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[1992] UKSSCSC CIS_85_1991 (09 July 1992)

R(IS) 9/93

Mr. M. H. Johnson CIS/85/1991

Funeral payment - claimant taking over responsibility for payment of funeral expenses from another - whether the "responsible member"

The claimant, a separated married woman receiving income support since 1989, on 29 January 1990 claimed a payment to meet the estimated expenses of the funeral of her nephew who had died on 13 January 1990. The funeral was delayed. On 15 January 1990 the claimant's sister, the deceased's mother, instructed undertakers and accepted responsibility for the funeral costs. The claim for a funeral payment was rejected because the claimant was not the "responsible member".

On 23 February 1990 the claimant signed the undertaker's statement of funeral expenses and accepted responsibility for payment. On 21 March 1990 she made a second claim for a funeral payment. The funeral took place on 3 April 1990 and on 20 April 1990 the second claim was rejected.

The local tribunal confirmed the rejection on the grounds that since the claimant's sister had accepted responsibility for the funeral costs, the claimant could not be the "responsible member", and that the subsequent acceptance of responsibility by the claimant did not alter the fact that at the date of claim she was not the "responsible member".

Held that:

the tribunal's reasons for decision applied to the claim made on 29 January 1990 but could not apply to that made on 21 March 1990. The decision was erroneous in law and was set aside;

the claimant on 23 February 1990 undertook responsibility for her nephew's funeral, with the agreement of both her sister and the undertaker. There had thus been novation of the contract which had been made between the deceased's mother and the undertaker. The claimant therefore satisfied regulation 7(1)(b) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 and was entitled to a funeral payment. CSB/423/1989 followed;

the amount of the payment must be assessed by the adjudication officer.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that:

(a) the unanimous decision of the Hull social security appeal tribunal given on 8 August 1990 is erroneous in point of law and is accordingly set aside;

(b) the claimant is entitled to a funeral payment in an amount to be determined by the adjudication officer.

The claimant, to whom I shall refer as Mrs. T., appeals with leave of the Commissioner against the decision of the tribunal disallowing her appeal against the decision of the adjudication officer, issued on 24 April 1990, that she was not entitled to a funeral payment because she was "not deemed to be the responsible member" within the meaning of regulation 7(1)(b) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 [SI 1987 No. 481] ("the General Regulations").

I held an oral hearing of this appeal on 12 June 1992 when Mrs. T., who did not attend, was represented by Mr. Eddie Madden of the Welfare Rights Unit of the Hull Citizens Advice Bureau. The adjudication officer was represented by Mr. J. Heath of the Office of the Solicitor to the Departments of Health and Social Security.

The facts are not in dispute. Mrs. T. is a married woman, separated from her husband, who has been in receipt of income support since May 1989. On 13 January 1990 Mrs. T.'s nephew, M., died and on 15 January 1990 M.'s mother, Mrs. S., Mrs. T.'s sister, instructed undertakers and accepted responsibility for payment of the cost of M.'s funeral. The funeral was in fact delayed owing to a post mortem examination being carried out on M. and, on 29 January 1990 Mrs. T., having apparently sought advice, claimed a social fund payment in respect of the estimated funeral expenses. The claim was rejected on the basis that Mrs. T. was not the person responsible for the funeral. On 23 February 1990 Mrs. T. signed the undertakers' statement of funeral expenses, on which she accepted responsibility for their payment, and on 21 March 1990 she made a further claim saying that it was hoped the funeral would be during the following week; it in fact finally took place on 3 April 1990. On 20 April 1990 that claim too was rejected and Mrs. T. appealed.

Entitlement to payment for funeral expenses is dealt with in Part III of the General Regulations. Regulation 7, in so far as it applies in the instant case, provides that:

"7.- (1) ...

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 ... has, in respect of the date of the claim for funeral payment, been awarded ... income support, ... and

(b) the claimant ... 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

...

(2) ... the amount of a funeral payment shall be an amount sufficient to meet any of the following essential expenses which fall to be met by the responsible member:-

(a) the cost of any necessary documentation;

(b) the cost of an ordinary coffin;

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

(d) the reasonable cost of flowers from the responsible member;

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

(f) the cost of any additional expenses arising from a requirement of the religious faith of the deceased, not in excess of £75;

(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 reasonable travelling costs of one return journey within the United Kingdom by the responsible member in connection with either the arrangement of or attendance at the funeral.

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;

(b) the amount of any lump sum due to the responsible member of any other member of his family on the death of the deceased by virtue of any insurance policy, occupational pension scheme, or burial club or any analogous arrangement;

(c) the amount of any contribution which has been received by the responsible member or any other member of his family from a charity or a relative of his or of the deceased, but only to the extent that that amount or, if more than one contribution has been received, the aggregate of such amounts exceeds the cost of any funeral expenses other than those specified in regulation 7(2);

(d) [not relevant]"

It is not disputed that at the material time Mrs. T. was in receipt of income support, that the funeral took place in the United Kingdom and that the claim was made within the prescribed time, so that sub-paragraphs (a), (c) and (d) of regulation 7(1) were satisfied, and it is also, as I understand it, common ground that no assets from M.'s estate were available to Mrs. T. and that no payments were due to her or her family from any insurance policy, charity or otherwise (regulation 8) and that Mrs. T. did not have savings in excess of £500.00 (the limit as at the date of claim: regulation 9). Her claim was accordingly rejected on the basis that she did not satisfy regulation 7(l)(b); she was not deemed to be the "responsible member". That is the sole issue in this case.

On 8 August 1990 the tribunal upheld the adjudication officer's decision that Mrs. T. was not the responsible member and gave as their reasons for so doing:

"At the date of claim viz 31 January 1990 Mrs. [S.] the deceased's mother had a contract with Co-op Funeral Services to carry out the funeral and she had accepted responsibility for payment. Following regulation 7(1)(b) Maternity and Funeral Expenses Regulations, as Mrs. Smith had accepted the responsibility she was the 'responsible member'. The claimant cannot be held to be so.

Subsequently after the claimant was notified that her claim had been disallowed she entered into a contract with the Co-op Funeral Services on revised terms. This does not alter the fact that at the date of claim she was not the responsible member under the above regulation. She may have been at all times assisting Mrs. [S.] in the various arrangements but that does not make her the responsible member. SSSB/485/1982 is relevant in this case."

In the submission dated 3 May 1991 the adjudication officer now concerned with the case correctly points out that the tribunal refer only to the claim made on 29 and received on 31 January 1990 and appear to have overlooked the subsequent claim of 21 March 1990. Plainly their reasons for disallowing the appeal are therefore deficient and fail to comply with the requirements of regulation 25(2)(b) of the Social Security (Adjudication) Regulations 1986 [SI 1986 No. 2218]. The tribunal's decision is accordingly erroneous in point of law and I set it aside. I also agree that CSB/488/1982 (erroneously referred to by the tribunal as "CSSB/485/1982") is not relevant to the present case; it can clearly be distinguished on its facts and, in any event, that was a decision which turned upon the interpretation of regulation 8 of the Supplementary Benefit (Single Payments) Regulations 1980 [SI 1980 No. 985]. Regulation 8 of the Single Payments Regulations not only depended on a claimant taking responsibility for the cost of a funeral but also inter alia required that the deceased be a close relative or a member of the same household as the "responsible member" or a "member of the assessment unit", and that there was no other person who could more reasonably be expected to take responsibility; conditions which are notably absent from the General Regulations which apply to the instant appeal.

Very much more to the point is CSB/423/1989, which is also concerned with regulation 7 of the General Regulations and in fact dealt with a very similar situation, in which the Commissioner at paragraph 11 held that, where a person has "initially assumed responsibility for the funeral cost", another person, the claimant, "could only have accepted responsibility at a later time, if there had been novation", and went on to say that "if that were so, then, there was a new contract ... and it was necessary in law that there should be consideration".

Mr. Madden and Mr. Heath addressed me on the question of novation which, in essence, consists of a tripartite agreement under which the two original contracting parties, A and B, agree with a third party, C, to enter into a new contract whereby C becomes responsible for B's liability to A and A releases B from all liability. The consideration for that transaction, as Lord Selbourne said in Scarf v. Jardine (1881) 7 App Cas 345 at p. 351, "being the discharge of the old contract".

At paragraph 1315 of Chitty on Contracts (25th edition) it is said that:

"Novation. There is no doubt that with the consent of both contracting parties all contracts of any kind may be transferred, and the term 'novation' has been introduced from Roman law to describe this species of transfer. Novation takes place where the two contracting parties agree that a third shall stand in the relation of either of them to the other. There is a new contract and it is therefore essential that the consent of all parties shall be obtained: in this necessity for consent lies the essential difference between novation and assignment."

And at paragraph 1488:

"In particular, however, it [novation] denotes the rescission of one contract and the substitution of another in which the same principles apply as in any other case of rescission by subsequent agreement."

In the instant case there is ample evidence in the papers before me that Mrs. T. undertook responsibility for M.'s funeral and that she did so both with Mrs. S.'s and the undertakers' agreement. Plainly Mrs. S. had every reason to agree; she was divorced from M.'s father who apparently wanted to have nothing to do with the matter and she was very naturally in a distressed state following her son's death. I do not need to consider or speculate about the undertakers' motives in agreeing to Mrs. T. becoming liable for the funeral costs; it is sufficient that they did so, as is evidenced by their acceptance of her acknowledgement of liability on the form dated 23 February 1990 and their notice dated 2 October 1990 to Mrs. T. of their intention to take legal proceedings against her for recovery of the debt of £709.72 for which they apparently hold her solely liable.

In those circumstances I hold that Mrs. T. has fulfilled the requirements of regulation 7(1) of the General Regulations and is accordingly entitled to a payment in respect of M.'s funeral. I am, unfortunately, unable to assess the precise amount of such payment as I do not have the undertakers' itemised account. Their estimate was for £712 but contained an item for "press notices" which, it was conceded by Mr. Madden, is not an "essential expense" under regulation 7(2) and is not claimable. I do not know what, if any, non-recoverable expenses were included in the final account of £709.72 or, indeed, whether something had been paid on account and that sum merely represents the balance due. It follows that, while it is expedient that I should substitute my own decision for that of the tribunal, pursuant to section 23(7)(a) of the Social Security Administration Act 1992, I can do so only to the extent set out in paragraph 1(a) above. The amount due to Mrs. T. will have to be assessed by the adjudication officer in the light of regulation 7(2). In the event of any dispute arising the matter is to be referred to me for determination.

The claimant's appeal is allowed.

Date: 9 July 1992 (signed) Mr. M. H. Johnson

Commissioner