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[1992] UKSSCSC CIS_690_1991 (01 December 1992)

R(IS) 12/93

Mr. D. G. Rice CIS/690/1991

Funeral payment - arrears of attendance allowance due to the deceased paid to the claimant - whether "assets of the deceased"

The deceased died on 22 March. Arrears of attendance allowance of £1,384.60 were paid on 23 March to the claimant as next of kin. On 28 May the claimant applied for a funeral payment in respect of the burial of the deceased on 30 May. At the date of claim the claimant was receiving income support and housing benefit, had no capital, but had arrears of attendance allowance. The adjudication officer disallowed the claim for a funeral payment on the ground that the assets of the deceased which were available to the claimant extinguished the funeral payment. On appeal the tribunal upheld the adjudication officer's decision. The claimant appealed to the social security Commissioner.

Held that:

the arrears of attendance allowance were properly paid to the claimant as next of kin. The principles of the general law required him to use the arrears to discharge any debts of the estate, and the funeral expenses would be the first such debt. As the arrears were sufficient to meet the funeral expenses the need for a funeral payment did not arise (para. 5);

regulation 8(a) of the Maternity and Funeral Expenses (General) Regulations 1987 requires that assets of the deceased be deducted from any award; the arrears of attendance allowance exceeded the award; therefore, no payment could be made (para. 6);

funeral expenses are a first charge on a deceased's assets (para. 7).

Note: The fact of the arrears being attendance allowance is not significant. Arrears of any social security benefit would have the same effect.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 13 August 1991 is erroneous in point of law and accordingly I set it aside. As it is expedient that I give the decision the tribunal should have given, I further decide that the claimant is not entitled to a payment for funeral expenses.

This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 13 August 1991. I directed an oral hearing. At that hearing the claimant, who was present, was represented by Mr. David Forsdick of the Free Representation Unit, whilst the adjudication officer appeared by Mr. J. Heath of the Solicitor's Office of the Department of Social Security.

The facts of this case are simple and straightforward, nor do they appear to be in dispute. On 22 March 1991 the claimant's stepfather ("the deceased") died. On the next day arrears of attendance allowance in respect of the deceased were paid to the claimant. On 28 May 1991 the claimant applied for a funeral payment in respect of the deceased, who was in the event buried on 30 May 1991. At the date of claim the claimant, who was in receipt of income support and housing benefit, had no capital, but he was, of course, in possession of the arrears of attendance allowance amounting to £1,384.60. This had been paid to him by the Secretary of State as the next of kin.

Manifestly, the arrears of attendance allowance form a part of the deceased's estate. Accordingly, when the claimant sought a funeral payment pursuant to regulation 7(1)(a) of the Maternity and Funeral Expenses (General) Regulations 1987 [SI 1987 No. 481] (the claimant was in receipt of one of the qualifying benefits set out in that provision) not surprisingly, the adjudication officer invoked regulation 8(a) and disallowed the claim. Regulation 8(a) provides as follows:

"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."

It was open to the Secretary of State to pay the arrears of attendance allowance, due to the deceased, to the next of kin. Regulation 30 of the Social Security (Claims and Payments) Regulations 1987 provides as follows:

"30.— (1) On the death of a person who has made a claim for benefit, the Secretary of State may appoint such person as he thinks fit to proceed with the claim.

(2) ... any sum payable by way of benefit which is payable under an award on a claim proceeded with under paragraph (1) may be paid or distributed by the Secretary of State to or amongst persons over the age of 16 claiming as personal representatives, legatees, next-of-kin, or creditors of the deceased (or, where the deceased was illegitimate to or amongst other persons over the age of 16), ...; and-

(a) the receipt of any such person shall be a good discharge to the Secretary of State for any sums so paid; .."

Manifestly, receipt by the claimant as next of kin of the arrears of attendance allowance constituted receipt of assets belonging to the deceased's estate. The Secretary of State had to pay them somewhere, and as there was no intention to apply for probate (presumably there was no will) or letters of administration, he naturally passed the money to the next of kin. Of course, the claimant could not appropriate these arrears without first applying them in discharge of any expenses or debts of the estate. And, on general principles the claimant would have had to have used the arrears of attendance allowance first in payment of the deceased's funeral expenses. As the arrears were sufficient to discharge such expenses, the need for a funeral payment simply did not arise.

But, irrespective of the operation of the general law, where a claim is made under regulation 7 of the Maternity and Funeral Expenses (General) Regulations 1987, the position is expressly provided for by regulation 8(a). There has to be deducted from any award the amount of any assets of the deceased which are available. The arrears of attendance allowance were available and exceeded the funeral costs. Therefore there was no entitlement to any award. (compare CIS/291/1989 (to be reported as R(IS) 14/91)).

The tribunal came to the correct conclusion, but some of their reasoning is perhaps open to criticism. They appear to have attached importance to paragraph 7 of Schedule 10 to the Income Support (General) Regulations 1987, and have anguished over whether that particular provision, which called for arrears of certain benefits, including attendance allowance, to be disregarded for a period of 52 weeks, applied where such arrears were received, not by the person entitled, but by the next of kin. However, consideration of paragraph 7 of Schedule 10 was wholly irrelevant. It only applied in case of claims for income support, and the matter which was then before them was a claim for a funeral payment under a totally different set of regulations, namely the Maternity and Funeral Expenses (General) Regulations 1987. Further, the tribunal went on to consider the effect of the deceased's debts on the amount of his estate. Again, I do not think that was a relevant consideration. Funeral expenses are a first charge on a deceased's assets. As was said in R(SB) 18/84, with reference to regulation 8(3) of the Supplementary Benefit (Single Payments) Regulation 1981 (a similar provision to regulation 8 of the Maternity and Funeral Expenses (General) Regulations 1987):

"8. .... but I have reached the conclusion (contrary perhaps to the benefit officer's submission) that the value of the estate falls to be computed for the purposes of regulation 8(3)(a) before the deduction of the debts and liabilities payable thereout in the course of its administration, and subject only to the rights of incumbrancers, who can enforce their rights independently. I have reached that conclusion because I think that it is in conformity with the normal meaning of the word 'estate' in this context i.e. it comprises the totality of funds to be administered by the executor or administrator, out of which the various items have to be provided for (see section 34 of the Administration Act 1925 and, in Scotland section 14 of the Succession (Scotland) Act 1964).

....

This priority is of course much older than the Administration of Estates Act 1925 and authority for it can be found as far back as Coke's Institutes. In Scotland I understand that a similar priority is accorded on grounds of decency and humanity and that it is there still necessary to look to the institutional writers for authority. I suspect that the position is very similar on either side of the border."

I consider that the priority which applied to claims for a single payment for funeral expenses under the Supplementary Benefits (Single Payments) Regulations 1981 applies equally to the Maternity and Funeral Expenses (General) Regulations 1987.

Accordingly, in view of the somewhat unsatisfactory observations contained in the tribunal's reasons for their decision, I think the safer course is for me to set aside their 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 not entitled to a funeral payment.

Accordingly my decision is as set out in paragraph 1.

Date: 1 December 1992 (signed) Mr. D. G. Rice

Commissioner