Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.

The decision of the Nottingham First-tier Tribunal dated 15 October 2012 under file reference SC045/11/05379 does not involve any error of law. The decision of the tribunal stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The issue raised by this appeal

1. The issue raised by this appeal is this: if an Appellant’s representative asks for an interpreter to be present at the hearing of his appeal before the First-tier Tribunal (“the tribunal”), and no action is taken on that request, does the tribunal’s decision to proceed with the hearing and decide the appeal against the Appellant involve an error of law?

2. The answer to that question is possibly; or possibly not. It all depends on the circumstances of the case. In the present case, there was no breach of natural justice or any denial of the right to a ‘fair trial’, contrary to the assertion by the Appellant’s solicitor. It follows that the tribunal’s decision stands.

The background to the appeal

3. The Appellant, a Kurdish speaker of Iraqi origin, is a man now aged 46. He claimed employment and support allowance (ESA) on the basis of back pain and headaches.

4. On 21 June 2011 the Appellant completed an ESA50 questionnaire. He appears to have received no help in doing so. He ticked certain boxes on the form (often, in answer to a question about his capability to undertake a particular function, to the effect that “it varies”). He added short textual answers in some of the boxes provided. In response to the question about “picking up and moving things” on page 9 of the ESA50 he added in the margin “I don’t understand this question – is not clear”.

5. On 9 August 2011 the Appellant had a medical examination by a nurse. No interpreter was present. He was accompanied by his wife, but there was no suggestion that she was assisting with translating. The interview lasted just under 40 minutes. The nurse noted that the Appellant “coped well at interview… normal amount of speech…did not require prompting at interview… was able to give a clear account of his condition and typical day history with good eye contact and rapport throughout the assessment process.” The nurse’s opinion was that descriptor Sc for standing and sitting applied, scoring 6 points.

6. On 24 August 2011 a decision maker concluded that the Appellant scored 0 points on the work capability test and was no longer entitled to ESA. The decision maker’s view, disagreeing with the nurse’s opinion, was that as the Appellant had managed a recent plane journey to Kurdistan he was not entitled to any points for difficulties with standing and sitting.

7. On 26 August 2011 the Appellant sent in a letter of appeal, adding that “I still have a strong back pain and head pain as I am not fit for work”, and referring to ongoing medical investigations that he was having.

8. On 21 November 2011 the Appellant completed and returned the standard enquiry form to the tribunal office. He ticked the box stating that he wanted an oral hearing, and ticked the ‘No’ box to the question “Do you want an interpreter?”

9. On 3 February 2012 solicitors, who had recently been instructed by the Appellant, wrote to the tribunal office, asking to be put on record as his representatives. Their letter continued “We are also writing to confirm that our client will require a Kurdish-Sorani interpreter for the tribunal hearing in this matter.”

The hearing before the First-tier Tribunal

10. On 15 October 2012 the tribunal held an oral hearing of the Appellant’s appeal. The Appellant attended with his wife (but not his representative). There was no interpreter present. The tribunal’s record of proceedings does not indicate how long the hearing lasted. However, the tribunal judge has recorded a considerable amount of information by way of both the tribunal’s questions and the Appellant’s answers. There is no indication in that note that the tribunal considered whether or not an interpreter was needed.

11. The tribunal took the view that the 6-point standing and sitting descriptor applied. However, overall it confirmed the decision to disallow the claim for ESA. The Appellant’s appeal was accordingly dismissed.

12. The tribunal judge subsequently issued a detailed 41-paragraph statement of reasons. This made no mention of the representative’s request for an interpreter to be arranged for the hearing. It also made no mention of any communication problems. Indeed, the tribunal found as a fact “the appellant is able to make himself understood as he attended the medical and the tribunal hearing and gave evidence by himself and had no problems in communicating” [28].

13. On 27 December 2012 the Appellant’s solicitors applied to the tribunal below for permission to appeal. They set out several grounds of appeal. These included the failure to provide an interpreter which led, so his solicitors argued, to the Appellant’s evidence being found to be contradictory and so misunderstood. District Tribunal Judge (DTJ) Carlin (who had not chaired the original tribunal) both refused permission to appeal and declined to set aside the tribunal’s decision. Referring to the tribunal’s failure to take any action on the solicitor’s letter of 3 February 2012 (see paragraph 9 above), he reasoned as follows:

“This amounts to a procedural irregularity. However, it is clear from the statement of reasons that the appellant was able to communicate with the tribunal (see paragraph 28). Had the appellant been in difficulty, the tribunal is likely to have recognised this and adjourned the hearing. Because the appellant was able to communicate with the tribunal, it is not in the interests of justice to set aside the decision made.”

The proceedings before the Upper Tribunal

14. On 25 June 2013 I gave the Appellant permission to appeal. Having referred to DTJ Carlin’s reasoning, I continued thus:

“3. However, is that really right? One must surely be alive to the possibility that a combination of not wishing to lose face and not wishing to challenge the tribunal’s authority might create the impression of good communication skills. It is also possible that some nuances may have been lost. Should not the FTT have been put on guard by the Appellant’s handwritten comment on p.9 of the ESA50 questionnaire?

4. It does not seem that the representative’s letter of 03 02 2012 was either (a) acted upon by the FTT office or (b) drawn to the attention of the FTT on the day. The tribunal did not address the question of whether it needed to adjourn. I note that the Appellant’s representatives, who are solicitors and officers of the court, are very clear about the need for an interpreter (see e.g. grounds of appeal at [3]).”

15. Matt Jagger, who now acts for the Secretary of State in these proceedings, does not support the Appellant’s appeal to the Upper Tribunal. He therefore proposes that I dismiss the appeal against the tribunal’s decision. In reply, the Appellant’s solicitors repeat and expand upon the original grounds of appeal, but very much focussing on the absence of an interpreter and the alleged unfairness that ensued.

The Upper Tribunal’s analysis

The starting point

16. The Social Security and Child Support Tribunal’s Benchbook states (at p.91) that:

“There is no statutory duty on the Tribunals Service to provide an interpreter, although there is a policy of providing suitably qualified and professional interpreters when needed. And of course Rule 2(2)(c) imposes a duty on the tribunal to ensure, as far as practicable, that the parties are able to participate fully in the proceedings.”

The request for an interpreter

17. The extract above is correct as a statement of principle. Here, however, there had been a specific request for an interpreter to be provided. It seems plain that no action was taken on that request by the tribunal office before the hearing. It is also clear from the tribunal file that the representative’s letter of 3 February 2012 was not before the tribunal at the hearing on 15 October 2012. It was not in the appeal papers as issued to the tribunal members. It was not on the tribunal office’s backing or administrative file. It first appeared (on file) as an attachment to the solicitor’s application for permission to appeal (dated 27 December 2012), i.e. after the tribunal hearing.

18. I find that the solicitor’s letter of 3 February 2012 was sent to the tribunal office but mislaid by the tribunal administration. As a result it was never drawn to the attention of a judge, either as an interlocutory matter or at the oral hearing of the appeal. I do not think the Appellant’s solicitors can be criticised for not following the matter up – they were entitled to take the view that they had made the request and it would be acted on in the normal way.

19. The tribunal’s failure to consider the request in the letter of 3 February 2012 that an interpreter be present was, as DTJ Carlin accepted, a procedural irregularity. It also certainly had the potential to be a material error of law, but only if it resulted in an unfair hearing.

The grounds of appeal

20. The Appellant’s solicitors make a number of points in support of the appeal. In the first instance they argue that the Appellant “can only communicate effectively in Kurdish-Sorani. Consequently as a result of his inability to communicate effectively at the tribunal hearing, the Appellant was disadvantaged as he was unable to put his case forward effectively.” There are at least two difficulties with this ground of appeal. First, the representatives were not at the hearing, and the tribunal made an express finding of fact about the Appellant’s ease of communication at [28] (see paragraph 12 above). Second, as Mr Jagger notes, the representative’s assertion is difficult (if not impossible) to reconcile with the Appellant’s ability to complete the ESA50 (notwithstanding the question on p.9) and to make himself understood at the medical examination. I would simply add that many native English speakers find one or more questions on the ESA85 difficult to follow.

21. The grounds of appeal then refer to several passages in the statement of reasons where it is said that the tribunal misunderstood what the Appellant was saying, and that this resulted in unfairness. On closer examination, however, the examples of alleged misunderstanding are actually an attempt to re-argue the case on its facts. This can be illustrated by looking at just the first two such instances.

22. In the first example the tribunal is criticised for the finding that “The stick was given to him by a friend and not by a medical professional” [23]. The Appellant accepts that this finding is accurate so far as it goes, but wishes to add that his doctor has subsequently recommended he use a stick, and he had advised him that he already had one.  However, the record of proceedings notes exactly this evidence: “Where get crutch from? From friends. Sometimes used and sometimes not. Now always. When went back home [to Kurdistan], suggested”. Plainly there was no misunderstanding.

23. In the second example the grounds of appeal take issue with the tribunal’s finding that the Appellant “did not have any special arrangements from the check-in to the gate” [23] in respect of the flight to Kurdistan. This is followed in the grounds of appeal by a detailed account of how the Appellant managed that journey through the airport and onto the plane. Again, however, the record of proceedings captures the gist of this account: “Special arrangements at airport? Same plane as friends. What do? Holding me… Airport walk from check in to gate. Holding 2x people to gate etc and inside of plane.” I need not refer to the other three examples of alleged misunderstandings in any detail. They are all simply an attempt to re-argue the appeal on its facts.

The Appellant’s further submissions in reply to the Secretary of State

24. In their reply to the Secretary of State’s submission, the Appellant’s solicitors make four further points. For the reasons that follow, these are unpersuasive in the circumstances of this case.

25. First, the representatives reiterate their belief that misunderstandings about the Appellant’s evidence occurred due to poor communication. I disagree, for the reasons set out above. There is a further difficulty, not addressed by the Appellant’s solicitors, in that the tribunal found the claimant’s evidence to be contradictory ([26] and [40]) and so unreliable. The examples given by the tribunal did not turn on any potential linguistic misunderstanding (e.g. the Appellant stated “he could not dress any part of him as he could not move his arms above a certain height and then later demonstrated he could” [40]). Credibility, of course, is pre-eminently an issue of fact for the tribunal to assess.

26. Second, they argue that it cannot be right that a claimant who needs an interpreter should be required to raise the issue at the hearing, as that would be plainly unjust, as he would in effect be penalised for his inability to communicate. This is in response to Mr Jagger’s argument that as a general rule the onus is on a dissatisfied appellant to complain about a procedural irregularity at the time it occurs, and not to complain only once an unfavourable decision has been received. Mr Jagger cites as authority CS/343/1994 (at paragraph 5 per Mr Commissioner Rice), although this was not a case involving interpreters. The importance of complaining about poor interpretation at the time, where the appellant is aware of the problem, was also emphasised in Secretary of State for Work and Pensions v MQ (DLA) [2013] UKUT 155 (AAC). There will, however, always be cases where that is not practicable, as the problem may only become apparent later – see NG v Secretary of State for Work and Pensions (DLA) [2012] UKUT 291 (AAC). To that extent, I agree with the point that the Appellant’s solicitors seek to make. The difficulty is that in the light of the conclusions above, that argument simply will not withstand scrutiny in the particular circumstances of the present case.

27. Third, the Appellant’s solicitors refer to and expand upon the point I made when giving permission to appeal about appellants not wishing to be seen as either losing face or challenging the tribunal’s authority (see paragraph 3 of the grant of permission to appeal at paragraph 14 above). Certainly, tribunals need to be alive to such inter-personal and cultural factors. Again, however, this is an attempt to go behind a clearly reasoned finding of fact by the tribunal in this case that this Appellant communicated effectively.

28. Fourth, I note that the Appellant made a further claim to ESA on 24 October 2012, a week after the tribunal hearing, and was not only awarded ESA but was put in the support group. However, the effective decision dates in question are a year apart and the evidence was doubtless not the same. The difference in the outcome of the two claims is equally consistent with some deterioration in the Appellant’s condition. This point takes the Appellant no further.

Other matters

29. The original grounds of appeal also raised a further challenge on the basis that the tribunal had failed to consider the fluctuations in the Appellant’s ability and whether he could do certain activities repeatedly. These grounds have not been actively pursued and rightly so, as it is clear from the tribunal’s comprehensive and detailed decision that it looked at matters appropriately in the round.

30. There is a minor mistake in the tribunal’s decision in that it assumed that the Appellant had actually been awarded 6 points for standing and sitting, whereas in fact the examining nurse’s opinion on this matter had not been accepted by the decision-maker (see paragraphs 5 and 6 above). However, this comes no where near a material error of law.

Summing up

31. There was a procedural irregularity in that the tribunal failed to consider the request for an interpreter. On the facts of this case, however, the Appellant was able to communicate effectively. No unfairness or injustice flowed from the procedural irregularity, and so there is no material error of law in the tribunal’s decision.

Conclusion

32. For the reasons explained above, I must therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11). 

Signed on the original Nicholas Wikeley

on 14 November 2013 Judge of the Upper Tribunal