Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/3949/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Robin C A White

Decision: The decision of the tribunal of 17 December 2012 is not erroneous in law. I dismiss this appeal.

REASONS FOR DECISION

Does there need to be an oral hearing in this appeal?

1.     I note that, in giving case management directions on 14 July 2014, Judge Gray said “the matter will require an oral hearing.” I also note that neither party has requested an oral hearing; indeed there has (unsurprisingly) been no response at all from the respondent.

2.     On examination of the file, I concluded that the Secretary of State had raised all the pertinent issues, and I could not see that either the issues already raised or any further matters required exploration in an oral hearing.

3.     I have decided that it is appropriate for me to determine this appeal on the basis of the submissions before me without an oral hearing.

Background and context

4.     For ease of comprehension, I refer in this decision to the appellant as “the Secretary of State” and to the respondent as “the claimant”.

5.     The claimant is the separated spouse of her husband (“the deceased”), who died on 14 July 2012 and whose funeral took place on 20 July 2012. The claimant undertook responsibility for the funeral.

6.     The claimant made a claim for a social fund funeral payment on 26 July 2012.

7.     That claim was initially refused on 1 August 2012 on the grounds that the claimant was not in receipt of a qualifying benefit, but it has subsequently been established that she had an award of a contribution-based jobseeker’s allowance which had migrated to an award of an income-based jobseeker’s allowance as at the date of her claim.

8.     The decision maker has subsequently argued that the claimant has no entitlement on the grounds that, as a separated spouse, the claimant was a close friend and there was an immediate family member of the deceased, namely a son (“the son”), who was not in receipt of a qualifying benefit, and was not estranged from the deceased at the date of his death.

9.     The son was awarded income-based jobseeker’s allowance from 14 July 2012, although the first day on which he received any benefit was 17 July 2012. The benefit was in payment from 17 July 2012 until at least 30 September 2012.

10.  The claimant appealed against the decision on 6 August 2012 on the grounds that she was in receipt of income-based jobseeker’s allowance.

11.  The decision was reconsidered on 11 October 2012 but was not changed. It should have been revised to show the new basis on which the decision maker concluded that the claimant had no entitlement.

12.  The appeal came before the tribunal on 17 December 2012. The claimant attended but was not represented. The Secretary of State was represented. There is a full and helpful record of the proceedings. The outcome of the appeal was that the decision of 1 August 2012 was set aside and a fresh decision made that the claimant was entitled to a social fund funeral payment. It was further decided that the son did not constitute an immediate family member who could take responsibility for the funeral since he had an award of income-based jobseeker’s allowance. A statement of reasons was subsequently provided.

13.  The appeal by the Secretary of State now comes before me with the permission of a judge of the First-tier Tribunal.

The grounds of appeal

14.  The Secretary of State’s grounds of appeal are that the claimant was not entitled to a social fund funeral payment because there was a son who constituted an immediate family member who was not in receipt of a qualifying benefit and was not estranged from the deceased. The son was not in receipt of a qualifying benefit as at the date of his father’s death since the day of his death was one of the ‘waiting days’ in respect of which there is no entitlement to payment of a jobseeker’s allowance.

Did the tribunal err in law?

15.  There is no dispute in this case that the claimant, as the separated spouse of the deceased, is what is described as a “close friend” of the deceased in The Social Fund Maternity and  Funeral Expenses (General) Regulations 2005 (“the 2005 Regulations”).

16.  Nor is there any dispute that the claimant did, in fact, take responsibility for the funeral arrangements of the deceased.

17.  The deceased had no other immediate family than two children: a son and a daughter. The issue in dispute concerns the status of the son. There are no express findings of fact about the daughter, but the record of proceedings records the son’s evidence as follows:

Sister had harsher relationship and she didn’t go round as much as I did. She stopped speaking to Dad and I moved in.

18.  It seems that the daughter was living in Holland at the time of the deceased’s death. The Secretary of State has taken no point in relation to her, presumably on the basis that she was living abroad and the evidence strongly suggested that she was estranged from him. I am proceeding on this basis.

19.  Regulation 7(3) of the 2005 Regulations fixes the date on which the responsible person or his partner is in receipt of a qualifying benefit as the date of claim. In this case, that is 27 July 2012. As will become apparent the precise wording of the regulation is significant. Regulation 7(3) and (4) provides:

(3) The first condition is that, in respect of the date of the claim for a funeral payment, the responsible person or his partner is a person to whom paragraph (4) applies.

(4) This paragraph applies to a person—

(a) who has an award of—

…

(iii) income-based jobseeker’s allowance;

… .

20.  However, Regulation 8(1) of the 2005 Regulations provides:

(1) Subject to paragraph (2), the claimant shall not be entitled to a funeral payment where the responsible person is an immediate family member, a close relative or a close friend of the deceased and—

(a) there are one or more immediate family members of the deceased;

(b) one or more of those immediate family members or their partners are not persons to whom regulation 7(4) applied as at the date of death; and

(c) any of the immediate family members referred to in sub-paragraph (b) was not estranged from the deceased at the date of his death.

21.  The date of the deceased’s death was 14 July 2012. The first of the three waiting days in respect of the son’s claim for an income-based jobseeker’s allowance was 14 July 2012.

22.  The essence of the issue between the Secretary of State and the First-tier Tribunal is whether it can properly be said that a person in the position of the son, as at 14 July 2012, had “an award” of a qualifying benefit.

23.  The Secretary of State is correct that in the normal case a person is disentitled to receive any payment of a jobseeker’s allowance for the first three days. Paragraph 4 of Schedule 1 to the Jobseekers Act 1995 provides:

Except in prescribed circumstances, a person is not entitled to a jobseeker’s allowance in respect of a prescribed number of days at the beginning of a jobseeker’s period.

24.  I make two observations on this provision. Firstly, as the First-tier Tribunal has noted, Regulation 7 of the 2005 Regulations refers to an award, not to entitlement. Secondly, there are circumstances where an award of a jobseeker’s allowance does not carry with it non-payment for waiting days. Paragraph 4 of Schedule 1 is prefaced with the words “Except in prescribed circumstances”.

25.  It has also been pointed out in the observations to me that the Housing Benefit Regulations contain a provision which treats the waiting days as days of an award of an income-based jobseeker’s allowance, and that sanctions are not imposed on jobseekers during the waiting days since there is nothing on which a sanction could bite.

26.  I am not convinced that these observations advance matters much. The provision in the Housing Benefit Regulations can be read as an “avoidance of doubt” provision rather than as an indication that a person does not have an award for the waiting days. Furthermore, it could be argued that there can be no question of sanctions if a person does not have an award of jobseeker’s allowance. The absence of sanctions during the waiting days does not seem to me to assist at all in determining when it can be said that a person has an award of income-based jobseeker’s allowance.

27.  My starting point is to ask myself what Regulation 7(3) and (4)—and to a certain extent also Regulation 8(1)—is seeking to achieve. Regulation 7(3) and (4) is concerned to establish that a person undertaking responsibility for a funeral does not have sufficient resources to pay for it without the assistance of a funeral payment. Those who have an award of one of the qualifying benefits are regarded as having insufficient resources which justifies an award of a funeral payment. A person’s resource position is the same on the first of the waiting days for a jobseeker’s allowance as on the first day in respect of which they receive a payment of a jobseeker’s allowance.

28.  I am also satisfied that it is appropriate to use the term “award” in the context of a jobseeker’s allowance in respect of the three waiting days because no question arises of applying the provisions of Schedule 1 to the Jobseeker’s Act 1995 unless a person has an award of that benefit. A person has an award of a jobseeker’s allowance for the waiting days but is “not entitled” to payment of the allowance where his or her award is subject to the waiting days provision.

29.  I also observe that jobseeker’s allowance is a weekly benefit, and the award would be for a week, although the waiting days would not entitle a claimant to payment of the benefit.

30.  Accordingly, I agree with the conclusions reached by the First-tier Tribunal on this question, and disagree with the position for which the Secretary of State’s representative argues.

31.  The First-tier Tribunal has not erred in law, and I dismiss this appeal.

Signed on the original Robin C A White

on 19 March 2015 Judge of the Upper Tribunal