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[1997] UKSSCSC CIS_12783_1996 (21 February 1997)

R(IS) 3/98

Mrs. R. F. M. Heggs CIS/12783/1996

Funeral payment - estranged son of deceased - whether reasonable to accept responsibility having regard to the nature and extent of contact with the deceased

A man aged 55 who had not known of the whereabouts of his father or seen him for 24 years received a telephone call to tell him that his father had died. He was the only surviving relative and felt that he should deal with the funeral and sort out his father's flat. He claimed a social fund funeral payment. His father left nothing to pay for a funeral.

The adjudication officer decided that the claimant was not entitled to a payment for funeral expenses because it was not reasonable in the circumstances for the claimant to have accepted responsibility. Regulation 7(1A) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 provides "whether it is reasonable for a person to accept responsibility for meeting the expenses of a funeral shall be determined by the nature and extent of that person's contact with the deceased."

The social security appeal tribunal found as fact that the claimant was in receipt of income support and that he took responsibility for his father's funeral. They allowed his appeal on the basis that paragraph (1A) of regulation 7 had to be read in conjunction with paragraph (1B) so that it did not apply where there was only one close relative of the deceased. Paragraph (1B) provides for a comparison to be made between the nature and extent of the contact of close relatives. The adjudication officer appealed to the Commissioner.

Held, that:

the tribunal erred in its construction of paragraph (1A). Where the claimant was the responsible person and the only close relative of the deceased, he was nevertheless required to show that it was reasonable for him to accept responsibility for the funeral expenses (para. 8);

the nature and extent of the claimant's contact with the deceased is a question of fact and in having regard to the nature of the contact the strength of bond between blood relatives had to be given due weight (para. 10);

the time element is important in considering the extent of closeness of contact but 24 years estrangement did not erase the contact that the claimant had had with his father in the preceding 30 years (para. 11).

The Commissioner substituted her own decision in favour of the claimant.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 17 January 1996 is erroneous in point of law and accordingly I set it aside. As I consider it expedient to make further findings of fact and to give such decision as I consider appropriate in the light of them, I further decide that the claimant is entitled to a payment from the social fund for funeral expenses amounting to £736.

This is the adjudication officer's appeal against the decision of the social security appeal tribunal of 17 January 1996, leave having been granted by the tribunal chairman. I directed an oral hearing of the appeal. The claimant did not attend and was not represented. The adjudication officer was represented by Miss K. Phelan from the Solicitor's Office of the Departments of Health and Social Security.

At the material time the claimant, then aged 55, lived with his wife in local authority accommodation. He was in receipt of income support. On 26 July 1995 he claimed a funeral payment in respect of his late father ("the deceased") who died on 18 July 1995 and whose funeral was to take place on 27 July 1995. On the claim form he stated that he was the only surviving relative of the deceased and that he had:

"... not seen him for 29 yrs ... I did not know anything of his whereabouts until I got the telephone call ... 18 July saying he had died in hospital from a friend of his who had found my phone number in his flat ... I feel that it is the least I could do is go to his funeral and sort out his flat. I have been told he had nothing that was worth anything in his flat that could go towards his funeral ... so that is why I am asking you for help ..."

On 9 August 1995 the adjudication officer decided that the claimant was not entitled to a payment from the social fund for funeral expenses. This was because it was not reasonable in the circumstances for the claimant to have accepted responsibility for those expenses. The claimant appealed to the tribunal on the ground that "you allowed me £67 to go to the funeral. I have received the bill for my father and I only arranged the funeral because you told me that in all I would get the grant to pay for the funeral ..."

Neither the claimant nor the presenting officer attended the hearing of the appeal before the tribunal on 17 January 1996. In the event the tribunal allowed the appeal. As the funeral account was not before them they directed the adjudication officer to calculate the amount of the award in accordance with the relevant regulations with liberty to restore in case of dispute.

Section 138(1)(a) of the Social Security Contributions and Benefits Act 1992 provides that payments may be made out of the social fund to meet, in prescribed circumstances, funeral expenses. Regulation 7(1) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 ("the regulations") provides that such a payment shall be made only where, so far as relevant:

"(a) the claimant or the claimant's partner in respect of the date of the claim for a funeral payment-

(i) has been awarded income support ... or

(ii) ...

(b) the claimant or his partner (in this part of the these regulations referred to as "the responsible person") accepts responsibility for those expenses and-

(i) the responsible person was the partner of the deceased at the date of death; or

(ii) in a case where the deceased had no partner the responsible person was either-

(aa) a close relative of the deceased; or

(bb) a close friend of the deceased,

and it is reasonable for the responsible person to accept responsibility for those expenses; 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.

(1A) Whether it is reasonable for a person to accept responsibility for meeting the expenses of a funeral shall be determined by the nature and extent of that person's contact with the deceased.

(1B) In a case where the deceased had one or more close relatives and the responsible person is a person to whom paragraph (1)(b)(ii) applies, if on comparing the nature and extent of any such close relative's contact with the deceased and the nature and extent of the responsible person's contact with the deceased, any such close relative was -

(a) in closer contact with the deceased than the responsible person; or

(b) in equal close contact with the deceased and neither that close relative nor his partner, if he had one, have been awarded a benefit to which paragraph (1) (a) refers; or

(c) ...

the responsible person shall not be entitled to a funeral payment under these regulations in respect of those expenses."

It is not in dispute that the claimant was "a close relative" as defined in regulation 3(1) of the regulations. The tribunal found as fact that the claimant was in receipt of income support and that he was "his father's only son and there were no other relatives. He took the responsibility for his father's funeral". The tribunal allowed the appeal on the ground that when considering regulation 7(1)(b)(ii), paragraph (1A) had to be read in conjunction with paragraph (1B), with the result that the provision had no application where there was only one "close relative of the deceased". The tribunal concluded:

"that the adjudication officer had clearly misinterpreted that particular provision. It is only where there is another person who might more readily be accepted as being the person responsible that those provisions apply. In this case there is no other such person. [The claimant] was the only son and he took responsibility for the funeral expenses. We think that it was reasonable for him to do so because being the only son there was no one else to do it. In all the circumstances he does satisfy the provisions of paragraph 7 and a payment is appropriate".

Initially Miss Phelan submitted that as neither the adjudication officer nor the tribunal had sight of the funeral account, it was not known whether the claimant had accepted responsibility for those expenses. However, following the oral hearing the funeral account was placed before me and I requested further submissions. It is now conceded that the claimant was the responsible person.

Miss Phelan argued that the tribunal's decision was flawed because they had failed to appreciate that regulation 7(1) was "subject to paragraphs (1A) and (1B)." These provisions were separate and distinct and fell to be applied consecutively. She found support for her argument by referring me to paragraph (b)(ii) where "a close relative of the deceased" or "a close friend of the deceased" had to satisfy the additional condition that "it is reasonable for the responsible person to accept responsibility for those expenses". Paragraph (1A) provided that whether it was reasonable fell to be determined by reference to "the nature and extent of that person's contact with the deceased". The provisions were couched in the singular and there was nothing to indicate that they should only apply if there was more than one close relative or close friend of the deceased. Accordingly in the present case where the claimant was the responsible person and the only close relative of the deceased, he was required to show nevertheless that it was reasonable for him to accept responsibility for the funeral expenses, which issue was determined by reference to paragraph (1A). Paragraph (1B) imposed a separate test to be applied where any close relative had closer contact with the deceased than the responsible person in terms of regulation 7(1)(b)(ii). Paragraph (1B) had on application on the facts of the present case. I accept Miss Phelan's interpretation as correct.

The next question for determination was whether it was reasonable for the claimant to accept responsibility having regard to the nature and extent of his contact with the deceased. Miss Phelan submitted that it was not because the claimant had not seen the deceased for 24 years. In a written submission the claimant's solicitors submitted that it was. They gave the following reasons:

"6. ... the regulations do not specify the "nature and extent of the person's contact with the deceased" immediately prior to the deceased's death. The adjudication officer has overlooked the nature and extent of contact which his son had with his father. It should be remembered that [the claimant] was over 30 years of age before contact with his father was lost. The nature of this sort of contact cannot be underestimated when considering whether or not it is reasonable for [the claimant] to accept responsibility for his father's funeral.

We submit that the mere fact of the number of years without contact immediately prior to someone's death is insufficient to judge the nature and extent of that person's contact with the deceased".

I accept the above submission and reject Miss Phelan's submission on this issue. Close contact is a question of fact, the test involving having regard to the nature as well as the extent of the contact. The bond between blood relations is usually stronger than between those who are not, even though both categories fall within the definition of "close relative" in regulation 3(1). The claimant stated in his grounds of appeal to the tribunal that he "felt obliged to give permission for funeral to be put" in his name. In my view it is not unreasonable for a son to wish to pay his last respects to his father whatever the reasons for any estrangement there might have been.

Although the time element is important in considering the extent of the closeness, each case falls to be determined by reference to its own individual facts. Families drift apart for different reasons. In the present case I do not consider it fatal to the claimant's claim that he had not seen his father for 24 years. It does not automatically erase the contact they had in the preceding 30 years. It would be a harsh doctrine which would not allow an only surviving child to assume responsibility for his father's funeral as a final act of reconciliation. I cannot imagine that this was the intention of Parliament.

I have considered the detailed funeral account and I am satisfied that the items fall within the costs to be covered by a funeral payment under the provisions of regulations 7(3) and (4) of the regulations. The adjudication officer now concerned agrees with the calculation of the amount.

For the reasons stated above the tribunal's decision was erroneous in law. I give the decision set out in paragraph 1 as I am empowered by section 23(7)(a)(ii) of the Social Security Administration Act 1992.

The adjudication officer's appeal is dismissed.

Date: 21 February 1997 (signed) Mrs. R. F. M. Heggs

Commissioner