Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CIS/219/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 3/11/09 under reference CIS/219/2010 is not set aside. This is because, although it contained an error of law, the outcome is the exactly the same.

The appellant is entitled to a social fund funeral payment of £866.05 in respect of his late father.

REASONS FOR DECISION

1. The appellant brought this appeal with my permission. He disputed the amount of a funeral payment in respect of his late father, Mr Thomas Frost.

2. The full invoice for the funeral was £2724.84. The appellant thought that this entire sum should be paid, apart from the cost of the music played at the crematorium and an obituary notice. The cost of the music was not itemised in the invoice from the funeral home, but the crematorium fee was £460. The remainder of the invoice included the funeral director’s fees, hearse, limousine, care of the deceased, coffin, minister’s fee and obituary. The decision maker made a payment of £435 for the crematorium fee, having knocked off £25 for the music as a non-allowable cost. She awarded £700, the maximum allowable for miscellaneous funeral costs but deducted £268.95 which was in the deceased’s estate. This represented benefit paid to the deceased whilst in hospital, before he died. This left £866.05.

3. I gave permission to appeal on the basis that the tribunal had not looked at all of the items for which the appellant might be entitled to payment fully. It had not explained why the benefit money in the deceased’s bank account had to be taken into consideration, whether the £460 for the crematorium fee had been properly restricted to £435 because of the deduction for music and whether the appellant was entitled to some transportation costs to the funeral and home under regulation 9(2)(f) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005.

4. I directed the appellant to provide evidence about the cost of his trip to the funeral home and back from the cemetery by alternative forms of transport and also to specify the cost of the music. The latter might have been rather less than £25. I indicated that, in the absence of a reply, I would take £25 to be a reasonable amount for the music and therefore properly deductible.

5. Although these items would not amount to very much they would, if payable help defray the costs a little more. The appellant did not, however, provide the information. He wrote that he did not understand the legal meaning. If the appellant did not understand the legal meaning, he should have obtained legal advice from a welfare rights organisation. Instead he did nothing to establish other elements of his claim.

6. The Secretary of State supported the appeal in the limited sense that the tribunal did not explore the issues sufficiently, but submitted that the tribunal could not have made any other decision on the evidence before it. I have come to the conclusion that the Secretary of State is right; and even though there was an error of law, the appellant has not shown that any other amount was payable. I have therefore decided not to set aside the decision.

7. The appellant is wrong to think that the whole cost of the funeral is covered by a social fund funeral payment. The amount of the payment is strictly regulated under the Social Fund Maternity and Funeral Expenses (General) Regulations 2005, in particular regulation 9. On the facts of this case, he was entitled to the cremation costs (reg. 9(2)(b)) and to any other funeral expenses to a total of £700 (reg. 9(2)(g). The funeral expenses under these heads do not include cover for the claimant (‘the responsible person’) to attend the funeral. Limited transportation costs are covered by reg. 9(2)(f) and 9(9): the claimant is allowed the necessary cost of one return journey from home … for attendance at the place where the costs of cremation would have been incurred. This would not have allowed him the cost of a limousine, which is not a necessary mode of transport (CIS/2970/06), but could have allowed him the cost of a reasonable form of transport to the crematorium and home. The burden of proof was on him to produce the evidence. He did not do so and I am not prepared to guess for him.

The money in his late father’s account had to be deducted from the cost of the funeral under reg. 10(1)(a) because it constituted an asset of the deceased which was available to the responsible person.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 23 August 2010