Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No.  CDLA 1503 2012

ADMINISTRATIVE APPEALS CHAMBER

NG v SSWP (DLA)

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier tribunal is set aside.

I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

Directions for new hearing

A The new hearing will be at an oral hearing.

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

C The tribunal should ensure that the interpreter listed to assist in this case has not previously been involved in the appellant’s appeal.

D The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

E If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

These directions are subject to any later direction by a tribunal judge.

REASONS FOR DECISION

1 The claimant and appellant is appealing against a decision of the First-tier Tribunal sitting at Newcastle-upon-Tyne on 7 11 2011 on appeal reference SC228 11 02201.

2 The grounds of appeal put forward for the appellant related to the accuracy of the interpretation of the appellant’s evidence to the tribunal. A First-tier Tribunal judge granted permission to appeal. The judge commented:

“The principal reason for granting permission is the issue of the accuracy of translation by the interpreter at the hearing. The interpreter was an approved interpreter.”

3 I agree with the First-tier Tribunal judge that the issue of interpretation is an arguable issue in this case. In taking that view I am assisted considerably by the careful submissions for the appellant by her representative, a welfare rights advisor based ina local hospital.  There are bound to be some cases where interpretation of critical aspects of evidence can cause problems such that the tribunal does not have a full and fair view of the evidence actually given by an appellant. And there will be a few cases where this only emerges when the appellants and representatives have seen the record of proceedings and statement of reasons of tribunals for decisions. Where the issue only emerges at that stage, as here, then the issue is properly one to form a ground of appeal.

4 Here there are specific and careful points made for the appellant about the adequacy of the interpretation. I have no idea (nor probably had the First-tier Tribunal) of the specific qualifications of the interpreter or the interpreter’s knowledge of the specific dialect spoken by the appellant. It is always, for example, a relevant question whether the interpreter was interpreting into English or from English. And in many cases regional and local dialect is important. A First-tier Tribunal cannot in my view be expected to check all those issues, so some may emerge only when the full record of proceedings and statement of reasons are available, as here.

5 I take one of the grounds of appeal put forward by the representative as an illustration, namely how far the appellant could walk. By way of background, the representative had asked for the higher rate of the mobility component or lower rate of the mobility component for the appellant. The written submission to the tribunal had questioned the medical report presented for the Secretary of State by the examining doctor as follows:

“… he has grossly overestimated her abilities both physically and mentally. For example … he states that her likely speed of walking is 70 metres a minute. Given that a normal walking speed is actually 60 metres a minute … and that [the appellant] has a limp and is in pain we submit that this must be grossly inaccurate.”

The full details given by the appellant in the standard form DLA1 are difficult to read and somewhat inconsistent, but suggest that she can walk 50 yards before severe discomfort, walking very slowly.

6 It is therefore entirely appropriate for the appellant to be asked about this by the tribunal. The relevant part of the record of proceedings shows the evidence recorded as given when it did so:

“Can walk only 5 minutes at a time. Pain restricted. Can’t take child to school and back. Can get as far as that car and stop. … not walking anywhere. Told to walk 3 minutes. I do that.”

7 In its statement of reasons the tribunal records as follows:

“18 She confirmed that she could walk 5 minutes at a time.

19 She indicated to the tribunal how far she felt she could walk from where she was sitting to outside the venue.

20 She indicated that she had been told that she has to walk for three minutes and that she does that.

21 Interestingly when questions further on how far she could walk outside the venue in her opinion she indicated that she could walk to the third parking bay outside the venue which she felt would take her some five minutes. However, she went on to say she could reach the building opposite in some three minutes. The building is approximately 30 to 35 yards further than the third parking bay indicated.”

8 In most cases that would, if I may say so, be an exemplar of how this issue should be considered by a tribunal. But the representative took issue with this for the following reason:

“[The appellant] states that she told the interpreter that the hospital had told her to try and increase her exercise tolerance to 5 minutes of walking but that she was not able to achieve this yet. She states that she did not say at all that it would take 5 minutes to reach the third parking bay and she recounts that is was her daughter’s car they were referring to and that would have taken about a minute, and also that the interpreter never asked her about the building opposite in helping her gauge walking distance.”

9 I have set that out in full as a specific illustration both of the representative’s grounds of appeal and of the general issue of accurate interpretation.

10 In this case there is plainly important medical evidence indicating that the appellant has chronic pain in her legs, arms and neck and that this is severe and intermittent, limiting her mobility markedly. The question, as the tribunal rightly noted, is how markedly it is limited. And there is a clear question of variability as well. In a fact-sensitive area such as this it is important as a matter of fairness that the tribunal’s questions are put properly to the appellant and that the appellant’s replies are given fully and accurately to the tribunal.

11 Both parties have agreed with my provisional view that, taking all these factors into account, this is a case where the appeal should be granted and the case reheard by the First-tier Tribunal with a direction that the previous interpreter be not used for the further hearing. The appeal is allowed for those reasons.

David Williams

Upper Tribunal Judge

26 07 2012

[Signed on the original on the date stated]