Northern Ireland - Social Security and Child Support Commissioners' Decisions

PC-v-Department for Social Development (SF) [2015] NICom 36

Decision No: C1/15-16(SF)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

SOCIAL FUND

 

 

Application by the claimant for

leave to appeal and appeal to a Social Security Commissioner

on a question of law from a tribunal's decision

dated 14 May 2014

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant’s application for leave to appeal from a tribunal sitting at Belfast on 14 May 2014.

 

2. An oral hearing of the application has been requested. However, I consider that the proceedings may properly be determined without a hearing.

 

3. For the reasons I give below, I grant leave to appeal and as each of the parties submits that the tribunal has erred in law, I set aside the decision of the appeal tribunal under Article 15(7) of the Social Security (NI) Order 1998 and I remit the appeal to a newly constituted tribunal for determination in accordance with the directions I have given.

 

REASONS

 

Background

 

4. The applicant submitted a claim for funeral expenses by telephone to the Department for Social Development (the Department) in respect of her late husband (the deceased). The deceased had moved out of the family home some three and a half years previously. On 5 November 2013 the Department disallowed the claim. The applicant appealed.

 

5. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone. The tribunal disallowed the appeal. The applicant requested a statement of reasons for the tribunal’s decision. This was issued on 12 August 2014. The applicant applied to the LQM for leave to appeal to the Social Security Commissioner. Leave to appeal was refused by a determination issued on 10 November 2014. On 4 December 2014 the applicant applied to a Social Security Commissioner for leave to appeal.

 

Grounds

 

6. The applicant submits that the tribunal has erred in law as:

 

(i)         the relevant legislation was unreasonable;

 

(ii)        the deceased’s partner accepted no responsibility for the funeral costs;

 

(iii)       the deceased’s mother and siblings were estranged from him at the time of death;

 

(iv)       the deceased’s children were not in receipt of a qualifying benefit;

 

(v)        at the time of the deceased’s death she was still his wife;

 

(vi)       at the time of his death she was still a close friend, despite the deceased’s alcoholism, and it was not unreasonable in the circumstances to pay his funeral costs.

 

7. The Department was invited to make observations on the grounds of application. Mr Crilly of Decision Making Services (DMS) replied on behalf of the Department. He submitted that the tribunal decision contained errors of law and he supported the application for leave to appeal.

 

Further background

 

8. The applicant was married to the deceased for 26 years. He suffered from alcoholism and left the family home some three and a half years prior to his death. The couple had two sons (aged 19 and 14 and both in full time education at the date of claim) who continued to live with their mother, the applicant, and who had no contact with the deceased. At the date of the death of the deceased (20 October 2013), the deceased’s mother was aged 87 and said to be suffering from dementia. The deceased has a brother and sister residing in England, neither of who had seen the deceased in recent years. The deceased was said to have resided with a Ms S...., but the nature of their relationship was uncertain.

 

The tribunal’s decision

 

9. The tribunal referred to the hierarchy of family members which is set out in the Social Fund Maternity and Funeral Expenses (General) Regulations (NI) 2005. The tribunal found that the applicant was not entitled to a funeral expenses payment as it was not considered reasonable for her to accept responsibility for the funeral as the deceased had a partner and immediate family members and close relatives.

 

The applicant’s submissions

 

10. The applicant submits that she is still the wife of the deceased and therefore that it was reasonable for her to take responsibility. She points to the health of the deceased’s mother and to his estrangement from his siblings.

 

The Department’s submissions

 

11. For the Department, Mr Crilly also submits that the tribunal has erred in law. He submits as follows:

 

41. “For the reasons outlined below, I respectfully submit that the tribunal erred in law in arriving at the conclusion that it did in relation to the applicant’s claim for a funeral payment.

 

42. I submit that the LQM outlined in the statement of reasons how a claim for a funeral payment by a close friend should be approached by a decision making authority. However, I further submit that it is not clear from statement of reasons if the applicant’s claim was disallowed because the deceased had a partner at the date of death or because there was an immediate family member whose presence served to disentitle the claimant.

 

43. I submit that the LQM was correct to state that regulation 7(8) creates a hierarchy with priority being attached first and foremost to the partner of the deceased. I further submit that the tribunal acknowledged there was a possibility that there was a partner in this instance but that it did not then go on to make a finding of fact as to whether there actually was one or not. I respectfully submit that the tribunal erred in law by failing to make such a finding.

 

44. Similar considerations apply to the issue of immediate family members in the form of the deceased’s mother and sons. The tribunal correctly determined that the sons could be excluded from further consideration. However, the tribunal also determined that it was not reasonable for the deceased’s mother to accept responsibility for the funeral expenses. I submit that this represented an error in law as the tribunal would only have been required to make such a finding in relation to reasonableness if the deceased’s mother had actually accepted responsibility for the funeral expenses under regulation 7(8)(d). This did not happen in this case. The record of proceedings also noted that there was a query concerning the deceased’s mother’s benefit situation whilst the statement of reasons merely outlined that her circumstances had not been clarified.

 

45. I submit that, in the absence of a partner, the tribunal should have made a finding of fact as to whether or not the applicant’s claim would have affected by the circumstances of the deceased’s mother in the context of a consideration of the first exclusory rule in regulation 8(1) of the Social Fund Regulations. I respectfully submit that the tribunal’s failure to do so represented an error in law.

 

46. The statement of reasons also noted that a claim by a close friend would not succeed in circumstances where there were close relatives who had equal contact with the deceased and who were not in receipt of a qualifying benefit. Again, whilst it may be the case that the tribunal believed that this was applicable in this instance in the absence of either a partner or an immediate family member accepting responsibility for the funeral expenses, I respectfully submit that it did not specifically make a finding of fact that this was actually the case.

 

47. Whilst I am submitting that the tribunal erred in this instance, I would also like to submit that it was not helped in its task by either the Department’s submission or the Departmental addendum dated 14.05.14.

 

48. If the Commissioner agrees with my submission that the tribunal erred in this instance and remits the case to a new tribunal, I respectfully submit that it may be helpful to outline the approach that I believe should be adopted by the new tribunal.

 

49. As noted in paragraph 43 of these observations, I submit that the new tribunal will be required to fully investigate the issue of a partner. If it finds as fact that there had been a partner at the date of death then the applicant’s claim would cease at this point. This is because the existence of a partner of the deceased will automatically result in the failure of a claim by a close friend.

 

50. If, on the other hand, the new tribunal finds that the deceased did not have a partner at the date of death, and in the absence of any of the immediate family members accepting responsibility for the funeral, I submit it will be required to go on to consider if it was reasonable for the applicant to accept responsibility for the funeral expenses. The new tribunal will also have to take into account the possible relevance of any immediate family members on the applicant’s claim through consideration of the first exclusory rule in regulation 8(1) of the Social Fund Regulations. I further submit that the new tribunal would be correct to find that the deceased’s sons’ status as immediate family members would fall to be disregarded in any consideration of the applicant’s claim for a funeral payment at this stage. This would be due to the fact that they are caught by the provisions in regulation 8(2). This is because, as the youngest son was 14 years of age at the time of his father’s death, he would fall within the excluded category for an immediate family member in regulation 8(2)(a). The eldest son was 19 years old and was in full-time education and so would be caught by the exclusion in regulation 8(2)(c).

 

51. If the new tribunal reaches this conclusion, I submit that it will then be obliged to go on to consider if the deceased’s mother, as an immediate family member, also falls within any of the exclusions in regulation 8(2). If it finds that she does then I submit that, as with the deceased’s sons, her status as an immediate family member could not serve to disentitle the applicant from a funeral payment.

 

52. If, however, the new tribunal finds that the deceased’s mother does not fall within any of the exclusions within regulation 8(2) then I submit that it will be obliged to determine if the mother meets the requirements of the first exclusory rule as contained in regulation 8(1)(a), (b) and (c). If it finds that she had not been in receipt of a qualifying benefit and she had not been estranged from the deceased at the date of death then the first exclusory test will apply to disentitle the applicant from a funeral payment. However, if the new tribunal either finds that the mother had been in receipt of a qualifying benefit or that she was estranged from the deceased at the date of death, then the first exclusory test cannot be applied to disallow the applicant’s claim.

 

53. I submit that the tribunal will only be able to determine if the first exclusory rule applies in relation to the deceased’s mother in this case by making a positive finding of fact in relation to her being in receipt of a qualifying benefit and, if not, a further finding in relation to the nature of her relationship with the deceased at the date of death; namely, was she or was she not estranged from him at this time?

 

54. I submit that if the new tribunal determines that the first exclusory rule does not apply in this case then the second exclusory rule will still have to be taken into consideration due to the existence of close relatives of the deceased. Under the second exclusory rule, the tribunal will have to consider the nature and extent of the contact between the claimant in her role as a close friend and the deceased as well as that between the close relatives and the deceased. Paragraph (7) of regulation 8 outlines that the test must be considered in terms of one or both of the close relatives having closer contact with the deceased than the applicant under sub-paragraph (a) or one or both of the close relatives having equally close contact with the deceased as the claimant under sub-paragraph (b) in circumstances where the close relative was not in receipt of a qualifying benefit.

 

55. In considering this test, I submit that the new tribunal will have to take into account the claimant’s statements that she had been in contact with the deceased, albeit on an infrequent basis. There is a statement in her letter of appeal against the decision dated 05.11.13 to the effect that she had tried to engage with the deceased several times after they had parted in April 2010. There is also the record of a telephone call on 31.10.13 included as Tab 4 in the appeal tribunal papers which refers to the applicant’s attempts to contact the deceased. I further submit that the new tribunal will be entitled to take into account the fact that the claimant and the deceased had been married for 28 years before finally parting in April 2010. Finally, I submit that the tribunal will be required to take these considerations into account along with the evidence in the papers that the deceased had had no contact whatsoever with his siblings in England from April 2010 up to and including the date of his death in order to make a finding as to whether or regulation 8(8)(a) or (b) had any application in this instance.

 

56. If, after considering all of the above, the tribunal proceeds to determine that either regulation 8(8)(a) or (b) applies in this instance then the applicant’s claim will fail as a result. If, however, it finds that neither of these provisions apply then I respectfully submit that there will be no grounds for disallowing the claim in this instance.”

 

Assessment

 

12. I consider that there is some force in the submissions made by Mr Crilly. Specifically, the findings and reasons of the tribunal are not entirely clear on the question of whether the tribunal judged that Ms S.... was a partner of the deceased. In addition, if considering the position of the deceased’s siblings, the tribunal has not made findings and explained how it considered that the contact of the siblings living in England was equally close to that of the applicant, when she is recorded as having made several attempts to communicate with the deceased and to try to get him to engage with his sons.

 

13. Each of the parties has made submissions to me to the effect that the decision of the appeal tribunal is erroneous in law. I consider that it is expedient in this case to make a determination under Article 15(7) of the Social Security (NI) Order 1998, setting aside the decision of the appeal tribunal and remitting the appeal for hearing by a newly constituted tribunal.

 

14. I direct the Department to prepare a new submission for the hearing before the new tribunal, having particular regard to Mr Crilly’s submissions in the present application.

 

 

(signed) O Stockman

 

Commissioner

 

 

 

23 July 2015