Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The appeal is allowed.

 

The decision of the tribunal given at Dundee on 28 February 2012 is set aside.

 

The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set our below.

 

REASONS  FOR DECISION

 

1. The Secretary of State has appealed against the decision of the tribunal which is recorded at page 48 and is in the following terms:

 

“The appeal is allowed.

 

The decision of the Secretary of State issued on 12/09/2011 is set aside.

 

The payment of £1737.52 from the Independent Living Fund should be disregarded from any deduction made from any Social Fund Funeral payment due.  The department can accordingly re do the calculation in respect of any funeral payment due to [the claimant]”

 

The facts and reasons given by the tribunal for their decision were as follows:

 

“The Facts

 

1. [the Deceased] died on 13 August 2011 and his funeral took place on 18 August 2011.

 

2. The Appellant made an application for a Social Fund Funeral payment which was received on 19 August 2011.  The Appellant was in receipt of a qualifying benefit as at the date of claim.

 

3. The Appellant was engaged as a carer for [the Deceased] prior to [the Deceased’s] death.

 

4. The total  possible funeral award would be £1547.00 being £847.00 specified expenses and £700.00 other funeral expenses.

 

5. A payment of £1737.52 from the Independent Living Fund was paid into the late [the Deceased’s] bank account on 15 August 2011.

 

6. Disability Living Allowance of £147.20 and Incapacity Benefit £82.87 were also due to the late [the Deceased] as at the date of death.

 

7. The money received from the Independent Living Fund was paid in arrears in respect of the care services provided to [the Deceased] for the period up until his date of death.

 

8. When [the Deceased] died, [the claimant] was owed money for the work he had done during the previous month.  All of the £1737.52 which was received after the date of death was used to pay for the care costs incurred by [the Deceased] prior to his date of death.

 

9. At the date of death, [the Deceased’s] bank account was overdrawn.”

 

“The Reasons

 

There was no dispute that the allowable funeral expenses in this case are £1547.00. There is also no dispute that the Appellant was in receipt of a qualifying benefit as at the date of the claim. The Respondent’s position is that the payment of £1737.52 from the Independent Living Fund falls to be deducted from the allowable funeral expenses as it forms part of [the Deceased’s] estate.  I however accepted the evidence from the Appellant that the payment from the Independent Living Fund was made in arrears and was in respect of [the Deceased’s] care up until the date of death.  I accordingly accept that although the money was paid into [the Deceased’s] bank account after the date of death this was in respect of the Appellant’s wages costs and [the Deceased’s] other care costs in the period prior to the date of death and accordingly did not form part of [the Deceased’s] estate.  The Appellant’s representative lodged information on the Independent Living Fund which confirms that the ILF is money to pay for support and services in respect of personal care.  The Appellant’s representative also drew my attention to paragraph 10 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 which state that the amount payable under “the Fund” shall be disregarded from any deduction made under the Regulation.  The Appellant’s representative further referred me to the Income Support (General) Regulations and the Independent Living Fund (2006) Order 2007 to the effect that “the Fund” included the Independent Living Fund.

 

In the circumstances I find that the sum of £1737.52 from the Independent Living Fund should not be deducted from any possible award.  The Department accordingly require to recalculate any funeral award due to the Appellant ignoring the payment from the Independent Living Fund.”

 

2. The tribunal made no findings as to the capacity in which the claimant made the claim for a funeral payment.  The claimant in the claim form at page 13 indicated that he did not have a partner as defined by the legislation. However this is contradicted at page 15 where in answer to the question:

 

“Was the person who died your partner who you were living with at the time of death?

 

He answered, “Yes”.

 

In respect of the question at pages 13 and 15 the same definition of partner is given namely:

 

“We use partner to mean

 

·                  A person you were married to, or a person you lived with as if you were married to them, or

 

·                  A  civil partner or a person you lived with as if you were civil partners.”

 

 

3. The matter is further confused in respect that in the facts of the case presented to the tribunal by the Department it was said:

 

“5. An officer of the Department contacted the Independent Living Fund on 18.11.2011.  It was established that the late [the Deceased] was the disabled person and [the claimant] his employee, that is, the person engaged to care for him.”

 

The claimant’s representative made the following written submission to the tribunal. 

 

“[The claimant] was the carer for his late partner, [the Deceased], who was in receipt of payments from the Independent Living Fund.  Independent Living Fund payments do not form part of the estate of the service user since the money does not belong to him.  The money is to be used for a specific purpose, namely to purchase personal care services after an assessment of care needs.  ILF terms and conditions state that monies used for anything other than designated purposes must be returned to the ILF.  We request that the Tribunal refer to the attached information sheet from www.direct.gov.uk and also the attached ILF application form with particular reference to the disclaimer in Section G which has to be signed by all recipients of ILF awards.  We dispute, therefore, the assertion that [the Deceased] is the ‘beneficial owner’ of the ILF money.  We would refer the Tribunal to Income Support (General) Regulations, Schedule 9, paragraph 39(1) and 7:

 

‘ …  only the capital where people are the beneficial owners is included when working out what capital they have.  People who are the beneficial owners of capital are usually the legal owners.  People who are the legal and beneficial owners of capital hold that capital for themselves and can use it as they wish’.

 

[The Deceased] died on 13^th August 2011 and ILF money was received on 15^th August.  The payments are always made in arrears and as [the Deceased’s] carer, this money represented [the claimant’s] wages.  If this money had not been earmarked, [the claimant] was obligated, legally, to send it back to the ILF.  We would ask that the Tribunal refer to a letter dated 30^th August, 2011 in which an ILF advisor confirms that, ‘ … there is no outstanding funding to be paid and we are not requesting any unspent funding from you on behalf of [the Deceased].

 

We would draw the Tribunal’s attention to Paragraph 10 of The Social Fund Maternity and Funeral Expenses (General) Regulations 2005 entitled, ‘Deductions from an award of a funeral payment’.  Subsection 2(d) states that the amount of any payment made under ‘The Fund’ shall be disregarded from any deduction made under this regulation’.  Paragraph 3 defines ‘The Fund’ as ‘having the same meaning as in regulation 2(1) of the income Support regulations.  Please consider the attached Independent Living Fund (2006) Order 2007.  Paragraph 3 of the Amendment of the Income Support (General) Regulations 1987:

 

In Schedule 10 (capital to be disregarded), in paragraph 29 for ‘the Fund or the Independent Living (1993) Fund’ substitute The Fund, the Independent Living (1993) Fund or the Independent Living Fund (2006).

 

We submit, therefore, that ILF monies paid to the late [the Deceased] ought to have been disregarded in the assessment of his assets after death.  We request that the Tribunal award [the claimant] a Social Fund Funeral Payment of £1537.”

 

 

 

4. The claimant also produced to the tribunal information from Direct.Gov on the Independent Living Fund.   That is recorded at page 33 under the heading:

 

“What you can use it for”

It is said:

 

“You can use your ILF money to pay for support and services.  You can use a care agency or employ your own personal assistant for tasks including:

 

·                 Toileting, bathing, washing and dressing

·                 Eating and drinking

·                 Cooking and shopping

·                 Laundry, cleaning and other household tasks”

 

“What you cannot use it for”

 

It is said:

 

“You cannot use payments from the Independent Living Fund to pay for:

 

·                 Care provided by a partner or relative (including in-laws) who lives with you”

 

There is also produced a draft Independent Living Fund Agreement Form at pages 34 to 37. In the draft Agreement it is said:

 

“I am aware of and agree that, I will have to pay back any ILF monies that are not used in  line with my obligations when using an ILF award.”

 

Also produced to the tribunal was a letter from the Independent Living Fund dated 30 August 2011 where it is said:

 

“Thank you for your telephone call on 30 August 2011.

 

I can confirm there is no outstanding funding to be paid and we are not requesting any unspent funding from you on behalf of (the Deceased).”

 

5. The grounds of appeal by the Secretary of State are within short compass.  They are in the following terms:

 

“In this case the claimant made a claim for a funeral payment in respect of his partner.  The deceased had in his bank account at the date of death arrears of benefit being Incapacity Benefit and a payment of £1737.52 from the independent Living Fund.  The Decision Maker determined that the claimant was not entitled to a funeral payment as the assets of the deceased exceeded the award in accordance with Regulation 10(1)(a) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005.

 

 

 

 

 

 

The FtT found that the Independent Living Fund should not be taken into account as an asset of the deceased and should be disregarded in accordance with Regulation 10(2) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005.

 

Regulation 10(2) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 lists the exemptions that fall to be disregarded for funeral payment purposes.  The regulations lists various “Trusts” and “Funds”, however, the Independent Living Fund is not one that falls to be disregarded under this regulation and therefore has to be taken into account as an asset of the deceased.  The FtT therefore erred in law in finding that this payment should be disregarded.”

 

The response from the claimant was equally a short:

“The Secretary of State’s submission that the Independent Living Fund is not included in Regulation 10(2) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 is not disputed, however the statement ‘and therefore has to be  taken into account as an asset of the deceased’ is disputed.  (para 4 doc 64).

 

The FtT accepted that the payment of the ILF monies was dependent on the use it was put to, and because of this conditionality that it was not to be considered an asset of the deceased. (Doc 51).”

 

6. It is apparent from the claimant’s response that he has altered the position that he took the before the tribunal.  The claimant, in my view properly, now accepts the Secretary of State’s submission that payments from the Independent Living Fund do not fall to be disregarded under Regulation 10(2) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005.   It is to be noted that under regulation 10(2) of the regulations that the Independent Living Fund is not included in the payments to be disregarded.  It is also apparent that “the Fund” according to regulation 10(3) has the same meaning as in regulation 2(1) of the Income Support (General) Regulations.

 

The Fund is defined there as meaning “Monies made available from time to time from the Secretary of State for the benefit of persons eligible for payments in accordance with the provisions of the Scheme established by him on 24 April 1992 or, in Scotland,  on 10 April 1992”.  In the same Regulations:

 

“The Independent Living Fund (2006)” is said to mean:

 

“The Trust of that name established by deed dated 10 April 2006 and made between the Secretary of State for Work and Pensions of the one part and Mary Rosemary Cooper, Michael Beresford Boyall and Marie Theresa Martin of the other part;”

 

It is thus beyond doubt that “the Fund” is different from the Independent Living Fund.  They are each set up by separate instruments.

 

 

 

 

 

 

 

 

 

7. It is not at all clear from  the tribunal’s reasons what the basis of their decision was. On the one hand it appears that they seem to consider that the payment from the Independent Living Fund paid into the deceased’s bank account on 15 August 2011 did not form part of the deceased’s estate.  On the other hand they also appear to accept that the sum paid into the deceased’s account should be disregarded from any deduction made under the Social Fund Maternity and Funeral Expenses Regulations.  I reach that conclusion because having set out both their finding that the sum paid did not form part of the deceased’s estate and narrated the submission by the claimant which is now accepted to be incorrect, they say:

 

“In the circumstances I find that the sum of £1,737.52 from the Independent Living Fund should not be deducted from any possible award.”

 

It thus follows that their apparent acceptance of the erroneous submission made to them and the fact that this factor, at least in part, formed the basis of their decision renders it erroneous in law.

 

8. I am further and in any event not satisfied that the tribunal were on the facts found by them entitled to reach the conclusion which they did.  The only finding made by the tribunal in respect of the relationship between the claimant and the deceased is that made at finding 3.  Whilst it appears to have been accepted by the appellant that the claimant was the partner as defined by the Regulations of the deceased there is a contradiction as to the claimant’s position within the claim form. 

 

9. The fifth condition for entitlement to a funeral payment is set out at paragraph 7(8) of the Regulations.  It is not clear whether the tribunal accepted the claimant as the responsible person to meet the funeral expenses on the basis of Regulation 7(8)(a) or (e).  That is a matter of importance because sub-paragraph (e) can only apply where the deceased had no partner and none of sub-paragraphs (b), (c) or (d) applied. The contradiction as to whether the claimant was the partner of the deceased was not the subject of a finding in fact by the tribunal.  This is material as the evidence produced by the claimant about the Independent Living Fund was to the effect that payments by the Independent Living Fund were not to be made to a partner.  The failure to resolve this contradiction amounts to an error in  law.

 

10. In addition I am satisfied that the tribunal erred in law for failing to set out a proper legal basis for their assertion that the sum paid to the deceased two days after his death did not fall into his estate.  The tribunal did not give any indication as to what they made of the letter to the claimant by the Independent Living Fund on 30 August 2011 indicating that they were not requesting any unspent funding from the claimant on behalf of the deceased.   The trustees of the fund in that letter are discharging an obligation to return funding.  That would tend to suggest that the payment had become part of the claimant’s estate.  On the face of the draft agreement document produced it would appear that the money paid by the Independent Living Fund after the deceased’s death falls within the estate of the deceased in respect that the draft Agreement says:

 

“I am aware of and agree that, I will have to pay back any ILF monies that are not used in line with my obligations when using an ILF award.”

 

That would appear to suggest an obligation to make repayment rather than a suggestion that the money did not form part of the moveable property of the deceased himself. 

 

 

 

 

 

 

 

11. Having determined that the tribunal’s decision errs in law and having set it aside I do not accept the Secretary of State’s submission that I remake the decision as suggested by him.  I remit the case to a freshly constituted tribunal.  That tribunal will require to establish the basis, if any, of the claimant’s entitlement to a funeral payment under regulation 7 of the 2005 Regulations.  It is important that they make a finding in fact, if they determine that he is a responsible person in terms of regulation 7(1)(b), as to the capacity in which he is such namely whether he satisfies the conditions set out in paragraph 7(8)(a) or (e).  The contradiction in the claim form requires to be resolved.  In doing so they will have to deal with the evidence in the Independent Living Fund document that the payment cannot be used to make payments to a partner.  If the claimant’s entitlement is established, I direct the  freshly constituted tribunal that the payment from the Independent Living Fund is not one which falls to be disregarded under regulation 10(2) of the Regulations. In the event that they find that the claimant is entitled to a funeral payment and regulation 10(1) applies regulation 10(1)(a) would appear to be the relevant paragraph in the circumstances of this case.   A copy of the Independent Living Fund Agreement between the deceased and the trustees should be obtained, along with the supporting documents referred to in the drafts at page 36.   I direct them that the payment from the Independent Living Fund was part of the moveable property of the deceased.

 

 

 

 

 

 

 

 

D J MAY QC

Judge of the Upper Tribunal

Date: