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Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> MS v Secretary of State for Work and Pensions [2009] UKUT 201 (AAC) (02 October 2009)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/201.html
Cite as: [2009] UKUT 201 (AAC)
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MS v Secretary of State for Work and Pensions [2009] UKUT 201 (AAC) (02/10/2009)
Income support and state pension credit
other: income support
IN THE UPPER TRIBUNAL Case No. CIS/923/2009
ADMINISTRATIVE APPEALS CHAMBER
Before Deputy Judge Nicholas Paines QC
Decision: The decision of the First-tier Tribunal is erroneous in law. I set it aside and remit the case to the First-tier Tribunal.
Paragraph 22 of this decision contains directions to the tribunal and the Secretary of State.
REASONS FOR DECISION
The facts
1. The claimant, who is a woman in her 60s, had a sister whom I shall call B, who died on 2 November 2007. The claimant accepted responsibility for the funeral costs and claimed a funeral payment. The claimant also has a surviving sister, C. The claim was refused by the Secretary of State and the First-tier Tribunal on the grounds that C, who obviously was also a sister of B, was not in receipt of a relevant social security benefit and was not estranged from B at the date of B’s death.
The law
2. Entitlement to a funeral payment is governed by regulations 7 and 8 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005. There are a number of conditions in regulation 7, all of which the claimant satisfied. In particular, she was herself in receipt of one of the social security benefits listed in regulation 7(4) and she was a ‘close relative’ of B; the definition of ‘close relative’ in regulation 3 includes sisters. Accordingly, C was also a close relative of B; this is relevant to issues under regulation 8 of the Regulations.
3. Regulation 8 removes entitlement to a funeral payment where certain conditions are satisfied. One of these (regulation 8(1)) removes entitlement where the claimant is not the deceased’s partner and (in summary and subject to exceptions in regulation 8(2))) there exists an ‘immediate family member’ of the deceased who was not estranged from the deceased at the date of her death and neither they nor their partner has an award of the relevant social security benefits. ‘Immediate family member’ is defined in regulation 3 as a parent, son or daughter. Neither the claimant nor C was an immediate family member of B and B did not have any immediate family members at the date of her death (or, at any rate, none who were not within the exceptions in regulation 8(2)).
4. Regulation 7(7) and (8) apply where (as here) the deceased had one or more close relatives. Under regulation 8(7) a close relative is not entitled to a funeral payment if either of two conditions is satisfied. They are either (a) that another close relative was in closer contact with the deceased than the claimant or (b) that another close relative was in equally close contact with the deceased as the claimant and neither they nor their partner has an award of the relevant social security benefits.
The decision
5. Both the Secretary of State’s decision-maker and the tribunal applied the regulations as though C were an immediate family member of B. The decision-maker ticked ‘yes’ in the box opposite the question ‘are there any surviving immediate family members (parents, sons or daughters) of the deceased who are not entitled to a qualifying benefit?’ The reason for the decision was given as ‘Regs 7 – not satisfied (sibling not on QB)’. The decision-maker seems to have appreciated that C was a sibling of B and not to have appreciated that that did not make her an immediate family member. The Secretary of State’s submission to the tribunal suffered from the same error.
6. Between the Secretary of State’s decision and the tribunal hearing, an association representing the claimant wrote to the Department asking it to reconsider the decision on the grounds that C was believed to be on pension credit (a qualifying benefit). The letter gave the names, address and telephone number of C and her husband and C’s date of birth. There is no evidence that anything was done in response to this, and the Secretary of State was not represented at the hearing.
7. At paragraph 4.2 of the statement of reasons the tribunal confused the rules that apply where other close relatives exist with the rules that apply where there are other immediate family members. It therefore treated the issues as being whether C was in receipt of a qualifying benefit and, if not, whether she was estranged from B.
8. The tribunal referred to Kerr v Department for Social Development, reported as R 1/04 (SF). In that case (also concerning a funeral payment, where there was an issue about whether other relatives of a deceased person were in receipt of qualifying benefits) the House of Lords described social security adjudication as a ‘co-operative process of investigation in which both the claimant and the Department play their part’, adding that where information was available to the Department rather than the claimant, the Department must take the necessary steps to enable it to be traced.
9. In that case the Department had not investigated whether it was paying benefit to the other relatives. In those circumstances, the House of Lords held that “the Department cannot use its own failure to ask questions which would have led it to the right answer to defeat the claim” (paragraph 65). They also went on to consider a situation in which it was impossible to obtain some relevant information; in those circumstances they held that the effect of that depended on whether the information was relevant to the satisfying of a positive condition of entitlement or to the operation of a condition removing entitlement. They held that the provision in that case analogous to regulation 8(7) was a condition removing entitlement. The absence of evidence that the other relatives were not receiving benefit meant that the disqualifying condition was not shown to be satisfied.
10. The tribunal noted that the evidence that C was receiving a qualifying benefit was slim – a hearsay statement from C’s daughter – whereas there was a clear statement by the decision-maker that C was not. It preferred the evidence of the decision-maker. It went on to consider whether C was estranged from B at the time of B’s death. In that connection it noted the claimant’s evidence that there had been continuing contact between B and C and concluded that “although the bond between [B] and [the claimant] was stronger than the bond between [B] and [C] it could not reasonably be said that [C] had been estranged from [B]”.
The appeal to the Upper Tribunal
12. Judge Lane gave permission to appeal on the grounds that it was arguable that the tribunal had not exercised its inquisitorial function properly in failing to adjourn and require information from the Secretary of State about C’s entitlement to pension credit. She directed the Secretary of State to make a submission addressing that issue and stating whether he had been able to determine whether C or her husband was in receipt of pension credit, and indicated that she might substitute her own decision.
13. The Secretary of State’s submission supports the appeal to the extent of seeking a remission of the case to the First-tier Tribunal. I have to say that I am puzzled by paragraphs 11 and 12 of the submission which read
11. I submit that the Secretary of State is unable to determine from the information provided in the Submission file whether the claimant’s sister or husband is entitled to pension credit.
12. I respectfully submit that it would have been appropriate for the First-tier Tribunal to make a direction to the Secretary of State for further evidence gathering on adjournment of the hearing. Given that the Secretary of State then followed its directions, the First-tier Tribunal could have made its findings on the basis of the facts of the case, rather than on their absence.
14. It is not clear to me why the submission-writer considers that information about C’s benefit position could have been obtained by the Secretary of State pursuant to a direction from the First-tier Tribunal but cannot be obtained pursuant to a direction from the Upper Tribunal.
My decision
15. On a correct application of the law, issues of estrangement do not arise. The questions the tribunal ought to have determined are (a) whether C had closer contact with B than the claimant and, if not, (b) whether the claimant and C had equally close contact with B and neither C nor her husband was entitled to a qualifying benefit. If those questions had been addressed, the outcome would not necessarily have been the same.
16. I must therefore set the decision aside. The next question is whether I should remit the case to a First-tier Tribunal for it to address those issues or whether I should take the decision myself.
17. I have been tempted to make a decision awarding a funeral payment. This is for the following reasons: as to question (a) above, I find that C did not have closer contact with B than the claimant, on the basis of the claimant’s written and oral evidence to the First-tier Tribunal, from which the tribunal accepted that “the bond between [B] and [the claimant] was stronger than the bond between [B] and [C]”; in the light of that evidence and that conclusion, I do not consider that it could be established that it was in truth C who had the closer contact.
18. As regards question (b) above, I doubt whether the claimant and C had equally close contact with C; I suspect the claimant’s contact was closer. The claimant told the tribunal that though C would visit B, C was not prepared to help B during difficult times and that it was the claimant whom B would telephone in the middle of the night. There is further evidence in the claimant’s submission to the Upper Tribunal that C and B were not on speaking terms, but as that is inconsistent with the evidence to the tribunal about visits I do not consider that I can safely rely on it without hearing from the claimant directly. Accordingly, though I am able to decide that it could not be made out that C’s contact was closer than the claimant’s, I am not able confidently to decide whether it was less close.
20. That course would be in accordance with that part of the over-riding objective that requires cases to be dealt with in a proportionate way, avoiding delay, and requires the parties to help the tribunal further the over-riding objective (see rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008). A remission to the First-tier Tribunal delays the final disposal of the claim at increased public expense.
21. I am not doing so because I am not sufficiently confident that that would lead to a just result. It does seem that the decision-maker investigated at least some aspects of C’s benefit position: what appears to be her NI number is written on page 9 of the application form. Given that the claimant appears not to be suggesting that C received pension credit, I think it is likely that she was not. But in the light of what the claimant said in her submission to the Upper Tribunal (see paragraph 11 above), I strongly suspect that the decision-maker did not investigate HB or CTB. The only reason why I am not prepared to draw the inferences referred to in paragraph 19 above is that the Secretary of State has not been specifically directed to do so (though the claimant has said that she requested it).