DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Ashford First-tier Tribunal dated 12 October 2009 under file reference 151/09/00696 involves an error on a point of law. The tribunal’s decision is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal. The appeal against the decision of the Secretary of State dated 9 October 2008 is therefore sent back to a new First-tier Tribunal to be re-heard. The new tribunal should have regard to the Directions below.

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1) The re-hearing will be at an oral hearing.

(2) The new First-tier Tribunal should be differently constituted from the one which heard this appeal on 12 October 2009.

(3) A copy of the submission by Helena Thackray, on behalf of the Secretary of State, supporting the appellant’s appeal to the Upper Tribunal, should be made available to the new tribunal, along with its annexed copy of the unreported Social Security Commissioner’s decision CIS/12344/1996.

(4) The new First-tier Tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

These Directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

The decision in summary

1. The appellant’s appeal to the Upper Tribunal is allowed. The decision of the Ashford First-tier Tribunal dated 12 October 2009 under file reference 151/09/00696 involves an error on a point of law. Unfortunately the Upper Tribunal is not in a position to make its own decision on the underlying appeal, and so the case has to be sent back for rehearing by a new tribunal. The fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication of the likely outcome of the rehearing before the First-tier Tribunal. That is entirely a matter for the new tribunal.

2. This appeal is supported by the Secretary of State’s representative in these proceedings, Helena Thackray. The appellant herself has not requested an oral hearing of this appeal before the Upper Tribunal. Her representative has also consented to a decision without reasons. I shall, however, give brief reasons, if only in fairness to the previous tribunal and for the benefit of the new tribunal. The new First-tier Tribunal is best placed to find the relevant facts.

3. I should stress that I can also well understand the appellant’s desire for the matter to be resolved as quickly as possible, given the difficult financial circumstances in which she finds herself, through no fault of her own, and as a result of the events that gave rise to this appeal, when she plainly acted from the best of motives.

The background to this appeal

4. The appellant, Mrs C, claimed a social fund funeral payment in respect of her close friend Mrs H. The funeral directors addressed the invoice to “the executors of the late Mrs H, c/o Mrs G”. Mrs G was Mrs H’s step-niece and apparently her formal next of kin. Putting it neutrally, and without deciding the issue, both Mrs C and Mrs G were involved in the arrangements with the funeral directors. Mrs C had also been closely involved with, and acted as carer for, Mrs H and her late husband for many years. Mrs C also referred to Mrs H as “Auntie”, as well as being like a mother to her, indicating the closeness of their relationship. It seems that Mrs G had relatively little contact with Mrs H.

5. The Secretary of State decided that Mrs C was not the “responsible person” and so refused her claim for a social fund funeral payment. This was said to be because “the bill is not in your name, which indicates that you are not the person who formed the contract with the funeral director”. As I indicated when granting permission to appeal, that statement was not strictly accurate as a matter of contract law.

6. The appellant’s representative forwarded a written submission arguing that Mrs C had jointly arranged and jointly entered into a legal obligation to pay for the funeral, and on that basis was the “responsible person”.

7. The First-tier Tribunal heard but dismissed the appeal on 12 October 2009. According to the Decision Notice, the tribunal found on the balance of probabilities that Mrs G and not Mrs C was the responsible person within the meaning of the Regulations. The tribunal expanded on that statement a little in its Statement of Reasons.

8. The appellant’s representative argued that the tribunal had made a mistake in law, essentially by failing to make sufficient findings of fact as to the nature of the agreement between Mrs C and Mrs G, and should have found Mrs C to be the responsible person. When granting permission to appeal, I observed as follows:

“2. On the face of it there were at least three possibilities open to the First-tier Tribunal in determining the nature of the contract with the funeral directors. (1) Mrs G entered into the contract (perhaps with Mrs C as her agent) and only Mrs G was legally responsible for the funeral costs; (2) Mrs C entered into the contract (perhaps with Mrs G as her agent) and only Mrs C was legally responsible for the funeral costs; (3) Mrs C and Mrs G jointly entered into the contract and both were legally responsible for the funeral costs.

3. The First-tier Tribunal evidently found that scenario (1) applied. However, did it make sufficient findings of fact and give sufficient reasons for that decision, and did it apply the relevant law on assuming responsibility for funeral costs correctly?

4. In particular, what evidence did the tribunal have for its finding that Mrs G was the person who entered into the contract with the funeral directors? True, the bill was sent to the executors c/o Mrs G (doc 18). Was there evidence that Mrs G was actually an executor? Moreover, the fact that a person’s name appears on the funeral director’s account is not in itself conclusive of legal responsibility (see the Commissioner’s decisions under file references CIS/12344/1996 and also R(IS) 6/98) – and, after all, contracts in general do not have to be in writing, contrary to popular misconception. To that extent the Department’s letter dated 27 November 2008 is not wholly accurate (doc 27).

5. So did the tribunal do enough to explain why scenario (1) applied and not either scenario (2) or (3)? I note that the tribunal “accepted Mrs C’s evidence as to what happened” (reasons, para 1). Mrs C’s evidence was that she and Mrs G arranged the funeral jointly. Of course, the relevant legal test is not actually who was responsible for arranging the funeral, but who was contractually responsible for the funeral costs. But Mrs C’s statements presumably encompassed both those concepts.”

The error of law involved in the tribunal’s decision

9. Helena Thackray, who has made a helpful submission on behalf of the Secretary of State, supports the appellant’s appeal to the Upper Tribunal. In summary, she argues that the tribunal erred in law in two respects.

10. First, the tribunal failed to consider the nature and extent of the appellant’s contact with Mrs H, that being a crucial aspect of deciding whether it was reasonable for her to accept responsibility for the funeral costs in accordance with regulation 7(8)(e) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 (SI 2005/3061). It is true that the issue of “reasonableness” is conceptually distinct from the question of whether the claimant is a “close friend” within the meaning of the Regulations. However, I regard the tribunal’s omission to deal with this point as not necessarily being fatal to its decision – it seems reasonably clear from the decision as a whole that the tribunal accepted Mrs C’s account of her relationship with Mrs H and so implicitly accepted that it was reasonable in all the circumstances for her to accept responsibility.

11. Secondly, however, Ms Thackray agrees that the tribunal failed to investigate further and establish whether, for example, Mrs G was acting as agent for Mrs C. She also agrees that the responsible person does not need to be named on the account and the funeral director need not know that the person instructing them is an agent. I agree with that submission and so find the tribunal’s decision to involve an error of law.

12. I therefore set aside the decision of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The appeal against the original decision of the Secretary of State will have to be reheard by a new tribunal (2007 Act, section 12(2)(b)(i)). The new tribunal must make full findings of fact as to the nature of the arrangements between Mrs C, Mrs G and the funeral directors.

13. I also direct that a copy of the submission by Helena Thackray, on behalf of the Secretary of State, supporting the appellant’s appeal to the Upper Tribunal (and found at pages 80-89 of the Upper Tribunal bundle) should be made available to the new tribunal, along with the annexed copy of the unreported Social Security Commissioner’s decision CIS/12344/1996.

If the further appeal is unsuccessful at the re-hearing

14. It is possible that the new tribunal may end up coming to the same conclusion as the previous tribunal. I express no view either way – it all depends on what the tribunal makes of all the evidence and the findings it makes. However, in that event I draw attention to my further comments when granting permission to appeal:

“Mrs C’s account has been consistent throughout, namely that she made a payment of £1,000 [in payment of the funeral director’s invoice] having taken advice from a social fund officer that she should make a payment and she would then get the money back from the social fund. There is, of course, no record of that conversation. However, the First-tier Tribunal clearly accepted Mrs C’s account (see doc 51 and 53). Mrs C’s representative is presumably aware that the doctrine of estoppel does not apply in this context, and that a DWP officer cannot be bound by any such statement as a matter of law. However, depending on the circumstances, and in the event that this appeal does not succeed, there may of course be a potential claim here for an ex gratia payment or for compensation for possible maladministration. However, I stress that I express no view one way or the other on that issue and any such claims made on such a basis are outside the jurisdiction of both the First-tier and the Upper Tribunal.”

15. Ms Thackray does not dissent from that analysis. Depending on the outcome of the re-hearing, the appellant’s representative will no doubt bear in mind the possibility of a potential claim for an ex gratia payment or compensation due to maladministration. Of course, even if the appeal succeeds, and a social fund funeral payment is made, the appellant may still be out of pocket because of charges levied by her building society on her overdraft.

Conclusion and outcome of this appeal to the Upper Tribunal

16. I allow the appellant’s appeal. A new tribunal must rehear the appeal against the Secretary of State’s refusal of the social fund application. My decision is therefore as set out above. The Directions set out above apply to the rehearing.

Signed on the original Nicholas Wikeley

on 2 June 2010 Judge of the Upper Tribunal