ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEAL CHAMBER
Judge David Williams
 UKUT 18 (AAC)
Strand, London, WC2A 2LL
B e f o r e :
SIR HENRY BROOKE
DAME JANET SMITH DBE
| Faith Stewart
|- and –
|The Secretary of State for Work and Pensions
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Martin Chamberlain (instructed by the Solicitor to the Department for Work and Pensions) for the Respondent
Hearing date: 7th March 2011
Crown Copyright ©
Sir Henry Brooke:
"to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority".
(Public Health (Control of Disease) Act 1984, s 46(1))
"(1) There may be made out of the Social Fund in accordance with this Part of this Act -
(a) payments of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, maternity expenses and funeral expenses."
"4.20 Payments will also be made to help low-income families who are unable to meet the reasonable cost of a funeral for which they are responsible. This will replace the death grant which has remained at £30 for nearly 20 years. The new system will also take the place of the existing supplementary benefit provisions for meeting actual funeral costs borne by supplementary benefit claimants. There will therefore be a common approach to low-income groups.
4.21 The Government accepts that it will be important to handle this part of the fund with a minimum of detailed investigation into personal circumstances at a distressing time for the person seeking help. We believe this is best done through making clear that receipt of any of the main income-related benefits – income support, family credit and housing benefit – will qualify someone for help. This avoids a separate assessment of income. It also means that more people, not less, will be able to get proper help with the costs of a funeral."
"We propose that funeral expenses will be available automatically from the social fund to people on income-related benefits and will be paid quickly and, equally importantly, without intrusion or means-testing at the time of death."
"(a) the claimant or his partner (in this Part of these Regulations referred to as "the responsible person") in respect of the date of claim for a funeral payment-
(i) has an award of income support, state pension credit, income-based jobseeker's allowance, working tax credit [in prescribed circumstances], child tax benefit, housing benefit or council tax benefit [in prescribed circumstances]…
That regulation has now been replaced by, and rewritten in, Regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 in which the list of qualifying benefits has been set out in numbered list form but is otherwise unchanged, except for the addition of income-related employment support allowance..
2. The proceedings in this case
1. Job-seeker's allowance, state pension credit and income support
None of these benefits are available to prisoners.
2. Child tax credit
A prisoner can claim child tax credit for her child (assuming that her income is limited) if the child is living with her in prison in a prison mother and baby unit, or if her claim is made in agreement with anyone else entitled to claim the credit.
3. Working tax credit
There are formidable difficulties in the path of any prisoner who seeks a working tax credit when involved in a scheme that enables prisoners to work. The judge thought it possible – although unlikely – that some prisoner could pass the only available "narrow test", so that he could not say that there was any express rule which prevented prisoners from obtaining a funeral payment by this route.
4. Housing benefit and council tax benefit
Unless the custodial part of the prison sentence is likely to last substantially more than one year, there is scope for a successful claim for a funeral payment to be made through a prisoner's partner.
"Qualifying benefits: summary
At the end of 2003 there may have been some mothers able to claim successfully child tax credit for their children. They would be able to claim funeral payments successfully for their children or any other individual for whom they were responsible. A prisoner could continue claiming and receiving housing benefit or council tax benefit if the total absence from the home was likely to be less than 13 weeks. Such a prisoner could claim a funeral payment successfully if otherwise entitled to claim. And claims could be made in most cases through the partner of a prisoner if the absence was less than a year. Few if any prisoners would have been entitled to the disability element of working tax credit at the time because they would be prevented from receiving most relevant disability benefits because of their status as prisoners. Prisoners then had a nil entitlement to income support and to state pension credit. Prisoners would be prevented by the circumstances of their imprisonment from being entitled to jobseeker's allowance. No such prisoner could claim a funeral payment successfully."
3. The issues in the appeal
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." (My emphasis)
"There are three issues in the appeal, on all of which Judge Williams found against Ms Stewart:
(i) Did the refusal of a funeral payment constitute direct discrimination against Ms Stewart on the grounds of her status as a prisoner?
(ii) If not, did that refusal constitute indirect discrimination against Ms Stewart on the grounds of her status as a prisoner?
(iii) If there was discrimination, was it justified?
There are two matters which are not in issue as they have now been accepted by the Secretary of State:
(i) That the subject of the dispute, i.e. the funeral payment, falls within the ambit of Article 8 and Article 1 Protocol 1 of the ECHR, and therefore is capable of falling within the non-discrimination provision of Article 14;
(ii) That Ms Stewart's position at the time as a "prisoner" is capable of being an "other status" within Article 14."
4. Was there direct discrimination?
5.Was there indirect discrimination?
6. Can the discrimination be justified?
"…[T]he Court would observe that being a convicted prisoner may be regarded as placing the individual in a distinct legal situation, which even though it may be imposed involuntarily and generally for a temporary period, is inextricably bound up with the individual's personal circumstances and existence, as may be said, variously, of those born out of wedlock or married. Prisoners' complaints do not therefore fall outside the scope of Article 14 on this ground. The legal status of a prisoner, is however, very relevant to the assessment of compliance with the other requirements of Article 14."
I do not consider that this reasoning could be further extended, as Ms Lieven suggested, to confer a "status" for Article 14 purposes on a sub-category of prisoners restricted to those not in receipt of qualifying benefits.
"[P]olicy concerned with social welfare payments must inevitably be something of a blunt instrument".
"Decisions on the allocation of public funds for such purposes are questions of social policy, not law. If justification is required, the considerations set out in the evidence of the Secretary of State, in summary that an amended scheme would be more complex and more costly to administer, are not irrational, and are well within the 'margin of appreciation' allowed by Strasbourg jurisprudence."
i) Funeral payments are in their nature likely to be one-off expenses. That being so, it would be administratively complicated and costly to establish a separate mechanism for means-testing benefits.
ii) Moving away from the requirement for a prior award of a means-tested qualifying benefit would be bound to have an impact on a wider group of potential beneficiaries. The change could not be confined to prisoners alone. This would require extensive and costly new administrative machinery.
iii) The fact that the state makes alternative provision for those who do not qualify for funeral payments is an important factor in considering whether the "bright line" eligibility rule has "some rational justification". It does not leave them without any assistance at all.
"Put another way, the primary justification advanced by the Secretary of State has nothing to do with prisoner status. If the justification advanced – administrative simplicity and cost – is not a good one, there would be ramifications for all the other groups who do not qualify for means-tested benefits, and all the other benefits listed in the Annex to Ms Munt's statement where eligibility depends on the prior award of a means-tested benefit."
Dame Janet Smith:
Lord Justice Rix: