Neutral Citation Number: [2013] UKUT 0601 (AAC)                            Appeal No: T/2013/62

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF MR R SEYMOUR, 
DEPUTY TRAFFIC COMMISSIONER for the WEST MIDLANDS TRAFFIC AREA, 
DATED 11 JULY 2013

Before:
Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
Mr L Milliken, Member of the Upper Tribunal.
Mr D Rawsthorn, Member of the Upper Tribunal.

Appellant:
SUKHVIR KAUR t/a MAJOR CARS

Attendance:
For the Appellant: 	Mrs Kaur in person, accompanied by Mr Singh.

Appeal heard at: 	Field House, Breams Buildings, London
Date of hearing: 	15 November 2013
Date of decision: 	27 November 2013

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be allowed.
The matter is remitted back for re-hearing before a different traffic commissioner.
An interpreter should be arranged to assist the appellant at the fresh public inquiry.

Subject matter:	
Fair hearing. Absence of an interpreter.

Cases referred to:
Cuscani v The United Kingdom -  32771/96 [2002] ECHR 630 (24 September 2002)

REASONS FOR DECISION:

1)	This was an appeal from the decision of the Deputy Traffic Commissioner for the West Midlands Traffic Area made on 11/7/2013 when he refused to grant an application for a restricted public service vehicles operator’s licence authorising the use of one vehicle.

2)	The factual background to this appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision and is as follows:
(i)	On 21/12/2012 the Central Licensing Office received an application from Major Cars and Travel Ltd for a restricted public service vehicle operator’s licence. The main business of the company, it appears, is taxi and private hire work. The director of the company was named as Mrs S Kaur. Subsequently, Mrs Kaur indicated that she wished to apply in her personal capacity, and this change was permitted.
(ii)	Voluminous correspondence then followed, as the office attempted to obtain further information relating to Mrs Kaur’s main occupation, financial standing, and other matters.
(iii)	Finally, on 9/3/2013, the office sent a ‘propose to refuse’ letter to Mrs Kaur, indicating that a public inquiry would be held if requested. Mrs Kaur replied on 18/3/2013 requesting a public inquiry – which took place in Birmingham on 11/7/2013.
(iv)	The call-up letter referred to the publication “Guide to Public Inquiries” available online (or by hard copy upon request). This Guide contains the following advice:

SPECIFIC REQUIREMENTS
3.1 If anyone attending the inquiry has any specific requirements or needs to be taken into account e.g. for religious purposes, wheelchair access, hearing or sight impairment, or if you need an interpreter, please notify the Office of the Traffic Commissioner at least two weeks before the date of the inquiry in order that the necessary arrangements can be made.
No request for an interpreter was made.
(v)	At the public inquiry it quickly became apparent that Mrs Kaur’s language skills were not up to the rigours and challenges of an important judicial hearing:

DTC: Mrs Kaur, do you understand English well enough to be able to …
A: Yeah, little bit. Not much…

DTC: Do you understand me?
A: (no audible response)
…

DTC: Right. What would you expect to earn from a school contract for each vehicle per week?
A: 20 hours.
(vi)	It transpired that Mrs Kaur’s original plan was to emulate the business model she had in relation to the taxi business, where the drivers owned or leased their own vehicles and the business acted as a hub, attracting enquiries and allocating work. The Deputy Traffic Commissioner attempted to explain that, if this were the plan, then it would not be lawful because it was not possible for someone who owns and operates a minibus to do so under someone else’s operator’s licence.
(vii)	Her husband, Mr Major Singh, accompanied Mrs Kaur at the public inquiry. He then contributed to the evidence by saying that his wife was confused: “If she has been granted the licence, then she gonna have own vehicle, right”.
(viii)	The Deputy Traffic Commissioner responded that he, too, was confused because he would want to see evidence that Mrs Kaur actually owned or controlled any minibus to be operated under the licence. He could not agree to the operation of minibuses along the same lines as the taxi operation.
(ix)	The Deputy Traffic Commissioner also took the opportunity to explain to Mr Singh and Mrs Kaur about the requirement that Mrs Kaur’s main job should not be the operation of public service vehicles, using the analogy of Mr Singh working in a car factory, on an assembly line, fitting wheels. He then suggested to Mrs Kaur that she did not meet the necessary criteria.

DTC: Have you understood what I have said?
A: Yeah.

DTC: Do you meet those criteria or not?
A: (no response)

DTC: Do you understand what I was actually saying in terms of English?
Mr Singh: Yes.

DTC: No, not you.
Mr Singh: Sorry.

DTC (to the applicant): Did you understand what I was saying to your husband?
A: Yeah.

DTC: You did? You understood the English?
A: I understand not much.

DTC: Did you understand what I was saying to your husband?
A: Yeah, little bit. Little bit, not much.

DTC (to Mr Singh) Can you explain to your wife what I have just said?
…

DTC: I will ask you again. Explain to me how this operation is going to work?
A: Can I speak Punjabi to him so he will …

DTC: Well, you could have a translator, you know. It is not very satisfactory doing it through your husband because your husband is clearly involved in this situation.
A: OK.
(x)	Subsequently, Mr Singh attempted to explain that he and his wife had received erroneous advice and that, if necessary in order to be compliant, his wife could acquire her own vehicles. However, the Deputy Traffic Commissioner maintained that the reason Mrs Kaur did not qualify for a licence was because the vehicle(s) would not be under her control. Mr Singh repeated his willingness to ensure compliance in this regard:

Mr Singh: My Lord, as you advised me here, I have to own vehicles. We accept that and we got to prove that we can buy the vehicles? We’re accepting that and we want to prove that.
DTC: I cannot take it any further. I think you are deliberately misunderstanding what I am saying.

3)	At the hearing of this appeal, Mrs Kaur appeared, again unrepresented, and again accompanied by Mr Singh who, we agreed, could put Mrs Kaur’s submissions to us.

4)	In summary, Mr Singh contended that he and his wife had laboured under a genuine misunderstanding. As soon as the position was explained, Mrs Kaur was willing to adjust her plans. However, she was deprived of any opportunity to properly re-consider or amend her business plan. Had she been permitted to, she could have demonstrated her willingness and ability to comply with the requirements of the law as to her main business or occupation, and as to control over vehicles operated under any licence granted. 

5)	Without setting out the whole of the transcript, we think it right to set out the impressions that this tribunal formed from reading it:

a)	There were clear language difficulties faced by Mrs Kaur;

b)	Mrs Kaur did initially suggest that she wanted a licence in order to be able to ask drivers, in possession of their own minibus, to undertake work under her licence;

c)	The Deputy Traffic Commissioner regarded this as unacceptable;

d)	The Deputy Traffic Commissioner then ‘held’ Mrs Kaur to her original statement and refused to allow her any opportunity to reconsider or amend her proposal;

e)	Despite Mr Singh’s attempt to persuade him otherwise, the Deputy Traffic Commissioner insisted that Mrs Kaur would not control the vehicles that she intended to operate under the licence, and he then forced the case to a conclusion without pausing to consider whether, having taken on board his advice during the hearing, Mrs Kaur could, in fact, offer an alternative acceptable operating model;

6)	We have some sympathy with the position of the Deputy Traffic Commissioner, not least because no interpreter had been requested – but, nevertheless, we think that the hearing became more and more unfair as it went along.

7)	So far as the language difficulties are concerned, the Equal Treatment Benchbook (Judicial College, November 2013) sets out the principles that apply to judicial proceedings:

http://www.judiciary.gov.uk/publications-and-reports/judicial-college/2013/equal-treatment-bench-book 

111. When giving evidence, people for whom English is not a first language may not always fully understand what they are being asked. It is one thing to know the basics of a language and to be able to communicate when shopping or working. It is quite another matter having to appear in court, understand questions, and give evidence. It should also be remembered that many ethnic minorities prefer to speak their mother tongue at home. Judges should therefore be alert to different language needs, and should not assume, simply because a witness has lived in the UK for many years, that he or she does not require an interpreter.

112. 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.

8)	In Cuscani v The United Kingdom -  32771/96 [2002] ECHR 630 (24 September 2002) the European Court of Human Rights, considered a case where a person who needed one, did not have an interpreter in court (despite being legally represented). The court held that, in such a situation, a breach of Article 6 of the European Convention on Human Rights arose. The court said that the ultimate guardian of the fairness of the proceedings was the judge.

9)	It seems to us that, when it became clear that confusion was aggravated by language difficulties, and that Mrs Kaur was struggling to get her points across, the Deputy Traffic Commissioner failed to consider whether fairness required that Mrs Kaur should have an opportunity to properly understand all that was being said, and to put her case calmly with the assistance of an interpreter. We also find a particular unfairness in then holding the applicant to a statement that she had made, and refusing to allow her any opportunity to take advice, or to reconsider and amend her proposal, once the flaw in her initial plan had been pointed out. 

10)	Mrs Kaur, with the support of Mr Singh, wished to assert that if the law required her to own or control vehicles operated under the licence, then she would accept this and would be able to comply with it – and Mr Singh attempted to explain that his wife could prove her ability to afford the acquisition. Regrettably, it appears from the transcript that, towards the end of proceedings, the Deputy Traffic Commissioner had lost patience, and had heard enough. For our part, however, we find no basis for the suggestion that Mr Singh was deliberately misunderstanding what the Deputy Traffic Commissioner was saying.

11)	In addition, we do not see why the Deputy Traffic Commissioner did not take the initiative to stand the matter down to allow Mrs Kaur an opportunity to confer with her husband. If the Deputy Traffic Commissioner was of the view that any amended proposal lacked real commitment, he should have explained why he doubted the sincerity of any alternative model, and he should have given the applicant an opportunity to resolve his suspicions.

12)	In all the circumstances we think that Mrs Kaur is entitled to a fresh opportunity to demonstrate that, if granted a licence as requested, she can and would genuinely operate within the law. If she has not already done so, she would be well advised to seek advice from a transport lawyer or specialist. It should not be necessary that she be professionally represented at the fresh public inquiry, but she must have the assistance of an interpreter with whom she can communicate and who can explain to her all that is said at the hearing. The Traffic Commissioner’s office will need to ascertain the language/dialect involved.

13)	The appeal is allowed. The matter is remitted back for re-hearing before a different traffic commissioner, and an interpreter should be arranged to assist the appellant at the fresh public inquiry.

Judge Mark Hinchliffe, DCP
27 November 2013