The Cunningham Decision


(Full title - Secretary of State for Work and Pensions v. a decision of the Deputy Social Security Commissioner of 19th February 2003 in application for a Disability Living Allowance by Helen Cunningham 2004)

The Cunningham decision, a Scottish Court of Session case, re-examines the issue of bias of examining medical practitioners (EMPs) who also sit as panel members on appeal tribunals. This issue was thought to have been dealt with by an earlier Scottish Court of Session ruling, known as the Gillies case which considers apparent bias where a panel member was formerly an Examinining Medical Practitioner.

Apparent bias

The Cunningham case began life as commissioner’s decision CSDLA/444/2002 , now reported as (R(DLA)7/04), in which there was held to be "apparent bias" because one of three medical reports was prepared by an EMP, Dr B, who had previously sat as a panel member with the chairman and lay-member on 39 previous sessions out of 191.

"I consider that a well informed layman might conclude that there was a real possibility of bias, where an expert appears before a tribunal including members with who he has sat on a number of previous occasions."

"This is more likely to be so before a tribunal where the evidence is written and the tribunal does not see all the experts giving evidence and being cross-examined so that they can make a proper comparison."

" If one expert is professionally known to the members, through having sat with them and advised them on how to approach medical evidence, I can see that there is a danger that they will apply their knowledge of him, consciously or unconsciously, to an assessment of the weight to be given to his evidence as against the other reports, where the doctor concerned might not be known to the tribunal."

This was confirmed by the Scottish Court of Session decision.

“….in the present case the former member of the Tribunal was one of a number of expert witnesses whose conflicting evidence had to be assessed, not even in person but simply on paper. Bearing in mind the influence which Dr. B may reasonably be expected to have exerted during his previous dealings with two of the three members of the Appeal Tribunal, we can well understand how this state of affairs would be - again to borrow a phrase from Lord Steyn - "worrying in the eyes of the fair-minded observer".

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