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[1991] UKSSCSC CIS_291_1989 (20 February 1991)

R(IS) 14/91

Mr. J.G. Mitchell CIS/291/1989
20.2.91

Funeral payment – money in deceased's building society account dissipated by claimant – whether "available to [the claimant] (on application or otherwise)"

The claimant applied for a social fund payment to help with the funeral expenses in respect of her late mother. The adjudication officer decided that the claimant had sufficient funds to meet the funeral costs. The claimant appealed. The tribunal upheld the adjudication officer's decision on the grounds that there were sufficient funds available to the claimant, in terms of regulation 8(a) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987. The claimant appealed to a Social Security Commissioner.

Held that:

the adjudication officer is entitled to take account of evidence affecting the availability of assets of the deceased which comes to his notice before the date of his decision (para. 8);

the question of availability is a question of fact which the adjudication officer is entitled to decide on the evidence before him. If the sum has not actually been obtained he has to decide on the facts available whether the asset can properly be regarded as "available … on application" in terms of regulation 8(a) (para. 9);

once an asset is held to be available it can be taken into account as available on application notwithstanding that the claimant may have used a proportion of that asset for other purposes (para. 11).

The appeal was refused.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal dated 4 September 1989 is not erroneous in law.

This is an appeal by the claimant with leave on a question of law against the above mentioned tribunal decision. The appeal was dealt with at an oral hearing held before me in Edinburgh at which the claimant, who did not attend, was represented by Mr. P. Rostant, a barrister employed by Newcastle Citizens Advice Bureau. The adjudication officer was represented by Mr. D. Cassidy of the Office of the Solicitor to the Secretary of State for Scotland. I am obliged to both representatives for their helpful submissions.

The facts in this case are not in dispute. The claimant is a married lady living with her husband who is in receipt of income support. On 6 January 1989 the claimant made a claim for a social fund payment for funeral expenses in respect of the death of her mother on the same day. Her mother ("the deceased") died without leaving a will. The claimant stated that she was looking after the deceased's estate and submitted an estimate for the cost of the funeral stating that there was no money available from the estate. On the same date the claimant's daughter advised the local office of the Department of Social Security that the deceased had left sufficient funds to cover the cost of the funeral. It transpired that a sum of approximately £1,300 was held in an account in the name of the deceased with a building society. The account was closed on 12 January 1989. The claimant applied for and received the proceeds, most of which she then distributed or expended, leaving a balance of only some £200. An adjudication officer refused a social fund payment for funeral expenses and the claimant appealed to a social security appeal tribunal.

In terms of regulation 7 of the Social Fund Maternity and Funeral Expenses Regulations 1987 (SI 1987 No. 481) a payment can be made to meet funeral expenses, in the circumstances therein stated, to a person who has taken responsibility for the costs of the funeral. Under regulation 8 of those regulations there is to be deducted from such a payment the amount of any assets of the deceased which are "available to the responsible member (on application or otherwise) or any other member of his family without probate or letters of administration having been granted". Under the provisions of paragraph 1 of Schedule 7 to the Building Societies Act 1986 a building society may without probate or a grant of letters of administration or confirmation pay out a sum to a person claiming to be beneficially entitled, on the production of certain evidence. The provision is limited to cases where the depositor has died leaving a sum in the funds of the society not exceeding £5,000 or such higher sum as may be substituted by order. These and other provisions of statute and regulations so far as relevant to this case are set out in the appendix to this decision.

Having found the necessary facts the tribunal in this case unanimously held that the claimant was not entitled to receive a funeral payment, upon the view that the sum of money in the deceased's building society account was an asset of the deceased which was "available" to the claimant within the meaning of regulation 8(a) referred to above and which fell to be deducted from the award to which the claimant was otherwise entitled under regulation 7. The building society sum considerably exceeded the cost of the funeral. The tribunal took the view that on receipt of the claim the adjudication officer was entitled to make enquiries as to whether there were assets of the deceased which were available within the meaning of regulation 8(a). If it soon became clear that the asset was available the adjudication officer should so decide as he had done in this case. If however it was not soon clear that the asset was available the adjudication officer should decide such a claim in the claimant's favour. They considered therefore that availability was not simply to be considered at the date of claim, but even if it was, the tribunal considered that there was on the facts a sufficiently clear expectation of receipt of the funds at the date of claim which was vindicated by subsequent events within six days.

The question in the appeal before me accordingly was: were the tribunal entitled to hold on the facts before them that the asset in question was "available" within the meaning of regulation 8(a) and fell to be deducted? It was argued on behalf of the claimant that the tribunal were not so entitled and that their decision was erroneous in law because availability had to be judged at the date of claim and to be "available" something had to be in existence and to hand. In support of the first part of that argument Mr. Rostant drew attention to the provisions on entitlement to a payment of funeral expenses in regulation 7 which he said provided that entitlement should be judged at the date of claim. He drew a parallel with the provisions on entitlement for a single payment under regulation 4(1) of the Supplementary Benefit (Single Payments) Regulations 1981 (SI 1981 No. 1528) (under regulation 8 of which funeral payments were previously payable). He asserted that there was a need for certainty and that availability should be judged at the date of claim.

There are however a number of objections to the claimant's contentions. In the first place entitlement to a payment for funeral expenses under regulation 7(1) depends upon the satisfaction of four conditions, the fourth of which stipulates that the claim is to be made within the period specified in Schedule 4 to the Social Security (Claims and Payments) Regulations 1987, that is, a period of three months from the date of the funeral. There is accordingly considerable latitude as to the date when a claim may be made. Furthermore in the present case the claim was in fact made on the date of death and prior to the period specified. I do not on that account suggest that the claim was invalid but, as it preceded the funeral, entitlement could not be clearly affirmed at the date of claim alone. See also the condition in regulation 7(1)(c).

In any event however regulation 8 is not concerned with entitlement to a payment but with the subject of those deductions which are to be made from any award which the adjudication officer would otherwise make to an entitled claimant. There seems no reason in principle why he should not be entitled to take account of evidence affecting the availability of assets of the deceased coming to his notice prior to the date of his decision. He would clearly be entitled and indeed bound to take account of a funeral grant as defined in regulation 8(d) of which he was made aware prior to the date of his decision. As to the argument on the need for certainty it was pointed out by Mr. Cassidy that, in contrast to the position under the Single Payments Regulations, section 52(3) and (6) of the Social Security Act 1986 applied to funeral payments under the Social Fund Regulations the adjudication provisions of sections 97 to 104 of the Social Security Act 1975. It followed that the provisions for review in section 104 of the latter Act were available to correct a situation should an adjudication officer's decision on availability, legitimately reached at the time, later prove to have been mistaken. This point however appears to me to be equivocal in its effect for present purposes.

So far as the second part of the claimant's argument is concerned in my judgment the question of availability is a question of fact which an adjudication officer is entitled to decide, on the evidence before him when he makes his decision, on the basis of the ordinary meaning of the words "available" and "on application or otherwise". I bear in mind that the decision upon a claim raising such a question comes within the normal obligation upon an adjudication officer under section 99(1) of the Social Security Act 1975 to take a claim submitted to him into consideration and, so far as practicable, dispose of it within 14 days. If when an adjudication officer makes his decision in such a case the sum has not actually been obtained then he has to decide on the facts available before him whether the asset can properly be regarded as "available" "on application" as provided by regulation 8.

It is not difficult to envisage situations e.g. of family conflict with more than one next of kin of equal status where a building society might deem it appropriate to insist on receiving a formal title to intromit with the funds being produced by the applicant. Such circumstances may prevent a conclusion that the asset is available on application. In other straightforward cases an adjudication officer may in my judgment properly conclude that an asset of the present sort is available on application notwithstanding the existence of the discretion in the building society resulting from their being empowered, but not obliged, to release such sums under paragraph 1 of Schedule 7 to the Buildings Societies Act. If of course the sum has in fact been obtained on application, as in the present case, the adjudication officer is entitled to hold it available.

For these reasons I do not accept the contentions on behalf of the claimant and I consider that the tribunal were entitled to hold the asset in question to be available within the meaning of regulation 8(a). It remains to consider whether the tribunal were entitled once the asset had been shown to be available to take it into account as available on application notwithstanding that before the adjudication officer's decision was made the asset was largely dissipated by the claimant. Funeral expenses are of course a first charge upon a deceased person's estate under the law of both Scotland and England, as mentioned in reported decision R(SB) 18/84. Compare also section 32(4) of the Social Security Act 1986. The "availability" of such an asset once established for the purposes of regulation 8(a) of the Social Fund Regulations is not in my view to be defeated by any supervening improper disbursements by a claimant. I therefore conclude, for substantially the same reasons as the tribunal, that the asset in question in this case was available within the meaning of regulation 8(a) and fell to be taken into account and that accordingly the decision of the tribunal is not erroneous in law.

The appeal of the claimant is refused.

Date: 20 February 1991 (signed) Mr. J. G. Mitchell

Commissioner

APPENDIX

1. The Social Security Act 1986.

Section 32 of the Social Security Act 1986 contains the following material provisions:

"32.- (1) There shall be established a fund, to be known as the Social Fund.

(2) Payments may be made out of that fund, in accordance with this Part of this Act-

(a) of prescribed amounts … to meet … funeral expenses;

…

(4) Payments to meet funeral expenses may in all cases be recovered, as if they were funeral expenses, out of the estate of the deceased, and (subject to section 53 below) by no other means."

Section 52 contains the following material provisions:

"… (3) Subject to sub-sections (7) and (8) below [inapplicable] the following provisions of the Social Security Act 1975 shall have effect for the purposes of the benefits to which this sub-sections applies as they have effect for the purposes of benefit under that Act-

(a) sections 97 to 104 …

…

(6) Sub-section (3) above applies to the following benefits-

…

and any payments such as are mentioned in section 32(2)(a) … above."

2. The Social Fund Maternity and Funeral Expenses Regulations 1987.

Regulation 7, headed "Entitlement" contains the following material provisions:

"7.- (1) Subject to regulation 8 and Parts IV and V of these Regulations, a social fund payment to meet funeral expenses (referred to in these regulations as a "funeral payment") shall be made only where-

(a) the claimant or the claimant's partner has, in respect of the date of the claim for a funeral payment, been awarded income support, family credit, housing benefit or community charge benefits; and

(b) the claimant or, if he is a member of a family, one of his family takes responsibility for the costs of a funeral (in these Regulations referred to as the "responsible member"); and

(c) the funeral takes place in the United Kingdom; and

(d) the claim is made within the period specified for such a claim in regulation 19 of, and Schedule 4 to, the Social Security (Claims and Payments) Regulations 1987."

Regulation 8, headed "Deductions from an award of a funeral payment" contains the following material provisions:

"8. There shall be deducted from the amount of any award which would, but for this regulation, be made under regulation 7 the following amounts:-

(a) the amount of any assets of the deceased which are available to the responsible member (on application or otherwise) or any other member of his family without probate or letters of administration having been granted;

…

(d) the amount of any funeral grant, made out of public funds, in respect of the death of a person who was entitled to a war disablement pension."

3. The Building Societies Act 1986

Section 32 of the Building Societies Act 1986 provides as follows:

"32. The provisions of Schedule 7 to this Act relating to shareholders in and depositors with a building society shall have effect."

Schedule 7 contains the following material provisions:

"1.- (1) The provisions of this paragraph have effect where a member of, or depositor with, a building society dies, testate or intestate, domiciled in any part of the United Kingdom leaving a sum of money in the funds of the society not exceeding £5,000.

(2) If a person claiming to be beneficially entitled to the sum of money under the will or the applicable law of intestacy furnishes to the society-

(a) satisfactory evidence of the death, and

(b) a statutory declaration that the member or depositor has died and that the person claiming the amount is beneficially entitled under the will or the applicable law of intestacy to receive it,

the society may, without probate of the will or the grant of letters of administration or confirmation, as the case may be, pay the sum of money to that person.

…

(4) The Treasury may from time to time by order direct that this paragraph shall have effect as if for the reference in sub-paragraph (1) above to £5,000 there were substituted a reference to such higher amount as may be specified in the order."