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[1991] UKSSCSC CIS_83_1989 (03 January 1991)

R(IS) 11/91

Mr. D. G. Rice CIS/83/1989
3.1.91

Funeral payment – cost of transport – whether claimant's home where he lived before his death or where he originally came from

A claim for funeral expenses was made which included the cost of transporting the deceased from Cheltenham (England) to Wishaw (Scotland). Although the deceased had lived in Cheltenham with his wife and child for nine years he had originated from Wishaw and his widow arranged for him to be buried there.

The adjudication officer disallowed the expenses for transportation to Wishaw on the grounds that "the deceased's home" within the meaning of regulation 7(2)(g) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 had been in Cheltenham. The claimant appealed and the AO's decision was overturned. The appeal tribunal held that the deceased's home was a place more intimately connected with him and to which he may return. They awarded payment for the transportation costs which the local office paid.

The AO appealed to a social security Commissioner.

Held that:

there is no definition of the word "home" in the Social Fund Maternity and Funeral Expenses (Regulations) 1987. However, the Supplementary Benefit (Single Payment) Regulations 1981 which preceded them did define "home" and the meaning of the phrase the deceased's home (para. 5);

in the Supplementary Benefit (Single Payment) Regulations 1987 Regulation 8(1)(c) defined "the deceased's home" as meaning "the accommodation where the deceased normally lived prior to his death". Regulation 2(1) defined "home" as meaning "the accommodation normally occupied by the assessment unit as their home". These definitions could be held to apply in this case (para. 6);

the deceased had no "home" in Wishaw. Although he was brought up there and had relatives still living there he lived in Cheltenham. He could not therefore say Wishaw was his home as indicated in these regulations (para. 8).

The appeal was allowed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 15 February 1989 is erroneous in point of law, and accordingly I set it aside. As it is expedient that I give the decision the tribunal have given, I further decide that the claimant is entitled to a funeral payment of £496.08 from the social fund, not £712.25.

This is an appeal by the adjudication officer, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 15 February 1989. In view of the complexity of the matter, I directed an oral hearing. The claimant was not present or represented at that hearing, but the adjudication officer was represented by Mrs. H. E. Wheatley of the Solicitor's Office of the Departments of Health and Social Security.

The adjudication officer awarded a funeral payment of £496.08 in respect of the funeral of the claimant's deceased husband, which effectively took place in the town of Wishaw in Scotland. In particular, the adjudication officer determined that no award could be made for transporting the coffin to that town from Cheltenham, where the deceased had resided with his wife and child for the previous nine years. In the adjudication officer's view, "the deceased's home" within the meaning of regulation 7(2)(g) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 [SI 1987 No. 481] had been in Cheltenham and not in Wishaw. In due course, the claimant appealed to the tribunal, who by a majority reversed the decision of the adjudication officer. The tribunal decided that "home" was not necessarily limited to the town in which the deceased resided, but, if the facts so allowed, could be identified with some other place with which he was more intimately connected. In the present case, they decided that the claimant's stay in England was basically short term and that "home" meant Scotland. Accordingly, they awarded a further payment of £257 to cover the additional cost of the claimant's burial in Wishaw in Scotland.

Regulation 7(2), in so far as it is relevant to this appeal, reads as follows:

"7. (2) Subject to regulation 8 and Part IV of these Regulations [not relevant], the amount of a funeral payment shall be an amount sufficient to meet any of the following essential expenses which fall to be made by the responsible person: -

(a) .....

(b) .....

(c) the cost of transport for the coffin and bearers and one additional car;

(d) .....

(e) undertaker's fees and gratuities, chaplain's, organist's and cemetery or crematorium fees for a simple funeral;

(f) .....

(g) where the death occurred away from the deceased's home, the costs of transporting the body within the United Kingdom to that home or to the undertaker's premises or to a chapel of rest; and

(h) ….."

The crucial question is what is meant by the word "home" within sub-paragraph (g). The definition contained in the Shorter Oxford English Dictionary shows that it is possible to look at the word from two different angles. For it defines "home" as meaning not only:

"... the dwelling in which one habitually lives ..."

but also as:

"a place, region or state ... in which one's affections centre ... one's own... native land ...".

Indeed, the practice is only too well known of expatriates, living in say India or Africa, still referring to this country as "home" notwithstanding that they may have been abroad 30 or 40 years. However, the word "home" has to be construed in this instance in the context in which it appears in the regulation. Unfortunately, no definition is contained in the Social Fund Maternity and Funeral Expenses (General) Regulations 1987. However, regulation 7(2)(g), in substance replaces regulation 8(2)(g) of the Supplementary Benefit (Single Payments) Regulations 1981. Moreover, regulation 8(1)(c) of the latter regulations defined the phrase "the deceased's home" as meaning:

"... the accommodation where the deceased normally lived prior to his death
..."

Further, regulation 2(1) of those regulations defined "home" as meaning:

".. the accommodation ... normally occupied by the assessment unit . . . as their home..."

Now, in my judgment, the meaning given to the word "home" in the earlier legislation can colour its meaning in any subsequent legislation which takes its place. As was said by Lord Shaw of Dunfermline, giving the judgment of the Privy Council in Lennon v. Gibson and Howes Ltd [1919] AC 709 at 714:

"Where legislation has given words a statutory definition in one statute and has used the same words in a similar connection in a later statute dealing with the same subject matter it may be presumed in the absence of any context indicating a contrary intention that the same meaning attaches to the words in the later as is given to them in the earlier statute."

Accordingly, in my view, it is reasonable, in the absence of any indication to the contrary, to construe the word "home" as "the accommodation where the deceased normally lived prior to his death". As the claimant had lived at 76 Beaumont Road, Cheltenham for the nine years immediately preceding his death, manifestly that was the accommodation where he normally lived. Accordingly, that was his "home" within regulation 7(2)(g). It follows that the adjudication officer was correct to award only £496.08, and the tribunal were wrong to allow a further £257 to cover the additional cost of the funeral in Scotland.

Some further support for the above view can be derived from the combined effect of sections 20, 32 and 84 of the Social Security Act 1986, and regulation 2(1) of the Income Support (General) Regulations 1987 [SI 1987 No. 1967] and regulation 1(2) of the Social Fund Cold Weather Payments (General) Regulations 1988 [SI 1988 No.1724]. Section 84 of the Act defines the word "dwelling" as "any residential accommodation...". This meaning is carried forward via section 20 of the Act to the definition of "dwelling occupied as the home" in regulation 2(1) of the Income Support Regulations. And the definition of "dwelling" contained in section 84, when read into the definition of "dwelling occupied as the home" in paragraph 2(1), has the effect of defining the latter expression as "the residential accommodation ... normally occupied by the claimant ...". Similarly, via the operation of section 32 "home" in regulation 1(2) of the Social Fund Cold Weather Payments (General) Regulations 1988 is in effect defined as:

"the residential accommodation ... normally occupied by the claimant".

The reference to the normal occupancy of the dwelling or residential accommodation makes it perfectly clear that, as far as those two sets of regulations are concerned, the deceased's home would undoubtedly be his residence in Cheltenham. Those two sets of regulations are, of course, different from the Social Fund Maternity and Funeral Expenses (General) Regulations 1987, with which I am strictly concerned. But the interpretation of "home" adopted in the other regulations helps to colour the interpretation to be given to the word when used in another part of the current Social Security Legislation.

But what constitutes "home" in regulation 7(2)(g) can, in my judgment, be arrived at by another and simpler route. The question at issue is not one of the country of domicile. In fact it is not in dispute in this case that the deceased was domiciled in Scotland. But the country of domicile has nothing to do with the issue. Although it so happens in the present case that the deceased died in England whilst being domiciled in Scotland, exactly the same problem would have occurred if the deceased had not been domiciled in Scotland but had instead, deep roots in another town in England e.g. Newcastle. For the claimant's case was that the home of the deceased was not in a country, but in a specific town, namely Wishaw. However, in my judgment, the issue was not what was the deceased's home town, but what was his home. On the evidence, it would seem that the claimant had no home in Wishaw. Admittedly, he had been brought up there, had relatives still living there, and might well one day return there. However, at the date of death, he had no actual home there. His only home was in Cheltenham. Difficult cases, of course, could arise where a person has a home in one town and, whilst retaining it, moves, possibly for work, to another town, and in order to undertake that work takes up residence there. In that instance there might be some difficulty in determining which was his real home. However, that does not arise in the present case. His only home was in Cheltenham. It follows that there was only entitlement to the cost of a funeral in Cheltenham.

I do not consider that the claimant can derive any advantage from regulation 7(2)(c) or (e). As regards the former sub-paragraph, the cost of transport for the coffin and bearers and one additional car must necessarily arise as an integral part of the event of burial or cremation and not from any preparatory activity. The definition of "funeral" in regulation 3(1) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 makes it clear that the funeral is confined to "a burial or a cremation".

As regards regulation 7(2)(e), it is clear that the fees there referred to are to relate to "a simple funeral". In my judgment, the amount of transportation costs in relation to the overall costs of the deceased's funeral, the amount of time and distance involved, and the fact that two different firms of undertakers had to be employed, all show that the cost of moving the deceased from Cheltenham to Scotland was not commensurate with the term "simple" as envisaged by regulation 7(2)(e). Accordingly, it is not open to the claimant to seek to recover the cost by resort to that particular statutory provision.

It follows from what has been said above that I must set aside the tribunal's decision as being erroneous in point of law. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision. For the reasons given above, the claimant is entitled to a payment of only £496.08.

Before leaving this case, I should say that I understand that the claimant was, after the decision of the tribunal, awarded and paid the extra sum of £257. She has since written a letter displaying a very public-spirited and commendable attitude, in which she offers to make repayment of the £257. She states that she feels obliged to make that repayment, because she has now decided that it is in her own best interests and also those of her 15 year old daughter, who has lived most of her life in Cheltenham and made friends there, to stay where she is, and not to return to Scotland. However, notwithstanding this offer on the part of the claimant, I must point out that the Department elected to make the additional payment before awaiting the outcome of this appeal, and there can be no question of recovery pursuant to regulation 53 of the Social Security Act 1986. Moreover, I understand the Secretary of State is in any event, not interested in recovery of the overpayment. The appeal has been pursued merely to obtain an authoritative ruling on the meaning of "home" for the purposes for future decisions in similar cases.

My decision is as set out in paragraph 1.

Date: 3 January 1991 (signed) Mr. D. G. Rice

Commissioner