UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CIS_8485_1995 (27 March 1996)

JMH/SH/7PRIVATE 

Commissioner's File: CIS/8485/1995

SOCIAL SECURITY ACT 1986

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER


 


1. My decision is that the decision of the SSAT was erroneous in point of law. I set it aside and remit the case for re-hearing in front of a differently constituted tribunal.

2. This is an appeal by the AO with the leave of the chairman from the decision of a SSAT dated 28.2.95.

3. The claimant was, at the material time, in receipt of housing benefit. Her mother died on 27.9.94 and was buried three days later. The mother had had three children. By her first husband she had the claimant a son, and, by her second, another son, who was accordingly a half-brother to the claimant. I refer to him as "the half-brother". The claimant said at (T16) that, "being the eldest, it was my responsibility to make all the arrangements having been told by [the undertakers] that in our circumstances we would get help and he deals with these things every day." Further, it would appear that at some time, though whether before or after the decision by the claimant to make the funeral arrangements herself I do not know, a booklet entitled "A Guide to the Social Fund (SB16)" was read by her, which misled her, since it merely stated that a claimant would be entitled to a funeral payment "if it is reasonable for you or your partner to take responsibility". She later contacted the freephone Adviceline who advised her she would be entitled to claim the funeral payment, apparently ignorant that the law had been changed as from 1.4.94. This apparently took place at the time when she decided to appeal against the AO's decision and was therefor later in time. However, there can, of course, be no question of an estoppel arising in favour of the claimant.

4. Regulation 7(1) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 provides for a funeral payment in certain circumstances. To qualify, a claimant has to satisfy conditions (a), (b), (c) and (d) therein set out. In this case, it is common ground that the claimant satisfies conditions (a), (c) and (d), and the dispute concerns whether or not she satisfies condition (b). That condition - so far as relevant for this case - provides as follows:-

" (b) (i) ...; or

(ii) where the responsible person ... was a close relative of the deceased, it is reasonable for the responsible person to accept responsibility for those costs and there is no other person who was equally or more closely related to the deceased whom on comparing that other person's income and capital with that of a responsible person and taking account of the nature and extent of that other person's contact with the deceased, it is reasonable to expect to meet those costs ..."

The whole of para (b) was new in 1994, the previous condition being very much less stringent.

5. Two days after the death, the claimant made a claim for a funeral payment. The estimated charges were given as £695, but the undertakers, in the end, rendered a bill to the claimant in the sum £1,105. The AO refused the claim. His decision was as follows:-

"The claimant is not entitled to a funeral payment. This is because there is a close relative who had more contacts with the deceased and whose circumstances made it more reasonable for them to take responsibility for the funeral accounts."

The reference to the other close relative is a reference to the half-brother. I would note that the full brother is on income support and it cannot be argued - and indeed it has not been even suggested - that it would be reasonable to expect him to meet the funeral costs.

6. The half-brother is in full-time employment but the relationship between him and the claimant is clearly very strained. He has flatly refused to meet the funeral expenses. Nevertheless he was as equally related to the mother as was the claimant, he was in work, and there is evidence that he had a considerable amount of contact with the mother. The tribunal found as facts:-

"The Home [in which the mother resided] reported that the half-brother visited regularly. The half-brother and [the claimant] had not got on well together. He was very nasty to [the claimant]. He also had some mental problems - he had been admitted to a mental hospital in the past. He drank. His behaviour, especially when on drink, was irrational and unpredictable. [The claimant] last spoke to him 5 years ago."

7. From the AO's refusal of the claim, the claimant appealed to the SSAT who allowed it. They gave their reasons as follows:-

"The evidence supports the view that [the claimant] was the responsible person and it was reasonable for her to accept responsibility for those costs. Although her half-brother is as closely related to the mother - we consider that the nature of and extent of the half-brother's contact with the deceased was such bearing in mind his unpredictable nature, that it was not reasonable to expect him to meet the costs."

8. Under para (b) of regulation 7(1), the claimant has, in fact, to satisfy two conditions. The first is that it was reasonable for her to accept responsibility. The tribunal held that it was, and I see no reason why their decision on this point can be criticised. The second condition is that there was "no other person who was equally or more closely related to the deceased whom on comparing that other person's income and capital with that of the claimant and taking account of the nature and extent of that other person's contact with the deceased, it is reasonable to expect to meet those costs". It is by reference to those considerations that the tribunal has to decide whether or not, in this case, the claimant should be entitled to a funeral payment.

9. However, it seems to me that the tribunal's decision is flawed in two respects:-

(i) The AO submits that there was no finding as to the half-brother's income of capital and without such a finding it is not possible to make any comparison between the respective incomes and capital of the half-brother and the claimant. I would accept that submission and would add that equally there was no finding as to the claimant's income and capital.

(ii) The AO submits that, in so far as the tribunal based their decision on the unpredictable nature of the half-brother, they were involving an extraneous consideration which is not provided for in the regulations. With a qualification which appears below I would accept this submission. What the tribunal has to consider, in deciding whether it was reasonable for the half-brother to meet the funeral costs, is "the nature and extent of [the half-brother's] contact with the deceased." In determining this, I can only expect the tribunal to adopt a broad brush, commonsense appraisal of these matters. The amount of time spent with the deceased is but one factor in determining the extent of the relationship. Further - and this is the qualification I have of the AO's submission - if the half-brother's unpredictable nature can be said to have harmed the relationship between him and the mother, that is a fact which would have to be taken into consideration in assessing the nature of his contact with his mother. The nature of contact is not to be judged simply by visits, letters etc but also by the quality of the contact itself.

10. In assessing his income and capital, any demands on the half brother have to be considered. The test is not just that, if his income and capital is greater, he should pay the costs. It is whether, on a comparison, having regard also to the nature and extent of contact with his mother, it is reasonable for him to do so. A person may be substantially better off and it still not be reasonable for him to pay the costs. The only evidence of the means of the half - brother is that as at 4.10.94 he was in full time employment with Rowntrees and was, apparently, single. It is not known how much he was paid, or whether he had any capital. By "capital" I understand to be meant per capital in the nature of savings and not, if he owned that, his house or car. It would not in my view be reasonable to expect that he should have to sell them. The relevant date for comparison is the date of the claim which, in this case, was 29.9.94. The state of the relationship between the half-brother and the claimant is irrelevant.

11. If the new tribunal finds for the claimant the undertaker's actual bill should be produced. They should have regard to regulation 7(2) and - if appropriate which I doubt - regulations 8 and 9. I would also add that press notices of the funeral arrangements do not fall within central expenses under the heading in regulation 7(2)(a) "the cost of any necessary documentation". I would commend R(SB) 46/84 for useful guidance.

12. The appeal is allowed.

(Signed) J.M. Henty

Commissioner

(Date) 27 March 1996