Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CIB/2431/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 27/3/09 under reference 919/08/01937 is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1       The appellant appeals the decision of the First-tier Tribunal with my permission. While I was not persuaded that the grounds of appeal she submitted disclosed an error of law, I have come to the conclusion that the tribunal’s decision must be set aside for failing to provide a fair hearing and thereby falling into error of law.

2       The appellant elected to have an oral hearing. The hearing had been previously listed twice but postponed once and then adjourned, through no fault of the appellant. The appellant and her son appeared for the third hearing on 27/3/09 only to discover that the official interpreter had failed to show up. The appellant’s son spoke good English and was prepared to interpret for the appellant, but the tribunal rejected this offer. She was accordingly offered the choice of returning on yet another occasion or having the appeal heard on the papers. The appellant could not face the prospect of a further adjournment and said the hearing should go ahead on the papers. The appeal was unsuccessful.

3       An appellant has a right to a fair hearing under Article 6 of the European Convention on Human Rights. This will normally require the tribunal to enable the appellant to participate in the hearing. In addition Rule 2 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 states that the overriding objective of the Rules is to enable the tribunal to deal fairly and justly with cases, which includes …(b) avoiding unnecessary formality and seeking flexibility in the proceedings and (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings. Neither of these objects was achieved on the approach taken by the tribunal.

4       It is preferable to have an independent interpreter rather than a relative acting as interpreter, but there is no absolute rule that only an independent interpreter will do. Indeed, in giving guidance on this issue, the First-tier Tribunal Bench Book states that the use of ‘a relative acting as an interpreter is permissible provided that he understands what is required, i.e. that he should simply translate the questions accurately and relay to the tribunal the answers given by the appellant in his own words without comment or explanation. This is sometimes difficult to get across, and particularly in cases where credibility is in issue it may be preferable to adjourn with a direction…However, each case must be considered on its merits and there is certainly no rule which requires a tribunal to adjourn for an official interpreter, and a tribunal could be criticised for adjourning if there is a relative or friend willing and able to undertake the task’.

5       There is nothing in the Record of Proceedings or Statement of Reasons to indicate that the tribunal tried to explain the duties of an interpreter to the son, or tried to ascertain whether he would be able to carry out the functions of an interpreter satisfactorily. It will normally become rapidly apparent if the relative is not up to the task, is being pressurised or is offering advice - the questions and answers relayed will be longer or shorter than expected and discussion between the appellant and relative may occur. The tribunal can call a halt to the hearing to if it has concerns.

6       In a case such as this, both basic fairness and efficient case management required the tribunal at the very least to ascertain whether it could proceed with the son as interpreter. Instead, the tribunal was inflexible. The appellant was forced to choose between even longer delay, on the one hand, and non-participation in her appeal on the other. She was faced with ‘Hobson’s Choice’, that is to say, no choice at all.

7       I have borne in mind the Secretary of State’s reasons for not supporting the appeal. He submits that although the appellant was put on the spot, unable to consult her representative and given a stark choice, it was a choice nonetheless. It seems to me that the three factors reinforce the conclusion that she was denied a fair hearing.

8       The appellant’s situation was not comparable to one in which the appellant opts for a paper hearing from the outset or fails to show up for an oral hearing. In such situations, it may be reasonable to conclude that the appellant is content for the case stand or fall on the evidence before the tribunal. But here, the appellant opted for an oral hearing, attended the hearing (more than once, it should be said) and might well have been able to participate in it had the tribunal considered the issue in conformity with Rule 2 and requirements of a fair hearing.

9       The appeal is accordingly remitted to a fresh tribunal to undertake a complete rehearing of the appeal.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 12 May 2010