BD -v- Department for Social Development (DLA) (Tribunals - procedure and practice) [2017] NICom 32 (06 July 2017)

BD-v-Department for Communities (DLA) [2017] NICom 32

Decision No: C27/14-15(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 26 February 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is a claimant’s appeal from the decision of an appeal tribunal sitting at Newry on 26 February 2014.

2. For the reasons I give below, I disallow the appeal.

REASONS

Background

3. The appellant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 20 August 2012 on the basis of needs arising from ovarian cancer. The Department disallowed the appeal on the basis that the residence and presence test was not satisfied. The Department subsequently obtained a report from the appellant’s general practitioner (GP) on 8 May 2013. The Department obtained advice from its medical officer. On 14 May 2013 the Department revised the decision to the extent that it had been refused on basis of residence and presence. Nevertheless, it decided on the basis of all the evidence that the appellant did not satisfy the prospective test condition of entitlement to DLA. The appellant appealed.

4. The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member. The tribunal disallowed the appeal. The appellant then requested a statement of reasons for the tribunal’s decision and this was issued on 2 June 2014. The appellant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was refused by a determination issued on 9 July 2014. By an application received on 11 August 2014 the applicant applied to a Social Security Commissioner for leave to appeal.

Grounds

5. The grounds of appeal submit that the tribunal has erred in law on the basis that the hearing was unfair on the basis that an interpreter was not present and the appellant’s son was required to act as an interpreter instead.

6. The Department was requested to make observations on the appellant’s grounds. Mrs Hulbert of Decision Making Services (DMS) responded on behalf of the Department. She submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application for leave to appeal.

7. On 5 December 2014 Chief Commissioner Mullan granted leave to appeal on the basis that an arguable issue arises as to whether the appellant was in a position to participate effectively in the appeal tribunal proceedings.

The tribunal’s decision

8. From the tribunal’s statement of reasons I can see that it had before it documentary material in the form of the Department’s submission. This included the appellant’s DLA claim form, a GP factual report and medical evidence in Polish with a hand-written English translation. It also had sight of the appellant’s GP records. The appellant attended the hearing along with her son and was represented by a solicitor. A Departmental presenting officer also attended. It appears that there was some discussion at the outset of the hearing about the appellant’s ability to follow proceedings in English, as Polish is her first language. However, the outcome of the discussion is not recorded.

9. The tribunal heard evidence and accepted that the appellant had undergone serious surgery (including a hysterectomy and small bowel dissection) that rendered her fatigued and in pain, followed by a series of chemotherapy treatments. It found that the appellant’s difficulties reduced over the post-surgery period, albeit that the sessions of chemotherapy did in all probability result in flare-ups or an exacerbation of symptoms. The tribunal found that by the beginning of February 2013 the appellant should have been able to manage all self-care activities and plan, prepare and cook a main meal for herself. It concluded that she did not satisfy the 6 month prospective test. It further found that by February 2013 residual pain and fatigue would not have been so great that she would have been virtually unable to walk. She did not claim that she required guidance or supervision out of doors. Therefore it disallowed the appeal.

Relevant legislation

10. The legislative basis of the care component is found at section 72 of the Social Security Contributions and Benefits Act (NI) 1992. This provides:

72.-(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which-

(a) he is so severely disabled physically or mentally that-

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or

(b) he is so severely disabled physically or mentally that, by day, he requires from another person-

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

(2) Subject to the following provisions of this section, a person shall not be entitled to the care component of a disability living allowance unless-

(a) throughout-

(i) the period of 3 months immediately preceding the date on which the award of that component would begin; or

(ii) the such other period of 3 months as may be prescribed, he has satisfied or is likely to satisfy one or other of the conditions mentioned in subsection (1)(a) to (c) above; and

(b) he is likely to continue to satisfy one or other of those conditions throughout-

(i) the period of 6 months beginning with that date; or

(ii) (if his death is expected within the period of 6 months beginning with that date) the period so beginning and ending with his death.

The legislative basis of the mobility component is section 73 of the same Act. This provides:

73.-(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which-

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; or

(ab) he falls within subsection (2) below;

(b) he does not fall within that subsection but does fall within subsection (2) below;

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

…

Hearing

11. I held an oral hearing of the appeal. A Polish interpreter had been requested and was in attendance. However, the appellant did not attend. Mr Donnelly attended for the Department. In addition, Mr Hatton of Law Centre (NI) attended in the role of amicus curiae. I am grateful to Mr Donnelly and to Mr Hatton for their helpful submissions.

12. The circumstances of the case were, broadly speaking, not in dispute. It was accepted that the applicant required a Polish interpreter to give evidence. It is not certain from the papers whether the applicant’s solicitor had requested an interpreter for the purpose of the hearing, but that the interpreter did not attend, or whether no interpreter was requested and arranged. In any event, it appears that the applicant was informed that no interpreter was available about 15 minutes before the hearing. In these circumstances, it appears that the applicant’s son, who was present as a witness and to provide support to his mother, and who had experience working as an interpreter - although not in tribunals - was asked to act as the interpreter by the applicant’s solicitor.

13. The tribunal record contains the words “Spoke to appellant’s solicitor and representative re appellant’s ability to follow proceedings in English - Polish being her first language”. However, there is no direct reference to arrangements for interpreting. There is nothing in the tribunal file to indicate that an interpreter had been requested or that arrangements for an interpreter to attend had been made.

14. Mr Hatton in the role of amicus curiae referred to the case of ZO v Secretary of State for Work and Pensions [2010] UKUT 143, to a Northern Ireland Courts and Tribunals Service (NICTS) public consultation document on the provision of in-court interpretation services and to the current NICTS website under the section “Interpreter and Translation Services”. In ZO v SSWP Judge Lane had stated that it is preferable to have an independent interpreter rather than a relative acting as interpreter, but there is not absolute rule that only an independent interpreter will do. Judge Lane had referred to the First-tier Tribunal Bench Book. However, the equivalent Bench Book in Northern Ireland appears silent on this issue.

15. Mr Hatton indicated that the standards proposed for interpreters in the NICTS consultation document included minimum qualifications and being subject to a professional code of conduct. He noted the likely difference between a NICTS approved interpreter and a relative attending the hearing with the appellant. He observed that, apart from the brief reference to the appellant’s ability to follow the proceedings by the tribunal, there was nothing to address the issue of whether the appellant’s son was able to fulfil the role of interpreter. Indeed, the record of proceedings did not make clear whether the appellant’s son actually had acted as interpreter. Additionally, there was nothing to suggest that the tribunal was aware that the appellant’s son worked part-time as an interpreter.

16. The appellant, who did not appear at the hearing before me, has made written submissions that there were misunderstandings and misinterpretations on the part of the tribunal. As examples, she refers to a statement in the record of proceedings that she came back from Poland two days after each [chemotherapy] treatment, which she says is not accurate. She disputed the entry in the record of proceedings that she started to walk normally about 3-4 days after each treatment, saying that she has never been able to walk normally since chemotherapy. She refers to an error in the record of proceedings to do with the purpose of her second and third surgery. Again, she disputed a response in the record of proceedings that walking returned to normal in February 2013, saying that walking never returned to normal.

17. The appellant further submits that the tribunal misunderstood her evidence that, after 15-20 days of returning to Northern Ireland in September-October 2012, she could walk to a bench outside some apartments. She says she could only do this with help. The appellant submits that the tribunal did not understand that while she said that her son was working, he was only working at weekends. The appellant submits that when her son said that his girlfriend had children, she did not have children at that date.

18. The appellant takes issue with the summary of her condition in the statement of reasons and the tribunal’s conclusion that whereas chemotherapy did in all probability result in a flare-up or exacerbation of symptoms, the after-effects of chemotherapy should not have existed by October 2012. She submits that, whereas the tribunal took the view that she should not have been suffering the after effects of chemotherapy by the end of the prospective period, in fact she was still suffering these, saying that nerves in her feet were damaged. She submits that she was still recovering in May 2013.

19. The appellant further submitted that by acting as interpreter, her son could no longer act as her witness and could no longer act as her support and help her remember facts, causing her stress.

20. Mr Donnelly accepted for his part that there were some dangers inherent in the situation of a relative acting as an interpreter. However, he did not accept that the tribunal had erred in law for that reason.

Assessment

21. I observe that jurisprudence from the relatively distant past indicates that there is no obligation on the tribunal to provide an interpreter at a hearing. For example, in R(I)11/63, at paragraph 19, the Great Britain National Insurance Commissioner said “I am not prepared to accept the solicitors’ contention, in support of which no authority has been cited, that in these proceedings it was the duty of anyone other than the claimant to provide an interpreter”.

22. There is an unambiguous right to an interpreter in criminal proceedings, both at common law (see R v Lee Kun [1916] 1 KB 227) and since the commencement of the Human Rights Act 1998 (see Kamasinski v Austria [1991] 13 EHRR 36). However, I am not aware of any authority to this effect in respect of tribunal proceedings. Nevertheless, it appears that the Secretary of State for Work and Pensions accepted in CDLA/2748/2002 that the principles applying to criminal proceedings under Article 6(3)(e) of the European Convention on Human Rights (ECHR) are also applicable to all hearings within the scope of Article 6(1).

23. This position appears to be put into practical application by the Northern Ireland Courts and Tribunals Service (NICTS). In material appearing on the NICTS website, it is stated:

Other Proceedings - Non English Speaking

In relation to civil and family proceedings, when an action is privately funded, the party requiring the services of an interpreter must normally make the arrangements and meet the costs. NICTS will, however, arrange for foreign language interpreters for non-English speaking parties in civil and family proceedings in the following circumstances -

· In alleged domestic violence cases or cases involving children;

· In committal cases where the individual whose liberty is in jeopardy does not understand or speak English.

In other civil and family cases, (including Tribunal Hearing) NICTS will arrange and fund an interpreter where the judge directs that an interpreter be arranged by the court - e.g. in cases where the party cannot understand the language of the court well enough to take part in the hearing and in cases where the party cannot get public funding and cannot afford to fund an interpreter privately…

24. Therefore in practice, it is normal for an interpreter to be provided where necessary to enable an appellant to take part in proceedings effectively.

25. I observe that in DS v Secretary of State for Work and Pensions [2013] UKUT 572 Upper Tribunal Judge Wikeley considered a case where an interpreter had been requested under the relevant policy in Great Britain but was not provided. He accepted that the failure of those administering the tribunal to respond to the request for an interpreter was a procedural irregularity. He further accepted that it had the potential to be a material error of law, but only if it resulted in an unfair hearing. I fully endorse the approach taken by Judge Wikeley.

26. In Kaur (t/a Major Cars) [2013] UKUT 601, a case within the transport jurisdiction of the Upper Tribunal, Judge Hinchcliffe noted that no interpreter had been requested in a particular case before the Deputy Traffic Commissioner below. However, as the case proceeded, it was evident from the transcript that the appellant did not have the ability to follow the proceedings. Judge Hinchcliffe considered the Equal Treatment Benchbook which was issued by the Judicial College for England and Wales in November 2013, reflecting legislative changes introduced by the Equality Act 2010. A relevant part states:

38. Situations may arise where the judge has to take a proactive role, and make some effort to clarify and resolve the extent of any language difficulty faced by a witness. It is part of the judge’s function to assess an individual’s fluency and comprehension. If a judge hearing a case considers that an interpreter is required, an adjournment should be granted for that purpose.

27. While the Equality Act 2010 does not generally apply in Northern Ireland, and the Equal Treatment Benchbook 2013 is designed for judiciary in another jurisdiction, I do not think that any exception can be taken to the general principle outlined above.

28. In ZO v Secretary of State for Work and Pensions [2010] UKUT 143, Upper Tribunal Judge Lane considered a case where an interpreter had been booked but had failed to attend a hearing. The appellant and her son were present. The appellant’s son, who spoke English well, offered to act as interpreter. The tribunal declined that offer and gave the appellant the choice of adjourning or having the case determined on the papers. It proceeded on the papers and the appeal was disallowed. Judge Lane said that “… 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”.

29. Judge Lane found that the tribunal had not decided the case in accordance with the overriding objective in Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. This 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. While the overriding objective is not part of the rules governing tribunals in Northern Ireland, a requirement of procedural fairness clearly is. Judge Lane further said that:

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.

30. The present case is the converse of ZO v SSWP. In the case before me, the appellant’s son acted as interpreter. However, it is submitted by the appellant that, by agreeing to act as an interpreter -

a) her son could no longer act as her witness;

b) her son could no longer act as her support and help her remember facts, causing her stress.

31. I consider that the principal question in this case is one of procedural fairness. At issue is the appellant’s access to an interpreter in order for her to understand and participate in the tribunal proceedings. The fact that the appellant’s son acted as interpreter, and was evidently qualified to do so, meant that the proceedings were procedurally fair.

32. I accept that, having agreed to act as interpreter, the appellant’s son could no longer act as a witness or support to his mother. However, that was her choice in the situation where the interpreter did not attend. An alternative may have been to seek adjournment. However, since it was the appellant who elected to proceed, under advice from her solicitor, I do not consider that the tribunal’s decision can be in error of law. The tribunal played no part in the appellant’s choice and the loss of her son as witness or supporter was a consequence of her decision alone.

33. The appellant submits that there were inaccuracies in the translation of her evidence. However, it does not appear to me that the matters which the appellant raises necessarily demonstrate inaccurate translation. Rather they are matters which go to credibility - such as her statement that she did not say that she began to walk normally 3-4 days after chemotherapy, but that she never walked normally again. Other matters, such as whether she returned to Northern Ireland within two days of chemotherapy, whether her son’s girlfriend had children or whether her son worked at weekends, strike me as immaterial.

34. In principle, I accept that a tribunal’s failure to provide an interpreter where needed, would amount to an error of law. I further accept that a tribunal’s provision of an interpreter who gave an inaccurate translation of an appellant’s evidence, would amount to procedural irregularity capable of amounting to an error of law. However, in the latter case I consider that it would need to be demonstrated that the inaccurate evidence had a material effect on case outcome or was capable of making material difference to the fairness of the proceedings.

35. I do not accept that any failings in the interpretation of the appellant’s evidence had an effect on the outcome of this appeal. The tribunal was aware of the fact that the appellant had undergone major surgery and chemotherapy in 2012 and accepted that this had given rise to mobility and care needs. The issue for it was whether it was likely that the appellant would continue to have mobility limitations and care needs by the end of the prospective period on 19 February 2013, some five months after her last chemotherapy and some 10 weeks after her last surgery. I am not satisfied that any alleged mistranslation of the appellant’s evidence would have resulted in a material effect on the case outcome, or would have been capable of making a material difference to the fairness of the proceedings.

36. It follows that I must disallow the appeal.

(signed): O Stockman

Commissioner

30 June 2017

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Northern Ireland - Social Security and Child Support Commissioners' Decisions