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[2002] UKSSCSC CIS_4769_2001 (26 September 2002)

This appeal, brought with my leave, fails. The decision of the Appeal Tribunal on 13 7 01 was not erroneous in point of law, as explained below.

I held an oral hearing at which Ramby de Mello and James Dixon of counsel represented the appellant and James Maurici of counsel represented the Secretary of State for Work and Pensions. Kevin McClure, who had written the Secretary of State's submissions, was also present. The appellant did not attend, and his representative before the tribunal, Mark Hemingway of Coventry Law Centre, was unable to do so because he was on a judicial training course. I am most grateful for the written and oral arguments which were addressed to me and which made the hearing an interesting day. I subsequently issued a direction for clarification of a further point, but both parties concurred in responding that it was not relevant to my decision. I was left in no doubt by the parties that whatever decision I reached would most probably be appealed, and I record that I would be willing to give leave for this if asked. Certain points were reserved for argument before a higher court.

What is in issue on this appeal is the effect, if any, of the Human Rights Act 1998 (HRA) on the interpretation of regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (SI No 481) ("the regulations"). The events here concerned (except the actual death, which was the day before) all took place after HRA came into effect on 2 10 00. The argument is that entitlement conditions discriminate against, in this case, Muslims of Pakistani origin settled in the UK whose traditions still regularly (but not invariably) expect deceased relatives to be returned to their place of origin for burial but who, because the regulations require burial to take place in the UK, cannot recover any (not merely any extra) funeral costs. I was therefore invited to disapply parts of the regulations, and/or to read amendments into them, so as to remove the alleged incompatibility with ECHR articles 8, 9 and 14. The primary legislation, it was submitted, did not impose, even though it clearly permitted, the incompatibility said to arise.

The legislation

As this is extensive, I have put it in an Appendix. The citations demonstrate the extreme care taken by legislators to curb in every direction the amount of public money that can be claimed by anyone, even in an area where people may be under considerable social, cultural, and in some cases religions pressure to do the right thing by their dead relatives or friends. The regulations have been heavily amended, one set of amendments being made as a result of the ECJ decision in O'Flynn v AO, Case C-237/94 [1996] All ER (EC) 541 that the regulations discriminated against EEA migrant workers, who might more probably than indigenous persons wish to return their relatives to their state of origin. The Social Fund Maternity and Funeral Expenses (General) Regulations 1997 (SI No 2538) thus amended regulation 7(1)(b) and added regulation 7(1A), but also added the "immediate family member" provisions in regulation 7(3), and tightened up regulation 7A to ensure that enhanced transport and other costs would not be covered.

HRA ss3 and 6(1) now require me, as a "public authority" under s6(3), so far as it is possible for me to do so, to read and give effect to the above primary and subordinate legislation in a way which is compatible with ECHR. The Convention provisions relied on are articles 8 and 9 (which Mr Maurici conceded for the Secretary of State are at least "engaged") and article 14. These too are in the Appendix. No argument was made on article 1, protocol 1, since a non-contributory benefit is at issue.

Factual history

The appellant himself was born and brought up in the UK. His wife was born in Pakistan and came to the UK in 1990 when she married him in a traditional arranged marriage. On 26 10 00 he claimed a funeral payment in respect of the death on 1 10 00 of his father-in-law Mr Kamal Din, who died in the UK where he had been ordinarily resident with his daughter and his son-in-law the appellant for several years. Mr Kamal Din had arrived in the UK as an asylum-seeker following political harassment in Pakistan; he did not secure asylum, but was granted a four-year period of exceptional leave to remain, which had not expired at the time of his death. He had either five or six sons and four daughters, all adults, still in Pakistan, where his mother and his wife also lived, although it emerged at a late stage that, contrary to the impression given by the earlier written and oral evidence, the wife had arrived in the UK a few days before his death. (This was the cause of my post-hearing direction, as I wondered whether she could have claimed as a "partner"; but I am satisfied that she could not.) The deceased was on good terms with all the family in Pakistan and kept in regular touch with them by telephone.

The appellant's evidence, given in one statement that was before the tribunal and another which is only before me, and in oral evidence to the tribunal, is that his and the deceased's family are all practising Sunni Muslims and that everyone felt the body should be returned to Pakistan for burial in the local kabiristan. This was both for reasons of tradition and for practical reasons involving ceremonial observances (extended prayers and readings from the Koran which, it is said, require a sufficient number of family members to perform them) and the traditional practice of sitting in the graveyard. The evidence was further that family disharmony, including disharmony between the appellant and his wife and mother-in-law, would have resulted if the body had been buried in the local Muslim graveyard in Coventry. Additionally, the deceased was a Pakistani national and had "always hoped to return there at some stage in the future" (the appellant's first statement) and had "expressed a wish, the day prior to his death, to be buried in Pakistan" (the appellant's later statement).

The body was taken by a local funeral director in a suitably-appointed Muslim coffin with a window in the lid to the local mosque, then to the appellant's address, then back to the mosque and then to the director's premises for preparation for the flight to Pakistan. The charge for these services was £665. Conveyance to Heathrow cost a further £140, and the air fare for the coffin was £230.50. Mr de Mello, by the time of the oral hearing, was confining himself to the first two items, though he reserved the right to argue for the air fare, and indeed the cost of burial in Pakistan, before a higher court. This meant that all I have had to deal with was, in effect, the costs of what happened in the UK

The funeral directors' bill addressed to the appellant has, I was told, been paid.

The appeal to the tribunal

The appellant's claim was rejected on 30 10 00 on the ground that the funeral had not taken place in the UK. He appealed to a tribunal, citing articles 8, 9 and 14. The comparator group chosen for discrimination was then "non-Muslims EEA nationals". An expert report was submitted from Dr Roger Ballard, a consultant anthropologist. As I read it, Islamic "formal expectations" are that the funeral should ideally take place the day after death, the burial should be in a specially consecrated burial-ground (kabiristan), and the body should be buried in cotton shrouds rather than a coffin. All male family members should participate in the prayers and rituals, both at the funeral and over the following weeks and months. Additionally there are "customary practices" favouring burial in the family kabiristan and mourners expect to have a last sight of the dead person's face. Even when migration has rendered some of these formal requirements and customs impossible, people still make a great effort to have their own bodies taken back for burial, and although properly-organised kabiristans are coming into being in the UK, these are used only where there are simply no resources available to fly the body back or so many members of the family are now settled here that almost everyone who would be expected to take part in the funeral rituals is also here. Most members of the older generation, in particular, are committed to the family kabiristan abroad. Most, though not all, Pakistani families in Britain form local burial committees, rotating credit associations to fund the flying of a body back to Pakistan when a member dies. It was "wholly understandable" that the appellant should have felt under a solemn obligation to return his father-in-law's body to Pakistan.

The Secretary of State made a further submission arguing that human rights were not engaged. The state was not required to subsidise family preferences under article 8, Dr Ballard's report showed that what was at issue here was not a "religious requirement", and anyway regulation 7A(4) precludes payment for any item or service which relates to a requirement of the deceased's religious faith. Further, the appellant would not be entitled to a funeral payment because under regulation 7(3) the appellant was a close relative and there were many other adult "immediate family members" in Pakistan none of whom was in receipt of a qualifying benefit (nor exempt under any of the exceptions in regulation 7(4)) and none of whom was estranged from the deceased at the date of his death.

Mr Hemingway at the hearing argued, on the basis of Thesaurus synonyms for "estranged" such as "parting, separation, split", that de facto geographical distance was enough, there was no need for the "connotation of emotional disharmony" attributed to the word in R(SB)2/87. The tribunal rejected this interpretation, preferring both the definition offered by the dictionary put forward by Mr Hemingway - "lose affection of, alienate" - and the Shorter Oxford Dictionary's "to alienate in feeling or affection". It decided the case against the appellant on regulation 7(3): there were immediate family members not in receipt of qualifying benefits and not estranged from the deceased, despite being separated from him geographically.

On the human rights points, which were regarded as obiter, the tribunal accepted that articles 8 and 9 were involved, though made no finding that they had been breached, observing that religious expectations were not, on the evidence, the same as religious requirements. It found that the regulations did indirectly discriminate against Sunni Muslims whose origins lay outside the UK, but also found that this discrimination was objectively justified because the disadvantage suffered was not excessive in relation to the legitimate aim of what has been termed "streamlined administration" (although that was not the expression used by the tribunal).

Mr Hemingway sought leave to appeal on the ground that by making the qualifying benefits named means-tested benefits, which are payable only to UK residents, the Secretary of State must have had in mind only "immediate family members" resident in the UK. He also disputed the finding that only religious expectations, not religious requirements, were involved. Leave to appeal was refused, and the application was renewed to me.

The appeal to me

I gave leave to appeal on the ground that the human rights and estrangement points were arguable, and asking for submissions on an appropriate comparator group under article 14 (since EEA nationals require to be or be connected with a "worker" and funerals are confined to another member state), whether discrimination, if any were found, would have an objective and reasonable justification, whether the state "interfered" with the exercise of human rights by refusing to subsidise it and how, if I found there were breaches, I should read the regulations consistently with HRA s3(1)(c).

The Secretary of State responded in the person of Mr McClure. He cited CIS/3400/00 confirming the tribunal's interpretation of "estranged", as between parent and child, as "connot[ing] either some significant element of disharmony, or at the very least an absence of any of the affection which one would expect between them". Mr McClure submitted that no human rights points arose on regulation 7(3), which applied to all claimants. This was enough to dispose of the present appeal, but Mr McClure went on to consider the human rights points raised, even though they might be obiter if I adopted his recommendation of upholding the tribunal.

He produced evidence culled from the Internet showing local authority provision in Leicester, Manchester, Brent and Coventry of dedicated Muslim burial areas and some special out-of-hours arrangements for speedy burials. He also produced a research paper Muslim Death in England and the Constraints Encountered, by Michele M Wolfe. She is less eminently qualified than Dr Ballard, and of course was not giving a report for purposes of this appeal. Her paper is nevertheless illuminating as to the importance of death and surrounding rituals for Muslims, and the arrangements which have been made in some areas for burial grounds, speedier paperwork and guidelines for handling the bodies of Muslims who die in hospital.

Mr McClure pointed out that the appellant is the only person whose human rights are relevant, as only he could make an application to the European Court of Human Rights (EctHR) under article 34 or bring proceedings under HRA s7(1)(a) as a "victim" of an unlawful act. I do not understand this to have been disputed, and I so hold. He made submissions on articles 8 and 9 which I need not repeat in view of Mr Maurici's concession that they are engaged. Even if article 14 did apply, the identification of "followers of the Muslim religion" as the group with whom the chosen comparator group of non-Muslim EC nationals is to be compared was not appropriate. It is clear from the evidence that not all Muslims, or even all Muslims of Pakistani origin, are returned there for burial.

The appellant tendered his second written statement, in which he said he had been aware of the Muslim burial facilities in Coventry, but chose to return his father-in-law to Pakistan so there would be enough family members available to perform the rituals, and also to satisfy the deceased's wish to be buried in Pakistan and the wishes of his own wife and his mother-in-law.

Mr de Mello provided a written submission. As well as human rights arguments, he raised the Race Relations Acts, Kruse v Johnson [1898] 2QB 91 (the provisions at issue here operate unequally, are manifestly unjust, discriminate on racial grounds, are oppressive and contravene international law), the common law principle of equality (R (Montana) v Home Secretary [2001] 1 WLR 552, and also ECHR article 3 because refusal of a funeral payment was inhuman or degrading treatment. Mr Maurici at the hearing was instructed to argue that these points went beyond my grant of leave, but I was not prepared to rule them out from argument. Mr de Mello himself indicated that he did not wish to pursue all of them, and I heard nothing further about article 3 nor about the air fare for the body to Pakistan. Mr Maurici produced a written submission for the hearing, to which Mr de Mello was able to respond.

The oral hearing

CIS/3150/99

Some slashing and burning of undergrowth is necessary before I turn to the kernel of this appeal. I had indicated when directing an oral hearing that I felt inclined to follow CIS/3150/99 in holding that before the coming into effect of HRA the funeral payments regulations were not, in a case involving a claimant who returned her husband to Pakistan for burial, ultra vires in UK domestic law. The enabling provisions in ss138 and 175 of the 1992 Act are extremely broad, and Mr Commissioner Howell held that they empower the Secretary of State, without irrationality, to prescribe conditions of entitlement which distinguish between different people or classes of people and to restrict for financial, public health or any other reasons he thinks fit the funerals for which public assistance is granted, including making a rule restricting payments to funerals taking place on UK soil, or excluding payment where other family members are not in receipt of qualifying benefits.

It was urged upon me that I should not follow CIS/3150/99 because it did not deal with the effect of ECHR rights pre-HRA nor consider the common law "principle of legality" or "principle of equality" discussed in R (Montana) v Home Secretary. Nor did it take account of R v Home Secretary, ex p Saleem [2001] 1 WLR 443 (particularly Roch LJ at page 450B-D), where the Court of Appeal declared ultra vires a rule which had the effect of depriving a claimant of her right of appeal, in contravention of article 6: it was unreasonable, it was wider than necessary, and it infringed the fundamental right of access to a tribunal to a greater extent than was required.

I am not persuaded. Mr Commissioner Howell heard two days of oral argument, including submissions on the common law principle and on Kruse v Johnson, and rejected them in his paragraph 12 in the light of the broadness of the legislative provisions. I share Mr Maurici's confidence in the likelihood that Ex p Saleem, which had been decided a year earlier, was also among the "large amount of material and authority" that was cited. I follow CIS/3150/99. If this was Mr Commissioner Howell's conclusion before HRA, then I see no reason at this level to burden my decision with further discussion of principles apart from HRA.

Race Relations Acts

In R v Secretary of State for Social Security, ex p Nessa, (1995) 7 Administrative LR 402 Auld J rejected the argument that the then equivalent provision to regulation 7(1)(b) infringed s1(1)(b) and s20 of the Race Relations Act 1976 because it amounted to discrimination in the provision of services. The adjudication officer who made the decision denying any funeral payment where the deceased was returned to Bangladesh for burial was saved by s41(1)(a) because he was acting "in pursuance of [an] enactment". The Secretary of State in making the regulation was not doing an act similar to one that could (s75(1)) be done by a private person, because he was exercising a lawmaking function. It would be anomalous if the adjudication officer were saved but the regulation maker was not. The decision was not appealed. However, Mr de Mello argued that amendments made to the 1976 Act by the Race Relations (Amendment) Act 2000 required me to adopt a different approach. I heard argument on this, but I need express no view on the 2000 Act as it did not receive the Royal Assent until 30 11 00, a month after the original decision in this case, and ss1-9 were even then only to be brought into force on such a day as the Secretary of State might appoint. The 2000 Act amendments can thus have no application to this case and I see no reason why I should not follow Nessa.

Human rights

The Secretary of State conceded for the purposes of the hearing that articles 8 and 9 were engaged, so as to give rise to arguments under article 14, though he contended that neither article was breached. I am content, also for the purposes of the hearing, to adopt the concession and can spare the reader any expression of my own views on these articles.

Article 14 prohibits discrimination, on a variety of grounds, in the enjoyment of Convention rights, as compared with people "placed in analogous situations", unless the unequal treatment is (a) justified by pursuit of a legitimate aim, and (b) not disproportionate to that aim. Discrimination may be direct (where, I take it, the aim involves one of the article 14 grounds) or indirect, where the aim is not, but the effects are, discriminatory.

Arguments for the appellant

Mr de Mello did not argue that the discrimination on which he here sought to rely was direct. His argument was that a group, which he identified as Muslims of Pakistani origin wanting to be buried abroad or the close relatives of such persons wanting to bury them abroad (given my finding that it is the appellant and not the deceased who must be a "victim", it can only be the latter group) are indirectly discriminated against by the regulations because they can get no help at all with any of the costs, even those incurred in the UK. The discrimination is on the ground of race, and perhaps of "status", an elastic concept. It occurs because of regulation 7(1)(b) (burial must be in the UK). It occurs under regulation 7(3) where "immediate family members" (parents or children) live outside the UK and will therefore not be receiving qualifying benefits: see the comment in Social Security: Legislation 2000 Vol II at page 1400 that ethnic minorities may be disadvantaged by this rule). The "not estranged" provision in regulation 7(3)(c) also disadvantages group members because it is taken as requiring emotional disharmony, not simply geographical distance. Regulation 7A(4), excluding services relating to a requirement of the deceased's religious faith is discriminatory where the claimant shares these religious requirements. Article 8 does not oblige the state to provide any financial help with funerals, but since the state does do so, it should not (despite the breadth of the enabling primary legislation) do so in a way that does in practice discriminate (Hooper v Secretary of State for Work and Pensions, CO/0865/2001, paragraph 26).

Mr de Mello's suggested comparator group of "persons placed in an analogous situation" was "UK denizens placed in analogous situations", ie, I take it, claiming a qualifying benefit and having a deceased relative's funeral to arrange. I asked him what a "denizen" was: dictionary definitions of the word include "inhabitant, occupant, resident of a place" and "person or species of animal or plant permanently established but not native in a place". The appellant himself is a UK national born, brought up and ordinarily resident here, and although his blood family is of Asian origin, it may well be permanently established here even though not native. He therefore looks at first sight like a "denizen" himself rather than a person to be compared with one. Mr de Mello told me the term is known in the field of discrimination law, but did not elaborate further. After considerable discussion, he settled on Muslims of Pakistani origin settled in the UK who do not happen to want to bury their relatives abroad. This is admittedly rather narrow; but given that, according to the expert evidence, an increasing number of Muslims settled here will become likely to be content to bury their relatives in suitable cemeteries here, no distinction based simply on race or colour or religion is going to be conclusive.

The regulations do place the appellant at a disadvantage compared with anyone willing to bury their relative in the UK. Mr de Mello prayed in aid some other matters. One was HRA s13, which enjoins me in determining any question to have particular regard to the importance of the right of a religious organisation (itself or its members collectively) to exercise freedom of thought, conscience and religion. He made this point but feebly, conceding that it probably did not apply, and I agree with him. Mr Maurici took me to the Parliamentary debates in Hansard which make clear that it is only when religious organisations are exercising "public" functions, functions that would otherwise be carried out by the State, such as marriage and the operation of religious schools, that s13 will bite. This merely confirms the view I would have formed. The "religious organisation" involved here is the Sunni branch of the Muslim religion in the UK, and I have seen no evidence of a threat to any of its relevant freedoms, or those of its members collectively, from the withholding of a funeral payment to the appellant.

Mr de Mello further relied on the Race Relations Act points which I have already rejected, and on the importance, as he saw it, of keeping in step with EU law as expounded by the ECJ.in O'Flynn. There an Irish former migrant worker was refused a payment for his son's funeral because the burial took place in the Irish Republic. The Advocate-General opined, and the ECJ held, that this constituted unjustified indirect discrimination in the enjoyment of a "social advantage". There was no need to show by statistical evidence (as might be the case with eg sex discrimination) that a substantially higher proportion of migrant workers than of nationals was affected; it was only necessary that the provision be "intrinsically liable" to affect migrant workers more, because of their probable continuing links with their states of origin. The UK's arguments based on the administrative difficulties of checking costs incurred abroad were rejected: Mr O'Flynn had incurred costs in the UK preparatory to sending his son's body abroad which were the same as would be incurred by someone burying their relative here, and the regulations did not cover the cost of transporting the body abroad.

The amendments made to regulation 7 following O'Flynn altered gave EEA nationals having the benefit of the principle of free movement between member states funeral payments, even though the actual burial or cremation takes place abroad. Sedley J in R v Home Secretary, ex p McQuillan [1995] 4 All ER 400 had said

Once it is accepted that the standards articulated in the [ECHR] are standards which both march with those of the common law and inform the jurisprudence of the European Union, it becomes unreal and potentially unjust to continue to develop English public law without reference to them.

In Wilson v First County Trust Ltd (No 2) [2002] QB 74, Laws LJ held that although pre-2 10 00 infringements of Convention rights do not give a separate cause of action under HRA s7(1), the court is under an obligation pursuant to s6(1) to act in a way which is compatible with Convention rights, in so far as it is possible. Both these citations were made to me via the report in Money Markets Ltd v London Stock Exchange [2002 1 WLR 1150, where the plaintiff failed to make them stick. But Mr de Mello relied on them in the context of HRA s11, which preserves a person's existing reliance on any other right or freedom conferred on him by UK law. He urged the undesirability of EU law (as in O'Flynn) and human rights law being out of step. He added that the ECtHR in McShane v UK (Application No 43290/98) The Times, 3 6 02 had indicated that there could be indirect discrimination where a general policy or measure had disproportionately prejudicial effects on a particular group.

On justification, Mr de Mello pointed out that although Auld J in Nessa rejected the Race Relations Act arguments because the regulations were made by a public authority, he did consider obiter the question of indirect discrimination. He found there was "an issue" which he was unable to decide without evidence that "the proportion of persons of the same racial group...as [the applicant] who can comply with [the condition] is considerably smaller than the proportion of persons not of that racial group who can comply with it": s1(1)(b) of the 1976 Act. But if he had been satisfied by evidence that there was disproportionate impact on a relevant group, he would not have found it justified either by the existence of Muslim burial grounds in the UK, by administrative difficulties in verifying claims for expenses incurred abroad, or by cost implications. The costs actually involved would be documentation, the cost of a coffin, and transport within the UK, and it was hard to see why these should not be equally and readily payable whether the burial took place here or abroad.

In his written submissions, Mr de Mello had argued that I could walk round at least some of the discriminatory parts of the regulations by drawing a distinction between the cost of "arrangements" for a funeral incurred in the UK and the burial itself abroad. This interpretation is excluded in UK domestic law - under a previous form of the regulations by R(SB)23/86 and under the present regulations by the definition in regulation 3(1) of "funeral" as a burial or cremation. But Mr de Mello suggested that reintroduction of this interpretation would provide a Convention-compatible reading.

Arguments for the Secretary of State

Mr Maurici first urged me to uphold the tribunal's decision based on the dictionary meaning of "estranged" under regulation 7(3)(c) as supported (albeit on a different set of regulations) by R(SB)2/87. CIS/3400/00 was a recent authority to the same effect, which adopted the requirement for "some significant element of disharmony, or at the very least an absence of any of the affection which one would expect between" (in that case) parent and child. In the present case, all the evidence was of family harmony, despite the distance by which the deceased had been separated from his family members.

The wording of the "immediate family member" test (newly raised on appeal to me) was clearly a matter of deliberate policy. It was not limited to family members in the UK (or EU), and since overseas residents will not be entitled to the qualifying benefits, their existence must rule out claims by UK residents who would otherwise qualify. If this were not so, then not only impoverished overseas family members but also extremely wealthy ones would be entitled to have an immediate family member's funeral expenses borne by the UK taxpayer. Funeral payments are a tightly-constrained safety net, and can also bear hardly on UK family members who are not in receipt of benefits but may be on low incomes and either unable or unwilling to bear the cost of a funeral.

Regulation 7(1)(b) can at best be only indirectly discriminatory on grounds of race, as it is on its face neutral. It can prevent funeral expenses being paid to a white Anglo-Saxon UK citizen who wishes to return a relative to anywhere outside the EEA, perhaps because part of the family has emigrated. There is no statistical evidence that the limitation bears more hardly on Muslims of Pakistani origin settled in the UK: Nessa at page 407E-409C. The ECJ's approach in O'Flynn (justified by the Advocate-General's stress on the importance of a broad brush approach when safeguarding the crucial principle of free movement of people) does not transpose to Strasbourg human rights jurisprudence.

It is not clear from that jurisprudence that indirect discrimination on grounds of race is covered by article 14. Some Commission and ECtHR cases have recognised that rules which are formally not discriminatory can be discriminatory in their practical application (see Human Rights Practice, 14.023 and cases there cited). But in Abdulaziz, Cabales and Balkandali v UK, (1985) 7 EHRR 471, despite finding discrimination on grounds of sex and birth, the ECtHR held that the 1980 Immigration Rules did not indirectly discriminate on grounds of race, rejecting the argument, which had appealed to a minority on the Commission, that they impacted on far more New Commonwealth and Pakistani would-be immigrants than white ones. This effect stemmed not from the content of the Rules but from the fact that among would-be immigrants some ethnic groups outnumbered others. The McShane case showed that even though statistically it appeared that the majority of people shot by the security forces were from the Northern Irish Catholic or nationalist community (and thus could be the victims of indirect discrimination), the statistics alone did not, in themselves, disclose a practice which could be classified as discriminatory within article 14 - and that was in a case involving the article 2 right to life. Certainly the ECJ's jurisprudence is "informed" by ECHR standards, as Sedley J recognised in McQuillan. But there is no ECtHR authority that the reverse applies.

If I nonetheless accepted there was indirect discrimination by disproportionate impact on the appellant as a member of the group of Muslims of Pakistani origin settled in the UK who want to bury their close relatives abroad (as compared with those who do not), Mr Maurici argued that it was objectively justified. Moses J in Hooper (a case of direct discrimination against widowers on the face of the Contributions and Benefits Act 1992) dealt with this at paragraphs 97-105, citing various other authorities. Courts in a democratic society should, he said, defer, on democratic grounds, to the considered opinion of Parliament. This is the "margin of appreciation". The degree of deference will depend on the subject-matter and the Convention right involved, but the spending of public funds (like the levying of taxes) is by special constitutional convention jealously safeguarded for Parliament, whose function it is in areas of social and economic policy to strike the necessary balance between equitable treatment and efficient use of necessarily limited resources. Inquiries by the courts as to how competing claims for money should be resolved are impossible. The ECtHR itself has recognised the need for a wide margin of appreciation in social policy. In Mellacher v Austria (1989) 12 EHRR 391 it stressed this need in relation to housing policy, where the national legislature is best placed to identify problems requiring control and to provide for them, unless its judgment of the general interest is "manifestly without reasonable foundation". The ECtHR also observed that a contested provision will not be unjustified simply because alternative solutions may possibly exist: so long as the margin of appreciation is not overstepped, it is not for the court "to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way". A general concordance of view and provision between the Contracting States would make for a narrower margin of appreciation; but here I observe that I have been provided with no evidence about what either other EU member states or other parties to the ECHR do to help with funeral expenses, if anything.

The very recent ECtHR decision in Willis v UK [2002] All ER (D) 24 disapproved Hooper in holding that very weighty reasons would be required to justify a difference in treatment based exclusively on sex. Mr Maurici submitted that this did not diminish my ability to rely on Hooper, because the UK had not made a submission on objective justification.

Auld J's views in Nessa on objective justification were obiter, and were directed to the tests under the Race Relations Act, so did not have regard to the human rights margin of appreciation. In any case, he was dealing with an earlier version of the regulations, as was the ECJ in O'Flynn. Simultaneously with the 17 11 97 amendments to comply with O'Flynn, SI 1997 No 2538 introduced the "non-estranged immediate family member" test, which applies to deprive EEA migrant workers of benefit where there are such immediate family members in another member state who, in the same way as overseas Pakistani Muslims and others, will not be in receipt of UK qualifying benefits. Regulation 7A , containing the detailed financial provisions for funeral payments, was also now further amended from 17 11 97 by further constricting subparagraphs (2)(e) and (f) and (3) by reference to the additional subparagraphs (4A) and (4B). Even though the previous express limitations to journeys "within the UK" had to go to accommodate O'Flynn, the effect of (4A) and (4B) is to cap the actual costs of the deceased and the responsible person travelling to an EEA member state by reference to what it would have cost to buy and utilise a new burial plot locally in the UK and, for the responsible person, to travel to and from a local burial or cremation.

If, despite these arguments, I did find the regulations incompatible with the appellant's article 14 rights and not objectively justified, I should take care to avoid a reading of them that would give those who send their deceased relations overseas a better deal than is given to UK/EEA funeral claimants.

The appellant's response

Mr de Mello's responded by urging me to find, without requiring statistics, that the regulations discriminate against the appellant's identifier group of Muslims of Pakistani origin settled in the UK wishing to bury their close relatives abroad and, following the obiter remarks in Nessa, that this discrimination is not objectively justified, whether by the existence of Muslim burial grounds in the UK, the administrative difficulty of verifying claims for overseas expenses, or cost implications. He also suggested that the regulation 7A(4) prohibition against covering costs relating only to a requirement of the deceased's religion should not bite if the appellant shares the same religion, alternatively that this provision should not be used to exclude, in this case, the cost of sending the body to Heathrow because this contained at least an element of transportation rather than simply religious requirement.

My conclusions

Mr de Mello no longer argued before me that the cost of flying the body to Pakistan should be covered. What I need to consider, therefore, is whether I (a) ought to, and (b) can, read the regulations so as to provide the same assistance for the appellant as for an EEA migrant worker. He said this would be the costs incurred here plus whatever might be left after the regulation 7A caps have been applied both to the undertaker's £665 and the journey to Heathrow. It is the exclusion of costs incurred in the UK under the regulations as drafted that strikes people as "unfair", and it could be argued (as found obiter in Nessa) that this would avoid the administrative verification of costs incurred abroad and not add significantly to the overall cost of the funeral payments scheme, because people would be entitled to them if they chose to bury their relations here.

I must first consider whether there is article 14 discrimination. Clearly there is no direct discrimination. The regulations on their face apply to all UK claimants where the person whose funeral is claimed for was ordinarily resident in the UK. It may be that because the present appellant can invoke race (or the wholly undefined "status") as an article 14 ground, he is in a position to claim indirect discrimination. But I cannot overlook Mr Maurici's argument that the ECtHR has been slow to find, as opposed to recognise the possibility of, indirect discrimination on grounds of race or even, in McShane, the right to life, and I note that both Hooper and Willis (where the EctHR paid a good deal less deference to the margin of appreciation) were dealing with direct discrimination in primary legislation. Auld J in Nessa was entirely obiter, as indeed was the tribunal in the present appeal. The ECJ may have been willing, in the interests of free movement of people, to proceed by the light of nature, but I am not convinced (even though I am not bound by ECtHR authority but need only take it into account) that I should be too ready to proceed without evidence. I have no figures to support the claim to indirect discrimination, and would not feel safe in finding it on the present state of the evidence.

However, I may be wrong, and it may be that the regulations are intrinsically liable to have a disproportionate impact on the appellant's identifier group. I therefore consider whether the indirect discrimination was objectively justified by the pursuit of a legitimate aim, and whether the effect was disproportionate to the aim pursued.

The regulations, as can be seen from their text quoted in the Appendix, constitute a tightly-constrained code for the expenditure of public money made by the Secretary of State under the sweeping enabling powers noted by Mr Commissioner Howell and approved by Parliament. Both counsel assured me that local authorities have a duty to dispose of bodies for which no-one takes responsibility. The regulations allow families to bury or cremate their dead themselves to avoid what is seen as the stigma of a "pauper's funeral"; but they now provide for only a very basic funeral, and to an extent which is unlikely to cover any claimant's true costs. They have become ever more tightly-constrained over time. The version current before the 1997 amendments made, in addition to the matters now covered, specific allowance for a simple veneered coffin and plain robe (earlier versions still had included the cost of an urn following a cremation), the care of the deceased prior to the funeral, specified transport and "necessary funeral director's services and staff", though there was an overall cap of £500. But there was separate provision for minister's fees, organist's fees, embalming in some cases, a contribution towards flowers and religious requirements. The current regulations expressly exclude religious requirements and lump everything else I have mentioned under "any other funeral expenses which shall not exceed £600 in any case".

The O'Flynn amendments relaxed the requirement for a UK funeral, but only for EEA migrant workers (not for other EEA nationals), and the relaxation was in many cases removed with the Secretary of State's and Parliament's other hands by the introduction in regulation 7(3) of the "immediate family member" test which ruled out a funeral payment wherever there were non-estranged parents or children not in receipt of a narrow range of non-exportable UK benefits. This undoubtedly disadvantages families of overseas origin, whether EEA or elsewhere. But it also disadvantages claimants with no foreign connections who have brothers or sisters even one of whom is not on benefit. This will be enough to rule out all help with a parent's funeral, even though the non-claimant may be in very low-paid work and ill-equipped to afford a funeral, or even to get a loan for the purpose. Where there is a contest between close relatives, a funeral payment will be ruled out where a close relative who had been in equally close contact with the deceased as the claimant has more capital than the claimant and that capital exceeds a small amount, even though that person is not on benefit (regulation 7(6)(c)). But the only test for immediate family members is simply the non-receipt of a qualifying benefit.

The whole history and structure of the regulations confirms that the objective justification to be put forward for any indirect discrimination is the saving of cost and (as the tribunal found) the saving of administrative complication. This has been the consistent policy: but I must nonetheless test it in the post-HRA climate. If it turns out to be Convention-incompatible, sound cost and administrative reasons will not necessarily save it. So I must ask, is it necessary in a democratic society? Is it within the margin of appreciation? Here I rely on the views of Moses J in Hooper at his paragraphs 95-107, including the citations from Mellacher v Austria in the ECtHR, as referred to in Mr Maurici's argument above. I set out in particular the views of the Court of Appeal as given by Lord Woolf in Poplar Housing and Regeneration Community Association v Donoghue [2001] 3 WLR 183 at page 202:

The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference...The correctness of this decision is more appropriate for Parliament than the courts and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention.

This was a case attacking the human rights compatibility of legislation which enabled a registered social landlord, performing public functions, to secure eviction simply by service of a notice to quit.

Similar views were expressed by Wilson J in R on the application of Reynolds v Secretary of State for Work and Pensions, CO/1912/01, on 7 3 02, in which Mr de Mello appeared as junior counsel for the applicant. This was an article 1 protocol 1/article 14 case where the judge held that income-based jobseekers allowance was not, but contribution-based jobseekers allowance was, within article 1 protocol 1. Ms Reynolds complained of discrimination on grounds of age where, being under 25, she was paid the allowance at a lower scale rate than if she had been 25 or more. Wilson J looked for objective justification. He set out the legislative history of the age distinction, and cited the ECtHR decision in James v UK (1986) 8 EHRR 123 where the leasehold enfranchisement legislation was challenged. The court said

...the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is "in the public interest" unless that judgment be manifestly without reasonable foundation.

Wilson J observed that "respect" meant not the respect which a foreign court should pay to national authorities but the respect which any court should pay to national legislatures in the areas of policy there identified. He cited the speech of Lord Hope of Craighead in R v DPP, ex p Kebilene [2000] 2 AC 326 at 381B-D, where he said

In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention...[T]he area in which these choices may arise is conveniently and appropriately described as "the discretionary area of judgment". It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.

Wilson J also referred to the Poplar case, and observed that he regarded it as unnecessary, and even inappropriate, for him to address the defendant's justification arguments with the degree of detail, including statistical detail, which he was asked to do. He "increasingly sensed the incongruity that such a debate was proceeding in court instead of in Parliament".

With these considerations in mind, I observe that the Secretary of State's justification of cost-saving as a legitimate aim is at first sight not as strong as it might be given Mr de Mello's modest plea that I should simply find a way of letting his client recover the costs he would have been entitled to if he had buried his father-in-law in the UK. However, I have been provided with no figures to inform me about what the actual additional costs might be even on this modest basis, and I remind myself of Lord Bridge's observation in Steele Ford and Newton v CPS (No 2) (reported as Holden & Co v CPS (No 2) [1994] 1 AC 22) as quoted by Moses J that

...still more important, in the present context [costs out of central funds], is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure.

I would therefore, even post-HRA, be hesitant to disregard cost implications without further information. Administrative simplification is a legitimate aim, and a challenge to the immediate family members rule for EEA nationals which is now under consideration before the commissioners submits that inquiries be made into the benefit systems of other EEA states to see whether an immediate family member is receiving one that is analogous to one of the UK qualifying benefits. The trouble and delay that benefit comparison (and if in EEA states, why not others if the regulations are to be read in a non-discriminatory way?) would cause is certainly a factor to be taken into account.

I conclude that cost-saving and administrative convenience are at least capable of being objective justifications. Do they nonetheless have an impact disproportionate to the aim? My difficulty here is again the shortage of statistical or other information which would enable me to assess this, given the ECtHR decisions quoted, including McShane.

And a very strong reason for my declining to accommodate Mr de Mello's client even to the limited extent he now seeks is the sheer difficulty of knowing how to read the regulations so as to effect this. Mr Maurici submitted that this difficulty was legitimately to be taken into account, and I agree with him. I did say at the hearing that if I decided there was article 14 discrimination that was not objectively justified, I would ask for further submissions on how I should read the regulations; but the written submissions of both parties do contain suggestions on how I might do this, and I can see for myself what the difficulties are. Rather, therefore, than call for a further round of submissions, I think it better to use the difficulties which clearly emerge as part of the conclusion I reach. If and when the case goes higher, the parties will be able to make more detailed submissions.

It is the immediate family member requirement which, as I see it, stands in the way of my reading the regulations in the way Mr de Mello would have me do. If I simply "read out" regulation 7(1)(b), so that a funeral anywhere will do, regulation 7(3) is still going to prevent payment in, I surmise, a large number of cases. Certainly it appears that the requirement is being used to deprive EEA nationals of any practical benefit from the O'Flynn amendments where there are such immediate family members. I really cannot interpret regulation 7(3) by inserting "in the UK", thus limiting the disqualification to UK immediate family members. What if the overseas members are rich? Is the UK taxpayer to subsidise a funeral for the father of an impoverished UK resident where another son is a US corporate executive? What if the children in Pakistan or Bangladesh are wealthy? As I have mentioned, there is no provision for taking their capital into account; and if I tried to read in provisions similar to those for competing close relatives, the administrative difficulties would be formidable.

Nor do I see how I can accord some different meaning to "estranged" in "overseas" cases to cover only those separated by geographical distance. As well as my colleagues' decisions already cited, in CIS/4498/02, decided on 12 6 02 and relating to a post-2 10 00 funeral payment claim, Mr Commissioner Henty held that a parent who was incapable through dementia of any meaningful communication with her children was not for that reason to be taken as estranged from her daughter, a pensioner resident in Australia, who had spent all her savings on coming to visit her mother and could not afford to pay for the funeral. She was an immediate family member, she was not estranged from her mother (though she too had been living at a great geographical distance), and the UK claimant, the deceased's son, was not entitled to a funeral payment. Human rights were not raised, perhaps because it was thought the sister could not bring herself within any of the article 14 groups.

I have considered whether I could adopt Mr de Mello's suggestion of making a distinction, to accord with human rights, between funeral "arrangements" and the funeral itself. This appears to be prohibited by the regulation 3(1) definition of "funeral", described in Social Security: Legislation 2001, Vol II at page 1445 as "mak[ing] it clear that it is the burial or cremation which is covered, rather than any accompanying or religious services"; but should I now read it in a different sense, so as to give a funeral payment to, among others, the appellant? I might so fly in the face of Parliament's intention (the new definition was introduced after questions had arisen on the previous wording, although they were settled in the same sense in R(SB)23/86); but I do not see how it would help him so long as the "non-estranged immediate family member" provisions remain in place.

I cannot possibly hold that the regulation 7A(4) exclusion of costs relating to the religious requirements of the deceased can simply be ignored because the appellant happens to lay claim to them too. The requirements of the deceased's religious faith have long figured in the funeral payments regulations, whether as something to be catered for to a limited extent or as something to be excluded. For this reason, I would in any event have to exclude the costs of the coffin's journey to Heathrow. This was primarily dictated by the deceased's religious requirements, even though there may also have been an article 8 element relating to the appellant's fear of family disharmony. It is quite impossible to make the apportionment Mr de Mello suggests between an element attributable to religious requirements and an element attributable to pure transportation and thus coming within other parts of regulation 7A. And in any event, regulation 7A(4A) would limit any payment to whatever it would have cost to bury the deceased in a new plot in the Muslim cemetery in Coventry.

I note with respect the Sedley J's dictum in McQuillan about systems marching in step; but as I have followed Mr Commissioner Howell in holding that there is here no common law principle involved (and he also held obiter, having heard extensive argument, that had HRA been in force at the time he was considering, it would not have led him to a different conclusion) and as the EU principle is confined to migrant workers, I do not find the exact synchronisation in the present case which would oblige me to find for the appellant by tampering with a self-sufficient set of regulations when such tampering, if it were to be effective, could have far-reaching and unconsidered results..

Parliament has taken a great deal of trouble, in framing and reframing the regulations, to limit the expenditure of public money which, at least where indirect discrimination is concerned, is on the authorities within its legitimate functions. This is an area of economic and social policy where a balance has to be struck between equitable treatment and the efficient use of necessarily limited resources. Article 8 expressly requires the striking of such a balance. Article 9 does not, but my view of the evidence is that it is article 8 considerations of family harmony which primarily motivated the appellant. I agree with the tribunal that the religious aspects were matters of expectation rather than necessity. The appellant has not fully persuaded me that there actually is indirect discrimination, and he has not persuaded me that if there is, it is not objectively justified. A rewriting of the regulations so as to provide the appellant with a funeral payment limited to UK costs (let alone to cover additional overseas costs, which might cause resentment among other claimants) would have to be wholesale. It can, I conclude, only be done by Parliament.

I find, therefore, that I can uphold the tribunal's decision based on its interpretation of "estranged" and the immediate family member provision, even though I have had to consider far more matters than the tribunal did. I might not go as far as the tribunal in forming the view that there might actually be article 14 discrimination, but that observation was obiter.

(signed on original) Christine Fellner

Commissioner

26 September 2002

APPENDIX

Regulation 7 of the Social Security Maternity and Funeral Expenses (General) Regulations 1987 as in force at all relevant times:

Entitlement

(1) Subject to the following provisions of this regulation...a social fund payment (referred to in these Regulations as a "funeral payment") to meet funeral expenses shall be made only where -

(a) the claimant or his partner (in this Part of these Regulations referred to as "the responsible person"), at the date of the claim for a funeral payment -

(i) has an award of income support [or other listed means-tested benefits];

(b) the funeral takes place -

(i) in a case where the responsible person is a person to whom paragraph 1A applies, in an EEA State [as defined in 1A];

(ii) in any other case, in the United Kingdom;

(c) the deceased was ordinarily resident in the United Kingdom at the date of his death;

(d) the claim is made within the prescribed time for claiming a funeral payment;

(e) the claimant or his partner accepts responsibility for those expenses and -

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

(iii) in a case where the deceased had no partner...the responsible person was, subject to paragraphs (3) and (4), an immediate family member of the deceased and it is reasonable for the responsible person to accept responsibility for those expenses;

(iv) in a case where the deceased had no partner and (ii) and (iii) above do not apply, the responsible person was, subject to paragraphs (3) and (4)...a close relative of the deceased...and it is reasonable for the responsible person to accept responsibility for those expenses

(1A) [Defines the persons to whom paragraph (1)(b)(i) applies as "workers", whether alive or dead, members of their families and persons having a right to reside in the United Kingdom, all by reference to European Council Regulations; it is not argued that the appellant was a person to whom paragraph 1A applied].

(2) For the purposes of paragraph (1)(e)(iii) and (iv), the deceased shall be treated as having no partner where the deceased had a partner at the date of death and -

(a) no claim for funeral expenses is made by the partner in respect of the death of the deceased; and

(b) that partner dies before the date upon which the deceased's funeral takes place.

(3) Subject to paragraph (4), the responsible person shall not be entitled to a funeral payment where he is an immediate family member [or] a close relative...of the deceased and -

(a) there are one or more immediate family members of the deceased;

(b) neither those immediate family members nor their partners have been awarded a benefit to which paragraph 1(a) refers; and

(c) any of the immediate family members to which sub-paragraph (b) above refers was not estranged from the deceased at the date of his death.

(4) Paragraph (3) shall not apply to disentitle the responsible person from a funeral payment where the immediate family member to whom that paragraph applies is -

[(za)-(d) define five types of person - minors, full-time students including mature students, members fully-maintained by religious orders, persons in custody and hospital in-patients, the two latter being persons who or whose partners were in receipt of a qualifying means-tested benefit immediately before their detention or treatment began.]

(5) In a case to which paragraph 1(e)(iii) or (iv) applies, 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.

(6) Except in a case where paragraph (7) applies, in a case where the deceased had one or more close relatives and the responsible person is a person to whom paragraph (1)(e)(iii) or (iv) applies, if on comparing the nature and extent of any 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 equally close contact with the deceased and neither that close relative nor his partner, if he has one, has been awarded a benefit to which paragraph 1(a) refers; or

(c) in equally close contact with the deceased and possesses, together with his partner, if he has one, more capital than the responsible person and his partner and that capital exceeds,

(i) where the close relative or his partner is aged 60 or over, £1,000; or

(ii) where the close relative and his partner, if he has one, are both aged under 60, £500,

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

(7) [disapplies the results of (6) where a better-qualified close relative is a minor and was the only close relative.]

Regulation 3(1) defines "funeral" as "a burial or cremation" and "immediate family member" as parent, son or daughter.

Regulation 7A (as relevant):

Amount of funeral payment

(1) Subject to paragraphs (4) and (5) [and provisions for income and capital deductions which are not here material], the amount of a funeral payment shall be 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 paragraph (2), inclusive of any available discount on those costs allowed by the funeral director or by any other person who arranges the funeral.

(2) The costs which may be met for the purposes of paragraph (1) are -

[(a) and (b) set out the alternative allowable costs for a burial or a cremation respectively];

[(c) covers the cost of obtaining documentation necessary to release assets of the deceased which may be deducted from the funeral payment under regulation 8];

(d) where the deceased died at home or away from home and it is necessary to transport the deceased within the United Kingdom in excess of 50 miles to the funeral director's premises or to the place of rest, the reasonable cost of transport in excess of 50 miles;

(e) where transport is provided by a vehicle for the coffin and bearers and by one additional vehicle, from the funeral director's premises or the place of rest to the funeral and -

(i) the distance travelled, in the case of a funeral which consists of a burial where no costs have been incurred under sub-paragraph (a)(i) above [new burial plot with exclusive right of burial], exceeds 50 miles; or

(ii) the distance travelled, in the case of any other funeral, necessarily exceeds 50 miles,

subject to paragraph (4A), the reasonable cost of the transport provided, other than the cost in respect of the first 50 miles of the distance travelled;

(f) subject to paragraph (4B), the necessary cost of one return journey for the responsible person, either for the purpose of making arrangements for, or for attendance at, the funeral;

(g) any other funeral expenses which shall not exceed £600 in any case.

(3) All references in paragraph (2)(d) and (e) to 50 miles shall be construed as applying to -

(a) in a case to which paragraph (2)(d) applies, the combined distance from the funeral director's premises or the deceased's place of rest to the place of death and of the return journey;

(b) in a case to which paragraph (2)(e) applies, the combined distance from the funeral director's premises or the deceased's place of rest to the funeral and of the return journey.

(4) The cost of items and services which may be met under paragraph (2)(a), (d) and (e) shall not be taken to include any element in the cost of those items and services which relates to a requirement of the deceased's religious faith.

(4A) Costs shall only be met pursuant to head (i) of sub-paragraph (e) of paragraph (2) to the extent that the cost incurred under that head, together with the costs incurred under paragraph (2)(a)(ii) [cemetery fees], does not exceed the costs which would have been incurred under paragraph (2)(a)(i) and (ii) and, where appropriate, (e)(ii) if it had been necessary to purchase a new burial plot for the deceased with an exclusive right of burial in that plot.

(4B) Costs shall only be met pursuant to sub-paragraph (f) of paragraph (2) to the extent that those costs do not exceed the costs which would have been incurred in respect of a return journey from the home of the responsible person to the location where the necessary costs of the burial or, as the case may be, cremation, would have been incurred pursuant to paragraph (2)(a) or, as the case may be, (b).

[(5) Provides for deductions and limitations where there has been a pre-paid funeral plan or any analogous arrangement.]

The regulations were made under ss138 and 175 of the Social Security Contributions and Benefits Act 1992. The former provides (as relevant to this appeal)

(1) Payments may be made out of the Social Fund...

(a) of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, ...funeral expenses;

(4) In this section "prescribed" means specified in or determined in accordance with regulations.

By s175

(1) ...regulations and orders under this Act shall be made by the Secretary of State

(2) Powers under this Act to make regulations, orders or schemes shall be exercisable by statutory instrument.

(3) ...any power under this Act to make regulations or an order may be exercised -

(a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case;

(b) so as to make, as respects the cases in relation to which it is exercised -

(i) the full provision to which the power extends, or any less provision (whether by way of exception or otherwise),

(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case or different provision as respects the same case or class of case for different purposes of this Act,

(iii) any such provision either unconditionally or subject to any specified condition.

The relevant ECHR articles are article 8:

Right to respect for family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

article 9:

Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

and article 14:

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 34, in the section dealing with the European Court of Human Rights, although not incorporated into UK law, has some relevance in determining whose human rights are involved. It reads

Individual applications

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.