Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CIS/1059/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 15 October 2013 under number SC946/13/09767 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

Directions

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

2. The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.

3. The new First-tier Tribunal must undertake a complete reconsideration of the appeal.

4. The Secretary of State shall send to the relevant HMCTS office as soon as possible written evidence to establish whether regulation 7(4)(b) applied to AC at the date of the deceased’s death.  The parties should also send as soon as possible any other relevant written evidence, if there is any.  If they cannot send that evidence within one month of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

1.    The issue in this appeal before the First-tier Tribunal (“the tribunal”) was whether the appellant was entitled to a funeral payment from the social fund in respect of her late mother’s funeral. 

2.    The appellant’s mother (“the deceased”) died on 28 February 2013.  The appellant took responsibility for arranging the funeral and applied for a funeral payment.  That application was refused by the Secretary of State on 21 March 2013.  There is no copy of the Secretary of State’s decision in the file.  The appellant’s letter of appeal (page 7) states that the reason given to her was that the deceased’s father should pay for the funeral.  In his response to the appeal the Secretary of State asserted that there were two immediate family members of the deceased who were not in receipt of qualifying benefits at the time of her death and who were not estranged from her. The two family members in question were the deceased’s father (“Mr AEC”) and one of the deceased’s sons (“AC”).

3.    The appellant appealed to the First-tier Tribunal against the Secretary of State’s decision.  On 15 October 2013 the tribunal refused the appeal and confirmed the Secretary of State’s decision on the ground that the deceased’s father, Mr AEC, was not estranged from the deceased at the time of her death and so the appellant was not entitled to a funeral payment.

4.    The appellant appealed to the Upper Tribunal.  On 14 July 2014 I gave permission to appeal on the ground that the First-tier Tribunal arguably failed to make sufficient findings of fact to justify the conclusion that the deceased and Mr AEC were not estranged at the time of death and, in particular, that the tribunal should have considered the relationship between the deceased and her father not only at the end of her life but in the context of their relationship over a longer period of time.  

5.    By written submissions dated 17 September 2014 the Secretary of State supports the appeal for those reasons.  However, the Secretary of State submits that the evidence shows that the deceased’s son (AC) was an immediate family member who was not in receipt of a qualifying benefit nor estranged from the deceased at the time of her death, thus disqualifying the appellant from entitlement to a funeral payment.  The Secretary of State requests that I set aside the First-tier Tribunal decision and substitute a decision that the appellant was not entitled to a funeral payment.

6.    Neither party has requested an oral hearing and I am satisfied that I can fairly determine this appeal on consideration of the papers.

Legal framework

7.    The conditions of entitlement to a funeral payment from the social fund are set out in regulations 7 and 8 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 (“the Social Fund Regulations”).  The principal conditions of entitlement are in regulation 7 and are not in dispute here.

8.    Regulation 8 qualifies the conditions in regulation 7.  Regulation 8(1) 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.

9.    Regulation 3(1) defines “immediate family member” as a parent, son or daughter. Regulation 7(4) referred to at subparagraph (b) above applies to persons in receipt of qualifying benefits or (prior to April 2013) a person in respect of whom council tax benefit in the form of a second adult rebate could have been awarded.  Regulation 8(2) sets out various exceptions to the exclusion in regulation 8(1), none of which applied in this case.

Whether Mr AEC was estranged from the deceased at the time of death

10. There was no dispute that Mr AEC was not in receipt of a qualifying benefit at the time of the deceased’s death.  The issue was whether he was estranged from the deceased at that time.  The tribunal’s findings as to the relationship between the deceased and Mr AEC were as follows:

“9. …Her mother had not had a close relationship with her father for most of her life but he had visited her a couple of times in hospital and had come to visit her on the Thursday that she died but by that time he had arrived, she was already dead.  [The appellant’s] mother had accepted the visits from her father, [Mr AEC], while she was in hospital.

10. ….I decided that although he had not been close to his daughter for most of her life, he was not estranged from her when he died.”

11. In her letter of appeal the appellant had explained the relationship between the deceased and Mr AEC as follows:

“…you could say that he was estranged from her  most her life from her being in care as a child and him being abusive to her when she was young they have never been close.  And sadly the first time he ever stepped into her house was the day she died.” [sic]

12. In further written evidence to the tribunal (page 26) the appellant explained the information she had given to the DWP during a phone call on the morning after her mother’s death. She said she was in shock at the time and continued:

 “…[Mr AEC] had visited my mother several times before she died.  The answer given was an indication of the months leading up to her death and no way representative of their interactions over the duration of her adult life.  [Mr AEC] did not know where my mother lived until he found out that she had cancer.  My mother visited [Mr AEC’s] house maybe once a year to see my grandmother, during which time she would rarely speak to him.  There was simply no relationship between them to speak of.”

13. At the tribunal hearing the appellant said that her mother had accepted Mr AEC’s visits in hospital, that they were not close for most of her life and only had some renewed contact when she was dying.

14. The word ‘estranged’ is not defined in the legislation. The word must bear its ordinary meaning in its context. See Secretary of State for Work and Pensions v Moyna [2003] 1 WLR 1929 (also reported as R(DLA) 7/03), at paragraphs 23 to 25.  In social security law the concept of estrangement is relevant in contexts other than entitlement to funeral payments and the different contexts have not surprisingly resulted in different approaches to the term. In CIS/4096/2005 Commissioner Jupp reviewed a number of Commissioners’ decisions addressing the meaning of the words “estranged” and concluded at paragraph 21:

“each Commissioner has approached the word “estranged” by giving its ordinary meaning within the context before him or her, and some of the emphases appropriate for the individual case have been lifted to the status of general propositions. There appears to be little divergence of principle between them.”

15. Although the Upper Tribunal should not seek to define the word, it is appropriate to give guidance as to its application.  With that in mind, it is instructive to consider Commissioner Jupp’s review of authorities on estrangement in CIS/4096/2005.  A number of cases cited by her refer to estrangement connoting “emotional disharmony” (R(SB)2/87 cited by Commissoner Jupp at paragraph 10) and “alienation in feeling or affection” (CIS/5119/1997, cited at paragraph 11).  But as Commissioner Levenson observed in CIS/1886/1999, there may be other meanings and he noted dictionary definitions of “to cut off, remove”.

16. Commissioner Jupp held that estrangement does not generally require mutuality.  She said at paragraph 20:

“…Disharmony can arise from one person’s attitude to another, even though, as said by several Commissioners and Deputy Commissioners, the other party may not wish the situation to be as it is. “

17. I agree with this.  If one person is cut off from or alienated from the other, then the two people may be estranged. 

18. In the present case the appellant had explained that, until shortly before her death, the deceased and Mr AEC had little to do with each other, that any contact was incidental to the visits by the deceased to her mother and that there was no affection between the deceased and Mr AEC. If the tribunal had accepted that evidence, I consider it would have been open to it to conclude that the deceased and Mr AEC had been estranged. The tribunal however focussed almost exclusively on the fact that Mr AEC visited the deceased during the last period of her life when she was dying. The tribunal’s conclusion at paragraph 10 of its statement of reasons was in essence that, whatever had happened in the past, those visits meant that by the time of her death the deceased and her father were not estranged.

19. In my judgment the tribunal was wrong to focus on the fact of those visits having taken place. If they had previously been estranged, it does not necessarily follow from those visits that Mr AEC and his mother ceased to be estranged.  A determination of whether they did so required much more detailed fact-finding as to the whole relationship between the two and the circumstances and nature of the visits.  The tribunal should have determined, following relevant fact-finding, whether the deceased and Mr AEC had been estranged prior to those visits and/or whether, despite those visits, they continued to be estranged. As illustrated by the Northern Ireland decision of R 1/02 (SF), renewed contact between those concerned does not necessarily end estrangement.  It is a question of fact in each case.

20. For instance, it may be that Mr AEC wished to be reconciled with the deceased but that she did not wish to be reconciled with him.  The appellant told the tribunal that the deceased had accepted the visits, but why did she do so?  Her reasons may not have reflected a desire for reconciliation, and a reconciliation may not have been achieved.  It has to be born in mind that on the appellant’s account the deceased may have had deep-seated grievances against her father. In her grounds of appeal to this tribunal the appellant has said that at the time of her death the deceased and Mr AEC were not on speaking terms and that, although he desired reconciliation, she did not. 

21. These are matters which the tribunal should have explored with the appellant at the hearing and should have addressed in its reasons.  It failed to do so and it was consequently an error of law for it to conclude that the deceased and Mr AEC were not estranged at the time of her death.

22. By reason of the above error of law, I set aside the First-tier Tribunal’s decision.

Whether to substitute a decision or remit to the First-tier Tribunal.

23. As I have said, the Secretary of State has invited me to substitute a decision that the appellant was not entitled to a funeral payment because AC (the deceased’s son) was an immediate family member who was not estranged from the deceased and to whom regulation 7(4) did not apply at the date of death.

24. There does not appear to be any dispute that AC was not estranged from the deceased.  The appellant has not asserted otherwise and she said that he lived with the deceased. 

25. Despite this, I am not able to make the decision sought by the Secretary of State because the evidence presently available does not enable me to find, on balance of probability, that regulation 7(4) did not apply to AC. 

26. I agree that regulation 7(4)(a) did not apply to AC.  Although he was applying for housing benefit, when the Secretary of State determined the appellant’s entitlement to a funeral payment AC did not have an award of housing benefit or any other qualifying benefit covering the date of death (or, it seems, at all). I contrast the position in CIS/4096/2005 where the claimant did not have an award of qualifying benefit at the date of claim (the relevant date in that case) but such an award had been made covering the date of claim by the time the Secretary of State determined the application for a funeral payment.

27. The deceased died before the Social Fund Regulations were amended by the Social Fund (Maternity and Funeral Expenses) Amendment Regulations 2013. At the time of her death, regulation 7(4)(b) applied to a person in respect of whom an award of alternative maximum council tax benefit (also known as the second adult rebate) could be made under section 131(6) and (7) of the Social Security Contributions and Benefits Act 1992.  Satisfaction of this condition did not require an award of the rebate to have been made as long as the conditions of entitlement were fulfilled – see  R(IS) 11/05.

28. The Secretary of State does not appear to have considered whether regulation 7(4)(b) applied to AC.  It is not addressed in the Secretary of State’s response to the appeal to the First-tier Tribunal nor in his response to this appeal.   In a letter dated 28 March 2013 (page 19) the appellant said that AC worked part-time on the minimum wage.  I do not know whether the deceased had claimed council tax benefit.  Had she done so, the available information raises the possibility that regulation 7(4)(b) of the Social Fund Regulations applied to AC at the time of his mother’s death. 

29. Further findings of fact are needed to determine that issue, upon which hinges the determination of whether regulation 8(1)(b) applied to AC.  

Conclusion

30. There will need to be a fresh hearing before a new First-tier Tribunal.  The new tribunal will have to consider all issues as to the appellant’s entitlement to a funeral payment, including whether Mr AEC or AC were persons to whom regulation 8(1) of the Social Fund Regulations applied.  In relation to Mr AEC this includes the question of estrangement from the deceased at the time of death. In relation to AC, it includes the application of regulation 7(4)(b) as it was at the time of death. The new Tribunal 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 conclusion to the previous tribunal.

Signed on the original Kate Markus QC

On 22 January 2015 Judge of the Upper Tribunal