UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CIS_2607_2003 (28 November 2003)

 


CIS/2651/2003

CIS/2607/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. (1) My decision on the appeal on file CIS/2651/2003 is that the decision of the Income Support Appeal Tribunal dated 14 March 2003 on Case No. U/42/043/2003/00081 is not erroneous in law.

(2) My decision on the appeal on file CIS/2607/2003 is that the decision of the Income Support Appeal Tribunal dated 7 March 2003 on Case No. U/42/043/2002/00557 is not erroneous in law.

2. (1) On file CIS/2651/2003 the claimant appeals, with the leave of a legally qualified panel member, against the tribunal's decision that the claimant is entitled to a funeral payment from the Social Fund of £1,066, the payment to include an amount of £80 in terms of regulation7A(2)(f) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 in respect of the necessary cost of one return journey made on account of the funeral.

(2) On file CIS/2607/2003 the claimant appeals, with the leave of a legally qualified panel member of the Appeals Service, against the tribunal's decision that the claimant is entitled to a funeral payment of £810 made up of cremation fees of £190, the necessary cost of £20 of a return journey to London and £600 in terms of regulation 7A(2)(g) of the Social Fund Maternity Funeral Expenses (General) Regulations 1987 in respect of funeral expenses not otherwise specified in that regulation.

3. The issue raised in both appeals is whether or not the payment authorised by regulation 7A(2)(b)(i) of the General Regulations includes the cost of a coffin. Regulation 7A specifies the amounts which are to be included in a funeral payment. Insofar as relevant to the appeals it is in the following terms:-

"(1) Subject to paragraphs (4) and (5), regulation 8 and Part IV of these Regulations, the amount of the 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 on 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) except where sub-paragraph (b) applies, in the case of a burial –

(i) the necessary costs of purchasing a new burial plot for the deceased, together with an exclusive right of burial in that plot;

(ii) the fees levied in respect of a burial by the authority or person responsible for the provision and maintenance of cemeteries for the area where the burial takes place insofar as it is necessary to incur those fees;

(b) in the case of a cremation –

(i) the fees levied in respect of the cremation by the authority or person responsible for the provision and maintenance of crematoria for the area where the cremation takes place insofar as it is necessary to incur those fees;

(ia) the cost of any medical references;

(ii) the cost of any necessary registered medical practitioner's certificate;

(iii) the fee payable for the removal of any device as defined for the purposes of the Active Implantable Medical Devices Regulations 1992 save that where that removal is carried out by a person who is not a registered medical practitioner, no more than £20 shall be met in respect of that fee; …

……….

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

……… .".

4. Both appeals concern cremation. In both cases the tribunal decided that regulation 7A(2)(b)(i) did not include the cost of a coffin.
5. On file CIS/2651/2003 the relevant paragraphs of the statement of the tribunal's reasons for its decision are:-

" 4. The total funeral account was made up of doctor's fees for cremation forms of £91, Crematorium fees of £295, Minister's fees of £77 and Funeral Director's fees (including coffin and transport) of £905.

5. …[The claimant's representative] argued that the cost of the coffin should have been allowed under [regulation 7A(2)(b)], as the crematorium required the deceased to be transported in a coffin. She advised the Tribunal that the Funeral Director's had advised her that the cost of [the deceased's] coffin was £300 (the cheapest available was £250)." and

" 9. The Tribunal did not accept that an additional amount should have been included in respect of the cost of the coffin under Regulation 7A(2)(b)(i). This regulation specifically refers to fees being levied by the authority or person responsible for the provision and maintenance of crematoria for the area where the cremation takes place. The cost of the coffin is levied by the funeral director and is not therefore covered by this Regulation. Instead this cost falls within Regulation 7A(2)(g) – any other funeral expenses which are subject to a limit of £600.".

6. On File CIS/2607/2003 the relevant paragraph in the statement of the tribunal's reasons is paragraph 11 which is:-

"The nub of this appeal concerns the interpretation of regulation 7A(2)(b)(i). [The claimant's representative] submitted that the fees levied in respect of the cremation by the authority should include the cost of a coffin in which to transport the deceased into the crematorium. [The claimant's representative] had confirmed with the local authority that it would not permit cremation of a body unless it was contained in a coffin. The Tribunal had sympathy with this ground of appeal, but cannot expand the meaning of "fees" to include the cost of a coffin. Fees are financial charges levied for the provision of a service. The service provided by the local authority is the cremation of the body. If the local authority had provided a coffin as part of its service of cremation, then the Tribunal could possibly have considered the cost of a coffin. This is not the case. The coffin was provided by the funeral director. The Tribunal therefore does not allow this part of the appeal as its interpretation of fees does not include the cost of a coffin provided by the funeral director.".

7. The claimants in these two appeals are represented by the same representative. The grounds of appeal which she has stated for the claimants are the same in both cases and are:-

"We are requesting leave to appeal, as the interpretation of the law has led to a perverse and discriminatory conclusion.

The Tribunal's interpretation of regulation 7A(2)(b)(i) fails to further its purpose, as it disallows recovery of an item that is necessarily incurred in order to cremate a deceased person and which is not subject to the choice or discretion of the person responsible for incurring the costs of the funeral.

The regulations are discriminatory against those who are responsible for the cremation of the deceased, as opposed to their burial: the cost of a coffin is necessary for both a cremation and a burial, but is only recoverable in respect of the latter, by virtue of regulation 7A(2)(a)(i). It is also discriminatory because those who live in an area where the local authority provide coffins will recover the cost, whereas those who live in an area where it does not will not be able to recover the cost.".

8. The Secretary of State's representative has responded to the appeal on file CIS/2651/03 in a written submission of 22 August 2003 and to the appeal on file CIS/2607/2003 in a written submission of 28 August 2003. Although the submissions are of different dates they are identical in their terms. It is argued that the tribunals did not err in law, the wording of regulation 7A(2)(b)(i) referring quite clearly to fees levied by the relevant authority and not to costs incurred elsewhere. The cost of a coffin supplied by the funeral director is not a fee levied by the authority responsible for the crematorium. Paragraph (2)(b)(i) in its current form came into effect on 4 January 2000 as a result of an amendment made by the Social Fund Funeral Expenses and Maternity Expenses (General) Amendment Regulations 1999 (SI 1999/3266). Prior to the amendment the relevant provision was –

" (b) In the case of a cremation –

(i) the necessary costs of the cremation, including medical references".

On that previous wording there would have been some force in the claimant's representative's argument but not on the current wording. The claimant's representative's argument that the cost of a coffin is "necessarily incurred and is not subject to the choice of discretion of the person responsible for incurring the costs of the funeral" is not correct. The cost of the coffin may be included in the funeral payment but the authorising provision is in sub-paragraph (g) of paragraph (2).

9. The submissions for the Secretary of State reject also the argument for the claimant that regulation 7A(ii)(b)(i) discriminates against those who are responsible for a cremation instead of a burial. The pre-4 January 2000 version of regulation 7A(2)(a) had been interpreted in Commissioner's decision CIS/3593/99 as including the cost of a coffin in the "necessary costs of the burial" but the current version cannot be interpreted in the same way because a coffin is neither a burial plot, a right of burial or a fee levied by a relevant authority,. The regulations do not, therefore, treat those responsible for a burial more generously than those responsible for a cremation. No discrimination arises because of the differences between authorities in the amounts which they charge for cremations. What they charge for cremation services is a matter for the individual authorities. The Social Fund (General) Regulations do not make any distinctions between claimants.
10. The claimants' representative's observations on the submissions for the Secretary of State are to the effect that the purpose of regulation 7A(2)(i) is to ensure that all costs necessarily incurred in a burial are covered by the regulations. She argues that that a coffin is required in order to conduct a burial. It, therefore, logically follows that a coffin should be an allowed expense for a cremation also. It appears to her that sub-paragraph (g) of regulation 7A(2) is intended to cover matters of choice rather than items which are a pre-requisite of a funeral.
11. One of the more uncongenial duties which fall to Secretary of State's decision makers, appeal tribunals and Social Security Commissioners is the application of the Social Fund Maternity and Funeral Expenses (General) Regulations to people who have been bereaved. Those Regulations are of necessity couched in strict terms with the result that the total funeral payment authorised can be less than the cost incurred by the claimant. I regret to say that I cannot accept the arguments put forward by the claimants' representative. The tribunals and the Secretary of State's representative are correct in their view that regulation 7A(2)(b) is specific as to the costs which it authorises and that those costs do not include the cost of a coffin. In relation to burials paragraph (2)(a) of regulation 7A is equally specific and equally exclusive of the cost of a coffin.
12. The only provision for the cost of a coffin is in sub-paragraph (g). The effect of that is that if the entire cost of the funeral is to be met by the total of the amounts which can be authorised under regulation 7A the person responsible for the funeral must restrict his or her choice of coffin to one which is sufficiently modest for the cost of it and any other necessary expenses which are not specified in the other parts of regulation 7A to be covered by the £600 authorised by that sub-paragraph. As neither sub- paragraph (a) nor sub-paragraph (b) of paragraph (2) includes the cost of a coffin there is no discrimination in that respect between those responsible for a burial and those responsible for a cremation.
13. I agree with the Secretary of State's representative that the fact that there is a variation among local authorities as to the level of the fees charged for cremation services and as to what is included in those services does not render regulation 7A(2)(a) and (b) discriminatory as between the users of different authorities' services. I can see that an anomaly could arise under the Social Fund Regulations if some local authorities provided coffins free of charge or included the cost of coffins in the fees which come within the meaning of "fees" in sub-paragraphs (a)(ii) and (b)(i). However, the anomaly would be that as a result of the practice of some burial or cremation authorities some claimants were escaping the sub-paragraph (g) limit, not that the limit was being unfairly or discriminatorily imposed on other claimants. If there is any evidence that the limit is not effective in some areas of the country that is something which can be dealt with by the amendment of sub-paragraphs (a), (b) and (g).
14. For the foregoing reasons the claimants' appeals fail and my decisions are in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 28 November 2003