UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CSIS_42_1996 (21 May 1997)


 


CSIS/42/96


The Office of Social Security and Child Support Commissioners

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER W M WALKER QC

Tribunal:
Tribunal Case No:

1. This adjudication officer's appeal succeeds, but not to the extent which he desired. I hold the decision of the social security appeal tribunal dated 13 October 1995 to be erroneous in point of law and accordingly set it aside. I remit the case to the tribunal for determination in light of the directions which follow.

2. This case came before me at a hearing together with the case on file CSIS/158/96. That was a claimant's appeal. He sought a hearing which I granted and then directed a hearing in this case and that both should be heard together because of the similarity of the issues involved. I also directed that certain of the documentation be made common to both cases for convenience. Also for convenience I took this as the leading case. At the hearing the appellant adjudication officer was represented by Mr William Neilson of the Office of the Solicitor in Scotland to the Department of Social Security. The representation of both claimants was provided, by arrangement, by Mr Oliver, of the Welfare Rights Representation Unit at Greenock. I am indebted to both for careful submissions.

3. The central issue in the case is one that has arisen before me and on which guidance already exists in the form of Commissioner's decisions. The subject matter is social fund funeral expenses and the question is whether certain costs or expenses arising from a vigil in a Roman Catholic church falls within, or without, the cost specified in regulation 7(3) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 or whether it can come under regulation 7(4)(iii) thereof.

4. I have set aside the tribunal decision in this case, which was favourable to the claimant, because the findings of fact are, in my judgment, insufficient to support that decision. Moreover the decision was not a properly executive one. I understand why it was made and sympathise with the tribunal's position as the matter was presented to them.

5. The tribunal decision was simply:

"That additional expenses arise which should be quantified and paid to the appellant".

The reasons explain that the additional expense arising from the vigil would be an extra expense arising under said regulation 7(4)(c)(iv) but because the costs thereof were not itemised the claimant was left to obtain further information and to submit it to the local office for payment. I understand from the claimant's solicitor that that amount has been quantified at £35.00. I am not entirely sure that the present evidence to support such a charge is sufficiently clear. Moreover, because other matters were canvassed in argument I have thought it preferable to send the case back for a further hearing. It is enough to explain why the tribunal decision has been set aside to say that there are no findings of fact upon what matter or matters were being held to have fallen within the said regulation 7(4)(c)(iv) as opposed to 7(3) nor as to what, if any, such items were, and how they were found to be, "a requirement of the religious faith of the deceased". Thus finding 4 refers to the custom of the Roman Catholic church which, in accordance with the authorities, would not be sufficient to demonstrate "a requirement" of the religious faith.

6. I turn now to the central legal issue involved. The adjudication officer's case at its most basic was that additional expenses arising under regulation 7(4)(c)(iii) were additional to those covered by regulation 7(3) and therefore they did not cover any enhancement of any of the latter which arose through religious requirements. Mr Neilson based that upon the decision of Mr Commissioner Rice in R(IS) 14/92 where he struck down the expenses occasioned by the faith requirement for a Jewish funeral to take place within 24 hours of death. The Commissioner held that additional expenses covered by sub-paragraph (4) are those and those only separate from the ones specified in the sub-paragraphs of sub-paragraph (3). (The Commissioner was dealing with an earlier version of the regulation and I have transposed the paragraph numbering mentioned in his decision in order to be consistent with the current numbers).

7. I note that the former regulation 7 commenced, as does the present, at sub-paragraph (1) by defining those who may claim - necessarily, of course, for the funeral of another. The former paragraph (2) then listed what were regarded as "essential expenses" and included some of the items now in paragraph (3) and some of those now in paragraph (4) but it did mean that within the one paragraph there were the following:

"(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 [effectively the claimant];

(e) undertakers' fee and gratuities, chaplains, organists 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;

[the remainder being matters now listed in paragraph (4) at (viii) and (vi)]".

8. That form of the regulation has been superseded by one whereby paragraph (2) provides that there is to be paid out of the social fund:

"....an amount sufficient to meet any of the costs which fall to be met or have been met by the claimant or his partner or a person acting on their behalf and which are specified in paragraphs (3) and (4)".

Then paragraph (3) bears to cover the funeral director's fees, or an equivalent, which is said in any case to:

"...include the cost of:

(a) the collection of the deceased within the United Kingdom and transporting to the funeral director's premises or to a place of rest over a total distance of up to 50 miles;

(b) a simple veneered coffin and plain robe;

(c) the care of the deceased prior to the funeral;

(d) transport by a vehicle for the coffin and bearers and one additional vehicle for a total distance of up to 50 miles; and

(e) necessary funeral's director's services and staff

but shall not exceed £500 in aggregate in any case".

There then follows at paragraph (4) provision for the funeral payment to include an amount "in addition to the costs specified in paragraph (3) sufficient to meet":

(a) in the case of an interment, the necessary costs of a new or reopened grave and of the interment; or

(b) in the case of a cremation - [there follow 3 particular costs including cremation fee and the medical references];

(c) in either case:

(i) the cost of necessary documentation;

(ii) the fee of a Minister of religion;

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

(iv) [there follow, further, separate items providing for an organist's fee, the cost of a floral tribute, reasonable expenses for a return journey within the United Kingdom for the person arranging the funeral and certain extra costs involved where transport within the United Kingdom in excess of 50 miles was necessary in order to reach the funeral director's premises or place of rest];

(ix) where the distance for which transport is provided and which is referred to in paragraph (3)(d) is exceeded, the reasonable costs of transport in excess of 50 miles; [and the list ends with provision for embalming costs in certain circumstances]".

9. In dealing with a case arising under the present regulations Mr Commissioner May QC, in decision CSIS/130/96, followed decision R(IS) 14/92. He was dealing with a similar case to the present about the cost of a vigil. After reference to R(IS) 14/92 he said, at paragraph 10:

"I am clear in my own mind that in this case if transport to and reception at church can properly be regarded as being occasioned by the religious faith of the deceased then any allowance of an expense in that connection must be regarded as described as "an enhancement cost" of what was provided for under regulation 7(3)(d) as opposed to an additional expense under regulation 7(4)(c)(iii). I agree that the two paragraphs of the regulations are mutually exclusive. I express no concluded view as to whether in this case the transport to the church was an enhanced cost being occasioned by the religious faith of the deceased. I go only as far as concluding that if the costs are connected to the religious faith of the deceased it is in the former category rather than the latter".

I note that that decision was reached without the benefit of argument at a hearing.

10. Mr Oliver, in a detailed examination of the regulation and in particular paragraphs (3) and (4), as they now stand, submitted that what had evolved was a separation out, at (3), of what he called the basics for a secular funeral. That was effectively the minimum to which everybody was entitled. In such a situation, of course, paragraph 4(c)(iii) would never arise - nor indeed would most of the other matters covered by that paragraph. His argument then suggested that paragraph (4) fell to be regarded as adding on to the basic secular funeral cost, those, so far as incurred, mentioned in the various heads themselves. His basic point came, quite simply, to this - it was only in the case of a religious element arising in a funeral that parts of paragraph (4) would ever arise - thus (c)(ii) the fee of a Minister of religion, (iii) additional expenses arising from requirements of a faith and (iv), an organist's fee. Upon that basis, he submitted, the transport provision at paragraph 3(d) was intended to cover the basic or universal transport for the coffin and bearers and one additional vehicle from the director's premises or place of rest to a standard or basic interment or cremation. But what was involved in this case, he argued, was the extra expense occasioned by the need to take the body first to the church for the vigil service and then to return on the following day to convey the coffin to the place of interment. Those were therefore not expenses covered by the basic transport provision and, as he figured in argument, the costs involved night well not even be directly connected within the sense of vehicle transport costs but rather be labour expenses caused through evening and additional work and the like. There was some support for that being so in this case in the papers.

11. Mr Neilson's response was simple and to the point. Paragraph (3)(d) covered the transport cost to the place of interment whether or not there was a deviation by a church and so it would cover a religious as well as a secular funeral. If, he concluded, there was an element of double journey and associated work involved on account of the vigil then that could not count unless the total distance had exceeded the 50 miles.

12. I have come to the view that the regulation has had separated and retained in paragraph (3) only what does appear to be that required for any secular funeral. In form it is to be covered by the funeral director's fee. I do not think that sight should be lost of the opening words of the paragraph in that regard, or of head (e) which includes within the "fee" "necessary funeral director's services and staff". But even a secular funeral must involve either an interment or a cremation. To that extent paragraph (4) must be always involved, at least qua (a) and (b). But anything thereunder must be separated, itemised and justified - eg under (b) necessary doctor's certificates outwith the fee. In a given case there may be further "extra-fee" costs. The format of the regulation suggests to me that, again, such, to be allowed, will require to be itemised and justified outwith the fee. Thus here the question arises whether there are expenses from the vigil which, subject to the cap, may be payable under (4)(c)(iii). The claimant, if she is to succeed in respect of vigil costs, will require some evidence indicating precisely what these are, how they arise, how they were assessed and how they are outwith the scope of the funeral director's fee. By that I mean that if the funeral director within his standard fee would be expected to include for the vigil then, at least so far as any extra transport is concerned there is nothing to be gained. But if in a vigil case the funeral director would normally make a specific charge over and above his fees - as Mr Oliver suggested in argument was so in this case to cover and late hours for those involved, then, if that can be quantified it may be allowed by the tribunal to the extent that they are beyond the "necessary services and staff". But I do not think that extra running costs as such of a vehicle or vehicles involved can be covered thereunder unless total distance involved can be demonstrated to be more than 50 miles in which case sub-paragraph (ix) would be the appropriate head. I conclude that Mr Rice's decision falls to be distinguished in part on account of the changes already rehearsed in the format and wording of the regulation.

13. I now turn to the question whether any such additional expenses can be held to arise from a requirement of the religious faith of the deceased, she being a Roman Catholic. That is because, unlike the situation in Mr Commissioner May's case, or even his later case of CSIS/134/96, the papers before me at the hearing - but, I understood, not before the tribunal at their hearing - included not only the correspondence from certain officers of the Roman Catholic Church in England and Wales, and indeed in Scotland, referred to in those earlier decisions, but also what is called the "order of Christian Funerals" as approved for use in the dioceses of England and Wales and Scotland and prepared by the Liturgy Office of the Bishop's Conference of England and Wales and which bears to be an English translation, revised and derived from documents confirmed by the Congregation for Divine Worship from an original Ordo Exseuiarum. It appears in the bundle at document 59 et seq. The decree of approval by the Congregation for Devine Worship appears at page 65 and, at least as I understand it, the rites set out have the approval of the Pope. For a reason which will appear, I do not think I have to go into what then follows. I am entirely satisfied that the vigil is one of three parts of the funeral rites as a whole. These are called, "The Vigil for the Deceased", "The Funeral Liturgy" and, thirdly, "the Rite of Committal". There is nothing in the document that I have been able to find to indicate that these are alternative although there is clearly room for local custom to make certain variations in what is actually performed during the rites. However, I do not think that it is for a secular judicial authority to intrude much into a jurisdiction of a religious authority. It is enough, I consider, to say that a fairly superficial look at the document has more than satisfied me that a vigil is a requirement of the Catholic faith.

14. I note that in CSIS/153/96, an appeal of more recent date, the adjudication officer has conceded the religious requirement point in light of such documents cited. In conclusion it may help to repeat that paragraph (4) opens "in addition to the costs specified in paragraph (3)". I have sought to draw a distinction between what might be regarded, as Mr Oliver submitted, the basic or normal transport and whether or not, as Mr Neilson put it, it was diverted to a church on the way and whether short or long up to 50 miles and other "extra" costs. But, in so far as there may be extra costs in respect of labour, or from the church about which I know nothing, these could in law and in my judgment come within regulation 7(4)(c)(iii). I have sought to show that even extra labour costs from attendance by the funeral director's staff could count because I do not think that they would be covered by paragraph (3)(e) which it is limited to the necessary (ie basic) services and staff. I derive some support for that from Mr Commissioner Rice's decision CSIS/14261/96 when he determined that, in considering paragraph 4(a), "necessary" in regard to costs fell to be construed strictly. I think, applying that to paragraph 3(e), that it then covers only the basic services and staff from the funeral director. If there is something extra which arises from a requirement of the religious faith of the deceased then that can as matter of law be covered by paragraph 4(iii).

15. For the reasons given above the case must be reconsidered by the tribunal, with some care and having regard to any appropriate evidence put before them.

Signed

W.M. Walker QC

Commissioner

21 May 1997