UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CIS_1870_2003 (30 April 2004)

PLH Commissioner's File: CIS 1870/03

(heard with CIS 2302/03, 2305/03 & 2624/03)

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

(CIS 1870/03) Claim for: Funeral Payment

Appeal Tribunal: Fox Court

Tribunal Case Ref: U/45/161/2002/01067

Tribunal date: 17 January 2003

Reasons issued: 17 January 2003

[ORAL HEARING]

Introduction

1. In these four appeals which I heard together the question I have to decide is whether the condition in regulation 7(1)(b)(ii) Social Fund Maternity and Funeral Expenses (General) Regulations 1987 SI No. 481, that a payment to meet funeral expenses shall be made only where the funeral takes place in the United Kingdom, has been made ineffective by the Human Rights Act 1998 as regards the claimants, each of whom is from a Muslim family and arranged for the burial of a close relative abroad.
2. Each claimant applied, as a person on a prescribed means-tested benefit, for a funeral payment from the social fund in respect of his or her late wife or husband, ordinarily resident in the United Kingdom at the date of death. In each case the claim was wholly rejected and the Secretary of State refused any payment at all, even for expenses incurred in this country, on the ground that the funeral took place outside it. All the claimants and their late partners though settled in the UK had relatively recent family origins in overseas Muslim countries and continuing personal ties with those countries: Iran in case CIS 1870/03, Bangladesh in CIS 2302/03 and CIS 2305/03, and Pakistan in CIS 2624/03. In each case the choice was made for social, family or religious reasons (or a combination of all three) that the deceased should be returned to the country of family origin to be buried there in accordance with Muslim practice. This was a matter of choice, to comply with the deceased's express wishes or the claimant's feeling or moral and social obligation: it was not however a matter of necessity, as proper facilities for Muslim burials exist in the United Kingdom. There are no material differences in the facts of the four cases so far as the issues of principle I have to decide are concerned and it is not necessary to go further into individual details at this stage.
3. I held a combined oral hearing of the four appeals at which Simon Cox appeared for all four claimants, instructed in case CIS 1870/03 by Kate Pasfield of the Royal Courts of Justice CAB and in the other three by Jenny Booth of the Oldham CAB. Daniel Kolinsky, instructed by the solicitor to the Department for Work and Pensions, appeared for the Secretary of State.
4. It is accepted for the purposes of these four appeals that apart from the effect of the Human Rights Act the condition in regulation 7(1)(b)(ii) would be effective under the domestic law of the United Kingdom to exclude any entitlement to a payment, as held in case CIS 3150/99, since followed in the decisions of other Commissioners and reported as R(IS) 3/02. In each of the present cases however (unlike that one) all of the relevant events and decisions were after the coming into force of the Human Rights Act on 2 October 2000, so that everything depends on whether application of the condition to exclude the entitlements claimed has been made unlawful by the Act from that date.
5. The United Kingdom social security schemes provided from their inception in 1948 for cash assistance to pay for the funerals of all insured persons. The original universal insured benefit was an integral part of the Plan for Social Security which listed as one of the "Eight Primary Causes of Need" for social security, "Funeral Expenses of self or any person for whom responsible, met by funeral grant.": Cmd 6404, 1942, para 311. This reflected the universality of the need and the excessively expensive way it had hitherto been met for most people by voluntary insurance through industrial life offices, at a cost ratio of over 37% of the premiums, compared to which that of administering a funeral grant as part of social insurance and "... paying one claim only for each person in respect of a fact of which there could be no doubt and which must be formally recorded by the State for other purposes" was negligible: paras 157 to 158 ibid.
6. In the years that followed however, successive governments failed to ensure that the value of the insured grant kept pace with the actual cost of a reasonable basic funeral, and by 1985 it was wholly inadequate at only £30, a level at which it had remained stuck for nearly 20 years: Reform of Social Security, Cmnd 9691 1985, para 4.20. By that time, as noted by that White Paper, the means-tested social assistance system by then known as supplementary benefit had had to step in increasingly to give cash help for funeral costs for which persons suffering from poverty were responsible but unable to provide themselves. Even though a burial is otherwise be provided free of charge by the local authority under what is now section 46 Public Health (Control of Disease) Act 1984 it has long been accepted that these are circumstances justifying the making of a "single payment to meet an exceptional need": cf. Ogus and Barendt, Law of Social Security, 1st Edition 1978, p525; section 3 Supplementary Benefits Act 1976; and regulation 8 Supplementary Benefit (Single Payments) Regulations 1981 SI No 1528 which may fairly be seen as the progenitor of the present social fund rules.
7. Following the proposals in that White Paper the Social Security Act 1986, and the 1987 Social Fund regulations cited above, abolished what remained of the death grant and replaced both it and the means-tested single payments system with the current one of cash payments to help meet reasonable funeral costs when the person responsible is in a defined class and in receipt of income support or other means-tested benefits.
8. This form of public assistance thus has its roots firmly in the relief of poverty. That there is also a correlation between the needs accepted as qualifying for it and the existence of close family or personal ties is apparent from the detailed conditions now in regulation 7, which restrict entitlement to cases where the claimant is a close relative or friend of the deceased and there is no other immediate family member who might be expected to pay for the funeral instead. Paragraph 4.20 of the White Paper when setting out the proposals for the current system had started by saying:

"Payments will also be made to help low income families who are unable to meet the reasonable cost of a funeral for which they are responsible."

There is no similar correlation apparent with any religious or other belief of the deceased or the claimant, though the general expression "funeral" is of course accepted as including a religious or humanist ceremony.

Territorial condition and Convention rights alleged to be infringed

9. The condition said to infringe the Human Rights Act is in regulation 7(1)(b)(ii) already noted, which must be read in the context of the special provision for EU migrant workers added into the same sub-paragraph following the decision of the ECJ in O'Flynn v. Chief Adjudication Officer [1998] ICR 608. The regulation now reads so far as material (and applicable to these cases) as follows:

"7. -(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') …

(i) has an award of income support …

(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;

(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; …"

10. Responsible persons within paragraph (1A) of the regulation are broadly migrant workers who have taken advantage of their rights of free movement within the community under relevant EU legislation, and members of the families of such workers. There is no question of any of the present claimants being able to get within that category, but the comparison of how they are treated as regards expenses for funerals outside the UK may be relevant to whether the regulations discriminate against them.
11. The Convention rights (as defined in section 1 of the Human Rights Act) one or more of which is alleged to have been infringed by the refusal of a funeral payment in these cases are:

(1) Article 8 (right to respect for family life) in conjunction with Article 14 (enjoyment of Convention rights to be secured without discrimination):

(2) Article 9 (freedom of thought, conscience and religion), also in conjunction with Article 14;

(3) Article 1 Protocol 1 ("Article 1P1", peaceful enjoyment of possessions), also in conjunction with Article 14.

12. No breach of any of the three primary Articles on its own, apart from the additional effect of Article 14, is alleged. What was argued by Mr Cox was in essence that the close connection between funeral arrangements and family life and/or religious observances, and/or the fact that there would be a legal right to a funeral payment apart from the condition excluding it, mean that if the State is going to provide means-tested cash assistance for funeral expenses at all for anyone, it must do so without the application of a condition which has the effect of excluding a particular group to whom these claimants belong, in circumstances where exactly parallel or comparable expenses would be met for other groups of people not disadvantaged by the condition.
13. On behalf of the Secretary of State Mr Kolinsky disputed that any of the three primary Articles 8, 9, or 1P1 was "engaged" by the provision of social fund funeral payments in such a way as to raise any question of discrimination contrary to Article 14. In these appeals the Secretary of State specifically did not make the concession to that effect made on Articles 8 and 9 before the Commissioner in case CIS 4769/01, and he invited me to depart from the view expressed in CIS 3280/01 paragraph 8 that Article 8 was so engaged because of the importance of funerals in family life.
14. Further or alternatively even if the principle of non-discrimination under Article 14 was applicable because the subject matter was within one or more of the primary Articles, there was no infringement of that principle because the claimants could not establish less favourable treatment as compared with any other identifiable group of people in analogous circumstances. The condition restricting funeral payments to UK funerals applied to everyone alike, so that there was no question of it amounting to direct discrimination. Moreover even if, which was disputed, indirect discrimination was within the scope of Article 14 at all there was no statistical or other evidence of the kind needed to make out a case for this on the facts. In any event the restriction of social assistance payments to UK funerals (apart from the special case of EU migrant workers) was firmly within the "margin of appreciation" for an individual State to determine: it was a policy and resource judgment of the kind that on the established Strasburg jurisprudence lies outside the area for a court to interfere by substituting its own view of what the State should do to comply with its Convention obligations.

Some preliminary points: complainants, remedies, and indirect discrimination

15. The first point to clarify is whose Convention rights are at issue in cases such as these. To this there can in my judgment be only one answer, which is that given by the Commissioner in paragraph 18 of CIS 4769/01, namely that the only person whose human rights are relevant in an appeal under the Social Security Act 1998 against the refusal of a claim for a funeral payment is the claimant himself, as the person seeking to obtain the cash benefit and complaining that the refusal to pay it to him is made unlawful by the Human Rights Act. This is quite clear from the legislation and in particular from section 7(1)(b) Human Rights Act 1998 under which the only ability to rely on the Convention right or rights concerned is in the legal proceedings by way of appeal to the tribunal, as a victim of the allegedly unlawful act. I therefore reject the submission made to me at more than one point by Mr Cox that the Convention rights to be taken into account here extend to the family life, religious freedom or property rights of the deceased, or the community as a whole, or of some segment of it however defined. Such claims by appellants for cash benefits to be paid to themselves do not raise questions of the kind considered by the Court of Appeal in R (Khan) v. Health Secretary [2004] 1 WLR 971 (not doubted on this point in McKerr referred to below), where it was accepted that the family of a deceased person may stand in his or her shoes and act as "proxies" to enforce the State's obligations under Article 2 (right to life).
16. Secondly there is in my judgment no doubt of the jurisdiction of a Commissioner or appeal tribunal to give a decision avoiding the unlawful effect of this regulation if it infringes a Convention right. This being secondary and not primary legislation, and there being (a) no obligation under the primary legislation itself to confine payments to funerals in the United Kingdom, but conversely (b) no possible scope for construing the regulation as doing anything other than just that, the effect of the Human Rights Act is that insofar as it would cause an infringement of an individual claimant's Convention rights, the regulation can no longer be applied against him or her by any public authority, including a court or tribunal: R(IS) 6/04 para 33. This is purely a matter of the operation of the Act under UK domestic law once fully applicable: cf. Re McKerr [2004] UKHL 12, [2004] 1 WLR 807, 826 para 63 per Lord Hoffman. There was disagreement between Mr Cox and Mr Kolinsky on the exact way this would work in actually calculating a funeral payment under Part III of the 1987 Regulations if the restriction to UK funerals were held unlawful. It is not necessary to say more here than that I accept Mr Cox's submission that in principle the starting point must be simply not to apply the condition, but also Mr Kolinsky's submission that the Act only requires one to do this to the extent necessary to give effect to the Convention right at issue, and no further. Where non-discrimination under Article 14 is concerned that may not be achieved by a mere mechanical application of the rest of the regulations to circumstances for which they were not designed, and the exact requirements to correct any inconsistency with a claimant's Convention rights would need to be given consideration in each individual case. I was not however persuaded that this meant the regulations become completely unworkable if one disapplies the condition.
17. I would also accept Mr Cox's submission that the principle of non-discrimination in the enjoyment of Convention rights is expressed in Article 14 as a general result the contracting State is obliged to secure; and that this must mean its obligations under the Article are not restricted to merely avoiding the use of direct, overt and deliberate discriminatory provisions on the face of its own domestic legislation. The Article does not differentiate between directly and indirectly discriminatory conduct in the way our domestic Sex Discrimination Act 1975 and Race Relations Act 1976 do, but simply prohibits all "discrimination" it its field of application in the same way as do provisions of European Union law, such as Article 7 EEC prohibiting any discrimination on the grounds of nationality, where it is well established that the word includes indirect discrimination as well as its more direct manifestations so that the effects of a provision are relevant as well as what appears on the face of things.
18. Although as stated by the Commissioner in CIS 4769/01 paragraph 44 the Court of Human Rights has been slow to find, as opposed to recognise the possibility of, indirect discrimination in the cases that have come before it, I agree with what was said in CH 5125/02 paragraph 54 that there is no reason in principle why Article 14 should not apply to indirect discrimination as well as any other form. Nor was there any Strasbourg jurisprudence cited to me suggesting that it does not. On the contrary, the Court in McShane v. UK expressly recognises that a generally expressed measure having disproportionately prejudicial effects on a particular group may be considered as discriminatory in the context of Article 14: (2002) 35 EHHR 593 paragraph 135. In the light of this and the striking similarity between the language used by the ECJ in relation to cases of indirect discrimination and by the ECtHR in Article 14 cases, referring to differences in treatment having no objective and reasonable justification in terms of legitimate aims and proportionality, it seems to me most unlikely that the two lines of European jurisprudence are talking about different concepts of "discrimination". Compare for example O'Flynn [1998] ICR at 629, paras 19 to 20, with Petrovic v. Austria (1998) 33 EHRR 307, para 30; where it is to be noted that the starting point is the difference in treatment, that is the effect of the provision in question rather than its form or motivation. For those reasons I reject Mr Kolinsky's submission that only direct overt discrimination need be considered under Article 14.

Direct discrimination

19. Mr Cox first argued that these were cases of direct discrimination, though I did experience some difficulty as the hearing progressed in following from his submission how exactly he formulated the discrimination alleged to exist here: in particular what group of people including each of these claimants was the class identifiable by "status" as suffering discrimination for the purposes of Article 14 in the fact of being refused a social fund payment for a non-UK funeral, and who were the comparator group by comparison with whom they were disadvantaged. It seems to me Mr Kolinsky must be right in saying that one must look for two different groups of people being treated differently in otherwise analogous circumstances; and even if it is too narrow an approach to look for some "personal characteristic" to define the class suffering discrimination for the purposes of the Article, nevertheless they have to be identifiable as a group by reference in some way to who they are, not simply the problem or event complained of as the discrimination (cf. C v Home Office, [2004] EWCA Civ 234, para 37 per Sedley LJ). So here, where the distinguishing event is the taking place of a funeral outside the UK, the mere fact of being a person who has chosen to arrange a relative's funeral outside the UK does not constitute a "class" of people who can complain of discrimination for the purposes of Article 14 by virtue of all having made a similar choice. In my judgment it is clear, without needing to explore further the bounds of what can count as a disadvantaged class or status for Article 14 in other instances, that something more than the fact of such a choice and the consequent refusal of a payment is needed to constitute a group who can complain of discrimination on the ground of "status" within the Article. It follows that there can be no claim of direct discrimination in the express terms of the condition which treat UK and non-UK funerals differently.
20. By the same token, although the regulations on their face do of course overtly differentiate between EU migrant workers and others in the extension of funeral payments to an EEA country of origin, I do not think it can be argued that "everyone who is not an EU migrant worker or a member of the family of such a worker" is capable of constituting a sufficiently defined class by reference to status for the purposes of Article 14 so as to provide these claimants or anyone else with an alternative claim for direct discrimination, nor did I understand Mr Cox to rely on any such argument. In any event, the special protection for migrant workers to ensure the free movement of labour throughout the community and comply with the UK's specific obligation to provide such benefits following the O'Flynn decision must provide an easy and objective justification to negative any idea that this special treatment can constitute unlawful discrimination against the rest of us for the purposes of Article 14.

Indirect discrimination

21. Conversely however I think it right to accept Mr Cox's submission that the claimants in these four cases do fall within a sufficiently defined group of people identifiable as adversely affected by regulation 7(1)(b)(ii) to enable them to maintain complaints of indirect discrimination against it, provided they can show the funeral payment provisions to be subject to the guarantee under Article 14. Although not exactly as he formulated it, the group of what one may loosely refer to as "migrants" or members of migrant families, namely those who or whose families have arrived to live and settle here from other countries within the last generation or so, do in my judgment form a sufficiently discrete group of people by reference to who they are or "national or social origin, association with a national minority … or other status" to form a class for the purposes of Article 14.
22. Moreover, despite the careful arguments of Mr Kolinsky and the views expressed by the Commissioner in case CIS 4769/01 that one should be slow to reach a conclusion on this without clear statistical evidence and figures to demonstrate the point, it seems to me that I can and should properly accept that the condition in question here is inherently more likely to disadvantage the group I have identified, compared with those whose ancestors' arrival and settlement in these islands is now beyond living memory. No statistics are needed to know that the social, family and personal ties that dictate where people will feel it right to bury their deceased relatives stem from very deep-rooted human feelings, and for most people are things that will change only gradually over a long period of time, not just a matter of months or a few years. Given the similarity of approach already noted in the two lines of continental jurisprudence I do not for my part find any difficulty in adopting a similar approach to that of the ECJ in O'Flynn. The provision depriving claimants who wish to bury their relatives abroad of all benefit is intrinsically more liable to affect migrants and their families in the group I have sought to identify than those whose families have been here longer, and the result is that the former group are placed at a disadvantage by being deprived of any State assistance at all for funeral arrangements which all sides accept are proper, legitimate and normal for them to seek to make. I follow the ECJ in holding it sufficient that the condition is inherently liable to have such an effect and has actually had exactly that effect in each of these cases and other similar ones involving migrant families.
23. To deny this in the absence of more detailed statistical evidence would in my view be to shut one's eyes to the obvious. If for example there were a rule making entitlement to assistance for weekly living expenses depend on supporting England in the test match rather than India or Pakistan, there could I think be no doubt that this is inherently likely to disadvantage recent arrivals from the Indian sub-continent. The same must be true of a rule excluding all entitlement to funeral expenses for funerals abroad, in the first generation or so after arrival and settlement here while the natural personal and family ties with the country of family origin are still going through the process of loosening and transferring to the country of settlement.
24. I am therefore for my part prepared to hold that the failure to pay any benefits at all, not even for expenses incurred in the United Kingdom and common to everybody who has to organise a funeral (which is the aspect that strikes most people as unfair and difficult to justify), amounts in general terms to a piece of discrimination against these claimants and other members of migrant families in a similar position. It is not necessary to consider further the working of Article 14 on its own or the Strasbourg jurisprudence on what disadvantages in treatment fall short of "discrimination" in this context, since reliance on any "objective justification" (that is, some legitimate aim to which the means used bear a reasonable relation of proportionality: Petrovic, para 30) has been expressly disclaimed in these proceedings by the Secretary of State. See paragraph 30 of the very clearly analysed written submission by Mr K McClure of the DWP at page 163 of the first appeal file CIS 1870/03, from which Mr Kolinsky in his written and oral submissions did not in any way seek to resile.

The limits of what Article 14 makes unlawful

25. However as is well established, Article 14 is not a general prohibition of all provisions or practices which may operate in a discriminatory way or have discriminatory effects. The principle of non-discrimination it embodies is much narrower in scope, and specifically limited to the securing of enjoyment of those rights and freedoms expressly set out in the Convention itself.

"Article 14 is concerned with the avoidance of discrimination in enjoyment of the Convention rights insofar as the requirements of the Convention as to those rights can be complied with in different ways." - Abdulaziz v. UK (1985) 7 EHRR 471, 503 para 82.

The answer to these cases therefore depends on whether the facts truly show an infringement of the State's duty under Article 14 to secure in a non-discriminatory way the enjoyment by these claimants of one or more of the rights and freedoms set out in other Articles (of the Convention, or a relevant Protocol as the case may be).

26. The way in which Article 14 is intended to operate in conjunction with the "primary" Convention rights set out in other Articles is I think easiest to understand by keeping in mind the sentence just quoted, and how the relation between them was originally expressed by the Court of Human Rights in the Belgian Linguistic Case (No. 2) (1968) 1 EHRR 252 at 283 paras 8 to 9. There the Court placed the focus on the primary Articles and said that these:

"8. … must be interpreted and applied by the Court not only in isolation but also having regard to the guarantee laid down in Article 14.

9. While it is true that this guarantee has no independent existence in the sense that under the terms of Article 14 it relates solely to 'rights and freedoms set forth in the Convention', a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature."

27. The complementary nature of Article 14 has been consistently emphasised in the judgments of the Court since then, for example in Petrovic v. Austria already cited, at 33 EHRR 318 para 22:

"As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter."

28. How to tell whether the facts of a given case count as "falling within the ambit" of another substantive Convention provision in the sense there intended by the Court presents a lawyer trained in the precedent-based tradition of our domestic legal system with the hardest task. The difficulties of analysis are particularly acute when as here the substantive Convention provisions potentially in point are all in the nature of freedoms or immunities: to be allowed to get on and lead one's own personal and family life, profess whatever set of religious or other beliefs one likes, and enjoy one's property rights and possessions free from arbitrary deprivation or interference. Where the rights concerned are of that nature rather than positive claims against the government, the corresponding obligations of the State are essentially negative: Campbell, infra.
29. That the need for the State to secure effective freedom from interference in these respects may in some exceptional circumstances require it to take positive action or expend public money is undoubted as a matter of principle: but the occasions when it is obliged to do so are in the present context very limited indeed. The State is not obliged under the Convention to make cash payments at all to help with private funeral costs, and the requirements of basic human decency, respect for individual human life and public health can all be adequately met by the funeral arrangements that will be made in default of anyone else by the local authority. It was common ground, in my view entirely rightly in this as in previous cases, that the failure to make funeral payments out of public funds in the circumstances at issue here could not even arguably amount to a breach of anyone's substantive rights under Articles 8, 9 or 1P1 taken alone. So in what way does the position change when any one or more of those Articles is looked at in conjunction with the guarantee in Article 14?
30. In argument, the question of whether the Article 14 guarantee was brought into play was referred to as one of the substantive Articles being "engaged", but I did not find this (undefined) expression of much assistance. It describes a result, but gives no clue to how to get there in terms of identifying the dividing line between those actions taken by the State to secure enjoyment of a substantive Convention right (when the Article 14 guarantee must apply) and those which fall short of doing that though they happen to be taken in the same factual context (when it will not). In the latter case the State's actions are not correlative to "one of the modalities of the exercise of a right guaranteed" or "linked to the exercise of a right guaranteed" (Petrovic, supra at para 28), and even if they do have less advantageous effects for one group than for another, no complaint of them can be made under Article 14.
31. Again it seems to me that the surest guide to the Court's pronouncements on the applicability of Article 14 in conjunction with other substantive Articles is the wording of the Convention itself, and to remember that what must be secured (and thus the scope of any arguable infringement of the complementary guarantee under Article 14) is the enjoyment of the right or freedom protected under the separate substantive Article. Thus as emphasised in the passage from Petrovic paragraph 28 just referred to, the references to the "ambit" or applicability of a substantive provision must be to the rights and freedoms that provision protects, not merely the factual context in which they arise. To take a concrete example, virtually all the cash welfare provision made by the State to assist poor people with living expenses and housing costs may be said to be made in the context of an individual's private and family life and his home, because that is what it is intended to provide for and be spent on. But it does not follow that the entire social security system is provided as the State's means of securing the basic personal freedoms enshrined in Article 8, so as to enable any differential to be made the subject of challenge and complaint on discrimination grounds under Article 14. See R (Carson) and R (Reynolds) v. Secretary of State, [2003] 3 ALL ER 577 at 591, paras 28 to 29; and Campbell v South Northamptonshire DC [2004] EWCA Civ 409, 7 April 2004, paras 24-30 emphasising the need for a "direct link" with the rights under the substantive Article before Article 14 can come into play, and the very limited ambit of Articles 8 and 9 where positive obligations to spend public money are alleged to be involved.
32. While the Court of Human Rights must be accepted as adopting a broader and more flexible approach to the question of when a substantive Article is "applicable" than that so impressively argued in the dissenting opinion of Sir Gerald Fitzmaurice in Marckx v. Belgium (1979) 2 EHRR 330, 364-378, nevertheless there must still be some stopping-place short of the situation considered and rejected by Laws LJ in Reynolds as "not the law", of the ambit of Article 8 being treated as embracing whole swathes of the social security system. In my judgment what must be looked for is some direct link to the freedoms or rights specified in the substantive primary Article. That is not shown merely by a contextual link between the payment of a cash benefit and some personal, family or religious significance associated with the event or purpose on or for which it is paid, or the fact that anyone to whom it is paid will thereby have more possessions.
33. With some diffidence given the elusive nature of the dividing line, I accept Mr Kolinsky's submissions on this part of the case. I hold that the provision of cash funeral payments from the social fund under the 1987 Regulations is not, in any relevant sense for the purposes of Article 14, the performance of an actual or perceived positive obligation to secure the enjoyment of the freedoms and immunities set out in any of Articles 8, 9, or 1P1, or so directly linked to any such obligation as to bring these cases within any of those articles in conjunction with Article 14.

(Article 8)

34. Article 8 (right to respect for private and family life) is the one that obviously gives rise to by far the strongest argument, in view of the undeniable connection between the provision of this benefit and the family or personal responsibilities of those who can claim it, and of course the fact that funerals are important and often memorable family occasions. Although I have carefully considered what was said by the Commissioner in CIS 3280/01 paragraph 8 where he was prepared to accept that the funeral payment provisions were within the ambit of Article 8 of the Convention as constituting "a demonstration by the State of respect for one of the most solemn and fundamental manifestations of family life", I have reached the conclusion that I should not follow it in the light of what was said by Laws LJ in the later decision of Reynolds, and because it appears to me with respect to fall into the trap of confusing the two things that have to be kept distinct for the purposes of Article 14, namely the securing of the enjoyment of the right protected by the primary Article, and the factual context in which it arises. Just because funerals are undeniably very important occasions for individuals and their families, it does not follow that every action taken by the State in relation to a funeral, and in particular every provision of means-tested cash assistance for people to meet the costs of a private funeral, is a means of the State securing the freedom from interference with private and family life that is the essential nature of the right guaranteed under Article 8.
35. There is in my judgment nothing in the other authorities cited to me on Article 8 in conjunction with Article 14 that obliges me to hold they are infringed here. Abdulaziz already cited was a case where the policy of restricting spouses from joining their partners lawfully and permanently settled in the United Kingdom had the most direct effect on the ability of those settled here to live anything that could be called a normal family life. There is no difficulty in seeing how the Court of Human Rights was able to accept that the "measures taken in the field of immigration may affect the right to respect for family life under Article 8" so as to attract the principle of non-discrimination when the rules caused more interference with the family lives of women already living here than for men in comparable circumstances: see (1985) 7 EHRR 471, 495 para 60, 498 to 503 paras 70 to 83.
36. Petrovic already cited was a case where the Court was prepared to accept that the provision of a parental leave allowance was something that necessarily affected family life in enabling it to be carried on on a continuing basis by one of the parents staying at home to look after the children, so as to be a means of securing the respect and freedom under Article 8; though on the facts of the case that was not an essential part of the Court's reasoning as the actual decision was that in any case the difference in treatment complained of was not discriminatory within the meaning of Article 14. Reliance was also placed by Mr Cox on Cooper and Ors v. Secretary of State for Work and Pensions [2002] EWHC 191 (Admin) and [2003] EWCA Civ 813, where Moses J at first instance held, and the Secretary of State before the Court of Appeal conceded, that the statutory provisions at that time entitling women, but not men, to insured lump sum widow's payments, widowed mother's allowances and widow's pensions had a "significant effect on the relationship of a family prior to the death of the spouse" and formed "a significant part of a family's plans for a secure future" so as to bring those forms of cash provision within the ambit of Article 8 and raise issues of discrimination between men and women for the purposes of Article 14. There are no corresponding concessions made before me in this present case and I do not consider that what was said either by Moses J or by the Court of Appeal obliges me to hold, by parity of reasoning, that the very different provisions for social fund funeral payments are a means of preserving the continuity of family life by ensuring continuing security and support for a person's dependants, which seems to have been the basis on which the decisions and concession in Petrovic and Cooper on the particular benefits there in point were made.
37. For my part I find helpful the observations of Newman J in Secretary of State for Defence v. Hopkins [2004] EWHC 299 (Admin) para 51, that a narrower approach focusing on some necessary effect on the exercise of the right under the primary Article is required of courts in this country in view of the recent Court of Appeal authority, in particular Carson and Reynolds; and that Article 8 does not give rise to a right to receive financial assistance to support a person's family life or to ensure that individuals may enjoy family life to the full or in any particular manner. The fact that some such assistance is provided for individuals or families is not to be taken without more as a measure by the State to secure the right of freedom from interference with individual or family life within Article 8: a point re-emphasised by the Court of Appeal in Campbell already cited, and Anufrijeva v. Southwark LBC [2004] 2 WLR, 603, 622 para 43 where the court (including both the Lord Chief Justice and the Master of the Rolls) emphasised the restricted nature of the State's positive obligation under Article 8 to provide support, confining it to cases where that is essential to avoid severe degradation or conditions making it practically impossible to continue family life at all.

(Article 9)

38. The claim that the failure to make funeral payments in these cases amounts to an infringement of the right of religious freedom under Article 9 as complemented by Article 14 must receive a similar answer, which follows a fortiori. As already noted there is no link in the regulations themselves with any religious observance of either the deceased or the claimant: requirements of the deceased's religious faith are expressly excluded from certain heads of cost under paragraph 7A(4) but it is not suggested that can amount to religious discrimination. Again, the mere fact that deaths and funerals are for many or most people occasions of religious significance and religious observance does not get anywhere near establishing that this form of financial assistance, provided irrespective of any religion, is in some way a means of the State securing the enjoyment of freedom of thought, conscience and religion under Article 9. That an enforced burial or retention of a deceased person in the "wrong" religious burial ground may arguably involve a direct infringement of the right to expression of religious or other beliefs (re Durrington Cemetery, re Crawley Green Road Cemetery [2001] Fam 33, 308, on which Mr Cox relied) does not in my judgment bring the very different facts of these cases anywhere nearer the necessary link with the securing of religious freedom that is needed for the argument to succeed.

(Article 1P1)

39. The final argument that the condition preventing the claimants from becoming entitled to a funeral payment amounts to an infringement of their right under Article 1P1 to the peaceful enjoyment of their possessions, as complemented by Article 14 which requires the enjoyment of that right to be secured without discrimination, must in my judgment also be rejected. Article 1P1 itself protects existing possessions, and provides no basis for any argument that it is concerned with acquiring property or payments to which there is no entitlement under the national law: Carson and Reynolds already cited, para 23, referring to consistent authority in the Court of Human Rights from Marckx v. Belgium (1979) 2 EHRR 330 onwards. Nor in my judgment is there any basis for my holding that the conditions for means-tested social assistance give rise to questions of the protection of property rights of the kind in point where contribution-related or analogous benefits are concerned, so as to attract the principle of non-discrimination under the combined effect of Article 1P1 and Article 14 as in Gaygusuz v. Austria (1997) 23 EHRR 364: cf. Carson and Reynolds, paras 32 to 50. Mr Cox sought to persuade me that the boundaries should now be set much wider in relation to social assistance benefits in the light of the recent decision of the Court of Human Rights in Poirrez v. France (No. 40892/98, 30 September 2003) but in that case the Court appears to have placed special reliance on the benefit in question being a universal benefit making special provision for persons with a disability for which the claimant met all the required conditions, being rejected solely on the ground of his nationality which amounted to direct discrimination. I do not for my part think the Court's judgment can be taken as intended to extend the concept of a "possession" to all social assistance of any kind regardless of the conditions of entitlement in point under the national legislation, and I am fortified in this by what was said in Campbell in the Court of Appeal where Carson was reaffirmed and a similar argument on Poirrez rejected: paras 35-36, 56. At this level at least it seems to me that I am bound to continue to draw the line where it was placed by the Court of Appeal in Carson and Reynolds so that income support and social fund payments are outside the scope of Article 1P1.

Conclusions

40. No other article was relied on and it follows in my judgment that no complaint based on Article 14 can be made against regulation 7(1)(b)(ii) even though its effects are discriminatory. I need not consider the further argument on the margin of appreciation under Article 14 which I have to confess I would have found a difficult one to evaluate, given the government's disclaimer of any reliance on objective justification or legitimate aim and the lack of any identified policy reason for the measure as it stands.
41. For those reasons, I hold that the condition in regulation 7(1)(b)(ii) of the funeral payments regulations is not invalidated or rendered inapplicable in any of these cases by the effect of the Human Rights Act 1998 as it does not infringe any relevant Convention provision. The effect of that on the actual decisions given by the tribunals in these four cases must now be considered separately.
42. In case CIS 1870/03 the claimant, a man now aged 53, is of Iranian national origin. His wife died on 27 February 2002 and he arranged for her funeral in Iran, which took place there on 8 March 2002. His application for a funeral payment made on 17 April 2002 was turned down by a decision of the Secretary of State given (as revised) on 15 May 2002, on the ground that the funeral took place outside the UK: page 5F. The claimant's appeal against this as an infringement of his human rights under Articles 8, 9 and 14 was rejected by a tribunal chairman sitting alone at Fox Court, in a decision and very short statement of reasons given on 17 January 2003: pages 7 to 9. The appeal on behalf of the claimant that the statement of reasons is completely inadequate and the chairman must have misdirected herself in declining to hold that there had been an infringement of his human rights is supported by the Secretary of State on the first ground though not of course on the second. I agree that the very short statement of reasons supplied was inadequate to explain how the chairman dealt with the various points of law argued before her on the Human Rights Act and as conceded I set aside the decision on that ground. On the conclusions I have myself reached on those points and the further ones argued before me however the chairman's actual decision to apply the regulations and confirm the rejection of the claim was the correct one. Accordingly although this appeal is formally allowed I exercise the power in section 14(8)(a) Social Security Act 1998 to substitute my own decision to the same practical effect, that for the reasons already given the Secretary of State's rejection of the claim on the ground given in the revised decision of 15 May 2002 was correct and is confirmed.
43. In case CIS 2302/03 the claimant is a lady now aged 48, of Bangladeshi family origin. She made a claim for a funeral payment in respect of her late husband who died on 14 February 2002, his funeral taking place in Bangladesh. Her claim dated 18 March 2002 was rejected by the Secretary of State by a decision on 26 March 2002 on the ground that there could be no entitlement because the funeral had not taken place in the UK or an EEA state. Her appeal to the tribunal contending that this infringed Articles 8, 9 and 14 was dismissed by the tribunal chairman sitting alone at Rochdale on 3 February 2003, for reasons very clearly set out by him in the statement issued to the parties on 27 February 2003: pages 78 to 80 of this file. Although I have myself differed from the chairman in one of the points touched on in his statement of reasons on the correct approach to indirect discrimination for the purposes of Article 14, there was no material error of law in his decision to confirm the Secretary of State's rejection of the claim in accordance with the regulations, and I accordingly dismiss this appeal which is not supported by the Secretary of State on any point.
44. In case CIS 2305/03 the claimant is a lady now aged 56, also of Bangladeshi family origin. Her late husband died on 13 January 2002, the funeral taking place in Bangladesh. Her claim for a funeral payment was made on 15 February 2002 and rejected by the Secretary of State on 25 February 2002 on the ground that there could be no entitlement as the funeral had not taken place in the UK or EEA. Her appeal on the ground that the refusal of any financial help at all was discriminatory and contrary to Articles 8, 9 and 14 when similar amounts on the bill for a UK funeral would have been allowed was also dismissed on 3 February 2003 by the same chairman at Rochdale, for reasons identical to those he gave in the previous case: pages 60 to 65 of this file. I take the same course as in CIS 2302/03 and dismiss this appeal.
45. In case CIS 2624/03, the claimant is a gentleman now aged 74, of Pakistani family origin. He claimed a funeral payment in respect of his late wife who died on 26 May 2002, her funeral taking place in Pakistan the following day. His application made on 31 July 2002 was rejected by the Secretary of State on 9 August 2002 because the funeral took place outside the UK or the EEA. The claimant appealed to the tribunal on the ground that this infringed Articles 8, 9 and 14 and the appeal was dismissed by a different chairman sitting at Rochdale on 1 April 2003. In a careful statement of reasons issued to the parties on 29 April 2003 the chairman noted that there were two issues in the appeal against the refusal of entitlement, since as well as the question whether the condition as to the funeral taking place in the UK was displaced by the Human Rights Act there was a question whether the claimant and his late wife, who had been a resident in a nursing home at the time of her death, counted as "partners" for the purposes of regulation 7(1)(e) so as to enable him to make the claim.
46. On that further question the tribunal chairman recorded a finding that on the facts of the case the claimant had remained the "partner" of his late wife at the date of her death, and the Secretary of State has not sought to argue that that finding should be disturbed on this appeal. On the human rights issues the chairman expressed the view that the better approach was that Articles 8 and/or 9 were "engaged" and consequently "arguments under Article 14 concerning indirect discrimination and justification arise". However he declined to consider these or make findings on them, because he took the view that to do so could involve his rewriting regulation 7 in a way that was beyond his jurisdiction. He said

"It is beyond the power of this tribunal to rewrite statutory provisions whether they are contained in primary, or as in this case subordinate, legislation."

This was something that he said could only be done by Parliament, and on that basis he held he was bound to apply the regulation as it stood, regardless of whether it infringed a Convention right, so the appeal must fail: pages 71, 83 to 84 of this file.

47. The Secretary of State does not support this latter part of the tribunal chairman's reasoning and concedes that he misdirected himself in holding he was bound to apply the terms of subordinate legislation even if it infringed a Convention right. This of course confuses the different treatment of primary and subordinate legislation under the Human Rights Act: R(IS) 6/04, already referred to and accepted as applicable here. That material misdirection meant that the chairman failed to address the relevant human rights points in the case effectively or at all, so on that ground I must set the decision aside. However as in the first of these appeals I exercise the power in section 14(8)(a) Social Security Act 1998 to substitute my own decision, which is to the same practical effect: namely that based on the tribunal's factual finding which I am satisfied should be left undisturbed I confirm that the claimant would have been entitled to claim a funeral payment as the "partner" of his late wife, but the condition in regulation 7(1)(b)(ii) as to the funeral taking place in the UK applies to deprive him of that entitlement and is not displaced by the Human Rights Act. The original decision by the Secretary of State rejecting the claim on that ground was therefore correct and is confirmed.

(Signed)

P L Howell

Commissioner

30 April 2004

1.