit Limited (supra), 864-5 [20]) (e) the need for a Tribunal to be impartial and independent means that “it must also be impartial from an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect” (Findlay v United Kingdom (1997) 24 EHRR 221 at 224-245 and quoted with approval by Lord Bingham of Cornhill in R v Spear [2003] 1 AC 734 [8]”

“It has however been a fundamental principle since the inception of the scheme that in assessing CMR the role of the District Valuer is to stand independent of both parties and impartially determine the appropriate figure. The Department of Health has always required the District Valuer’s assessment to be objective and unbiased. The impartiality of the District Valuer and the inability of the PCT to influence the level of a District Valuer’s CMR have been deliberate features of the Scheme from the outset, restated over the years in various discussions between the Department of Health, British Medical Association, VOA and NHSLA (FHSAU), to ensure that CMR assessments are immune from being influenced by any financial pressures or budget restraints bearing on the PCT. The function of the District Valuer in making a CMR assessment is to ensure that the GP receives the correct level of remuneration from the public purse – no more and no less- and the District Valuer has no vested interest in whether the level of the CMR figure arrived at is high or low. Therefore although the request to undertake an assessment is received from the Primary Care Trust (PCT), the District Valuer does not act as an agent of the PCT when carrying out the task and this principle is clearly stated in the District Valuer’s guidance and training material on DRRS casework.”

“The District Valuer receives case instructions for the DRR Scheme from the PCT (Health Boards in Scotland and Wales). The PCT is the client in so far as it is to the PCT that the DV will issue the report and send the invoice. For the avoidance of doubt, GPs are independent contractors (rather than part of the NHS) and DVs will not act for them. Since the Scheme’s inception, it has been a fundamental principle that the role of the District Valuer in assessing CMR figures for GMS practices is to act impartially in arriving at an appropriate figure, standing between the parties. The DV is independent of both parties in the sense that the DV’s purpose is not to act as an agent of the PCT or in an adversarial capacity, neither does the DV act on behalf of the GP. The function of the District Valuer in supplying the CMR figure for GMS practices is to ensure that GPs receive the correct level of remuneration from the public purse-no more and no less. The District Valuer has no vested interest in putting the level of the CMR figure either high or low. Although instructed by the PCT, the DV is effectively “divorced” from that body so that the PCT is unable to influence the CMR level. This is deliberate as a fundamental aspect of the Scheme, as agreed with the BMA, has always been a requirement to ensure that the impartial valuer’s decisions are immune from any financial pressures bearing on the PCT and are not influenced by any local cost limitations or budget restraints.”

“A PCT can properly seek advice from the DV as to the property element of PMS contract payments and can ask the DV to give CMR valuations and enter into negotiations with the PMS GP practices.”

“The FHSAU’s requirements in requesting a report from the CEO valuer are: • To obtain a factual description of the GP’s premises and their location • To obtain a factual account of the GP’s views and supporting evidence on the valuation of the property as set out in the GP’s representations. • To obtain a factual account of the DV’s views and supporting evidence on the valuation of the property as set out in the DV’s representation and case file. • To obtain an opinion on the weight to be attached to all the evidence presented by the GP and the DV. The CEO Valuer’s report is not a valuation and therefore the CEO Valuer does not introduce fresh evidence. • To obtain the CEO valuer’s recommendation for consideration. The arrangements are regarded as providing an effective and through professional review of the local DV decision by senior members of the Valuation Office centrally, who act in this matter quite independently of the Health Bodies and local District Valuers and who will make an informed recommendation to the FHSAU, with whom the final decision lies.”

“The rationale behind requesting the case file in its entirety is to safeguard the interests of the GPs from being disadvantaged in an appeal as, historically, a majority of the GPs who were involved in these disputes were not represented and would often put in submissions, or they would include weak submissions. GPs do not have to be professionally represented to appeal a CMR. If the entire case file is sent to the CEOV then it ensures that the GP’s position is protected. The purpose of calling for the DV’s files is to ensure that nothing of substance has been inadvertently missed from the parties’ contentions, whether helpful to the view expressed by the DVor the GP. It ensures that no relevant points raised earlier have been omitted by the GP, as sometimes occurs in preparing their representations particularly if not assisted by an agent. Now that most GP’s are professionally represented in an appeal, the above mentioned rationale does not apply. Therefore, from August 2008 the CEOV has not routinely called up the DV’s case file or core rating file as GPs are now seldom without professional representation to assist with their submissions.”

“District Valuer Services is a dedicated valuation, surveying and property business within the Valuation Office Agency. Our public sector background means we have a unique understanding of the needs of our clients. We specialise in providing an independent and impartial service that fully meets financial audit requirements, and can offer all round value for money at competitive prices. … Our commitment to quality customer service means we provide solutions tailored specifically to the needs of our clients, we develop close working relations with them, and we continually strive to improve the service we provide. … Our clients We serve a wide range of clients drawn from all parts of the public sector, with whom we work in partnership, matching our professional expertise to their particular requirements. … Our clients include … NHS trusts, Primary Care Trusts and Health Boards. ”

“In autumn 2000 I presented the Valuation Office Agency with a challenge to turn itself into a “right-first-time” organisation, able to meet the rising expectations of its customers in an increasingly efficient and customer focused way. … This revised framework document captures and underpins that vision and strategy: setting out the aim, objectives and priorities of the Agency and the framework of responsibilities and authorities within which it operates. In addition, Ministers will continue to set stretching targets for the efficiency and quality of service to be provided by the Agency for all its clients and customers in annually agreed forward plans.”

“The Agency conducts its operations through a network of local offices and specialist teams. The Chief Executive’s Office, although based in London, includes a substantial number of post-holders located in various parts of the country. … The Agency operates on a net control arrangement, recovering the full resource cost of its funding from the clients for whom it provides valuation services. … Financial Objectives The financial objective of the Agency is to recover the full economic costs of its operation, within each business segment, through charges for the services it provides.”

“The valuations that the VOA undertakes for the Inland Revenue and other land valuation service clients can also be right first time, although the measurement of “right” in this context will rest on meeting each client’s specific needs. This will mean the VOA understanding its clients’ objectives and ensuring that its valuations are suited to meeting those objectives. It will also mean ensuring that its valuations are completed on time and within the price agreed with the client.”

“Speaking for myself, I accept the statements contained in the justices’ affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction…I am satisfied that there has been no waiver of the irregularity, and, that being so…the conviction [must be] quashed.”

“It is important to stress at the outset that the facts do not support the claimant’s primary argument that Dr Armstrong was to be seen as a Benefits Agency doctor or that she was in some other way aligned with the Benefits Agency. The tribunal commissioners and their Lordships of the First Division were in agreement on this point. Her relationship with the Benefits Agency was as an independent expert adviser. Her advice was sought and given because of the skills that she was able to bring to bear on medical issues in the exercise of her professional judgment. A fair-minded observer who had considered the facts properly would appreciate that professional detachment and the ability to exercise her own independent judgment on medical issues lay at the heart of her relationship with the benefits Agency. He would also appreciate that she was just as capable of exercising those qualities when sitting as the medical member of a disability appeal tribunal.”

“The question then is whether there were grounds for thinking that Dr Armstrong was likely to be unconsciously biased when she was examining medical evidence because of a predisposition to prefer the EMP report as against any contrary evidence due simply to her current involvement in providing reports as an EMP. Doctors holding current engagements to provide these reports can be assumed, no doubt, to have a special interest and experience in this kind of work. The group of doctors to which they belong can also be distinguished from NHS doctors generally, as was pointed out by the tribunal of commissioners. But why should these facts be said to lead to the conclusion that there was a real possibility that she was biased in favour of the views expressed by the EMP? The weakness of the argument that this was a real possibility is exposed as soon as the task that Dr Armstrong was performing as an EMP is compared with the task which she was performing on the tribunal. In each of these two roles she was being called upon to exercise an independent professional judgment, drawing upon her medical knowledge and her experience. The fair-minded observer would understand that there is a crucial difference between approaching the issues which the tribunal had to decide with a predisposition in favour of the views of the EMP, and drawing upon her medical knowledge and experience when testing those views against the other evidence. He would appreciate, looking at the matter objectively, that her knowledge and experience could cut both ways as she would be just as well placed to spot weaknesses in these reports as to spot their strengths. He would have no reason to think, in the absence of any other facts indicating the contrary, that she would not apply her medical knowledge and experience in just the same impartial way when she was sitting as a tribunal member as she would when she was acting as an EMP.”

“Pointing to section 11, the Norwich City Council said that the district valuer was like an appeal body. He should not be employed to make the initial valuation where he would sit on appeal from it to make the final valuation. That point impressed me much for some time. It seemed contrary to the accepted principle that “justice should not only be done, but should be manifestly and undoubtedly be seen to be done”: see per Lord Hewart C.J. in Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 K.B. 256, 259 and F.G.C. Metropolitan Properties Co. Ltd. V. Lannon [1969] 1 Q.B. 577, 599. But this principle-like that of natural justice-must not be carried too far. It is flexible and must be adapted as the case may require. Mr. Simon Brown showed us good reasons why it did not apply here. The “district valuer” is the valuation officer or the deputy valuation officer for the district: see section 27 (2) of the Housing Act 1980. His ordinary work is to make valuations for the rating list. The practice there is, as I understand it, for one of those in his office to prepare the draft valuation list: and then, if any ratepayer objects and proposes a different figure, for someone else in the office-the valuation officer or his deputy-to revise the valuation. That system is in accord with the Rating Acts. It works perfectly well in rating cases. A similar system is applied in these valuations under the Housing Act 1980. The initial valuation under section 10 (1) (on which the local council fixes the price) is made by one of the clerks in the office. If the tenant takes objection and refers the matter to the district valuer under section 11, then the decision is made by the valuation officer himself or his deputy. This system works perfectly well. That is shown by the fact that in 50 per cent. of the cases the valuation is reduced: and also by the even more striking fact that no tenant has ever taken any objection to the system. The only person to take objection has been Norwich City Council. So justice is in fact done by reason of the final valuation being done by a senior officer quite distinct from the one who made the initial valuation. It is seen to be done by reason of the fact that no tenant has ever complained of it.”

“The issue raised by the Council was whether or not the Secretary of State was entitled to take into account the existence of the DV to assist in s.10 valuations when deciding to intervene. … In Norwich the suggestion that there might be a perception of bias was in essence by the party in whose favour the bias (if there was any) would have been perceived to exist. The absence of objection by the tenants, therefore, was in fact material to the claim that the Secretary of State was entitled to take account of the possible assistance of the DV to the City Council. If the tenants did not object, the involvement of the DV could not be challenged and the DV would be available. There was no objection from anyone else affected and the system was very widely used indeed. … It is significant, however, that Kerr LJ considered that the Secretary of State could not have insisted on the local authority using the DV for the section 10 valuation whatever the circumstances (see p 835 A-C). The important point to note, however, was that whether or not there might be a perception of bias (and whether it might be waived) in any particular case raised by a particular tenant was not in issue: the issue was whether the availability of the DV to assist in s.10 valuations could be taken into account as a material consideration in the SoS’s intervention.”