CS-v-Department for Social Development (SF) [2012] NICom 329

Decision No:  C2/12-13(SF)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

SOCIAL FUND

Application by the Department for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 2 September 2011

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the Department for leave to appeal from the decision of the tribunal which sat at Belfast on 2 September 2011.

2.	An oral hearing was not requested by the Department.  However, I decided that I should hold an oral hearing of the application as matters of oral evidence were likely to arise.

3.	I grant leave to appeal and I allow the Department’s appeal.

4.	However, I consider it expedient under Article 15(8)(a)(ii) of the Social Security (NI) Order 1998 to make findings of fact and to give the decision the tribunal should have given, namely that the claimant satisfies the conditions of entitlement for a social fund funeral payment for the reasons set out below.

	REASONS

	Background

5.	The deceased died on 15 December 2010 and was buried on 7 January 2011.  On 14 March 2011 the claimant, who was the half-sister of the deceased, made a claim for a social fund funeral payment (SFFP).  On the claim form she stated that the deceased had another sister, SB, who was in receipt of working families tax credit (WFTC).  As SB was not in receipt of a disability or severe disability premium element of WTFC the claim was disallowed on the basis that the deceased had another immediate family member [sic], SB, who was not estranged from him at the date of death.  The applicant appealed.

6.	The appeal was heard by a tribunal consisting of a legally qualified member (LQM) sitting alone.  The tribunal allowed the appeal on the basis that the definition of “immediate family member” in the Social Fund Maternity and Funeral Expenses (General ) Regulations (NI) 2005 (“the Social Fund Regulations”) did not include a sister and therefore that the claimant could not be excluded from entitlement on that basis.

7.	The Department requested a statement of reasons for the tribunal’s decision and this was issued on 24 January 2012.  On 22 February 2012 the Department sought leave to appeal to the Social Security Commissioner from the LQM.  This was refused by a determination notified on 8 March 2012.  On 13 March 2012 the Department applied to a Commissioner for leave to appeal.

	Submissions

8.	The Department submits that the tribunal has erred in law as:

	(i)	It has failed to consider elements of the test of entitlement and in particular did not address sub-paragraphs (6) and (7) of regulation 8 of the Social Fund Regulations.

9.	The claimant was invited to make observations on the Department’s grounds.  She takes issue with the fact that the Department did not attend any of the tribunal hearings to make the points it is making now.  She submits that she was the person in closest contact with the deceased based on all the circumstances of their relationship.

	The legislation

10.	The provisions governing entitlement to a payment for funeral expenses are complex.  Much of the complexity stems from the provisions designed to limit entitlement and to establish priority for determining entitlement among family members and friends.  The principal provisions are regulations 7 and 8 of the Social Fund Regulations.  These read:

‘7.—(1) In these Regulations—

(a)	funeral payment” means a social fund payment to meet funeral expenses of a deceased person;

(b)	“responsible person” means the person who accepts responsibility for the funeral expenses.

(2) Subject to regulation 8, a funeral payment shall be made where each of the conditions referred to in paragraphs (3) to (9) is satisfied.

(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—

	(i)	income support,

	(ii)	state pension credit,

	(iii)	income-based jobseeker’s allowance,

	(iv)	working tax credit where the disability element or the severe disability element of working tax credit as specified in regulation 20(1)(b) and (f) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 is included in the award, 

	(v)	child tax credit payable at a rate higher than the family element, 

	(vi)	housing benefit, or

	(vii)	income-related employment and support allowance.

(5) The second condition is that the deceased was ordinarily resident in the United Kingdom at the date of his death.

(6) The third condition is that the claim is made within the prescribed time for claiming a funeral payment.

(7) The fourth condition is that the claimant is the responsible person or the partner of the responsible person.

(8) The fifth condition is that—

(a)	the responsible person was the partner of the deceased at the date of death; or

(b)	in a case where the deceased was a child and—

	(i)	there is no absent parent, or

	(ii)	there is an absent parent who, or whose partner, is a person to whom paragraph (4) applied as at the date of death, the responsible person was the person, or the partner of the person, responsible for that child for the purposes of Part IX of the Act as at the date of death; or

(c)	in a case where the deceased was a still-born child, the responsible person was a parent, or the partner of a parent, of that still-born child as at the date when the child was still-born; or

(d)	in a case where the deceased had no partner and neither sub-paragraph (b) nor (c) applies, the responsible person was an immediate family member of the deceased and it is reasonable for the responsible person to accept responsibility for those expenses; or

(e)	in a case where the deceased had no partner and none of sub-paragraphs (b), (c) and (d) apply, the responsible person was either—

	(i)	a close relative of the deceased, or

	(ii)	a close friend of the deceased,

	and it is reasonable for the responsible person to accept responsibility for the funeral expenses.

(9) The sixth condition is that the funeral takes place—

(a)	in a case where paragraph (10) applies, in a Member State of the European Union, Iceland, Liechtenstein, Norway or Switzerland;

(b)	in any other case, in the United Kingdom or, providing the deceased was normally resident in Northern Ireland, in the Republic of Ireland.

(10) This paragraph applies where the responsible person or his partner is—

(a)	a worker for the purposes of Council Directive No. 2004/38/EC;

(b)	a self-employed person for the purposes of that Directive;

(c)	a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive;

(d)	a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive; or

(e)	a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive.

8.—(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.

(2) Paragraph (1) shall not apply to disentitle the claimant from a funeral payment where the immediate family member who meets the description specified in sub-paragraph (c) of that paragraph is at the date of death—

(a)	a person who has not attained the age of 18;

(b)	a qualifying young person within the meaning of section 138 of the Act(a) (child and qualifying young person);

(c)	a person who has attained the age of 18 but not the age of 19 and who is attending a full-time course of advanced education, as defined in regulation 61 of the Income Support Regulations, or, as the case may be, a person aged 19 or over but under pensionable age who is attending a full-time course of study, as defined in that regulation, at an educational establishment;

(d)	a person in receipt of asylum support under section 95 of the Immigration and Asylum Act 1999;

(e)	a member of, and fully maintained by, a religious order; 

(f)	being detained in a prison or young offender’s centre and either that immediate family member or his partner is a person to whom regulation 7(4) applied immediately before that immediate family member was so detained;

(g)	a person who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 1975(a) or the Social Security (Hospital In-Patients) Regulations 1975 and either that immediate family member or his partner is a person to whom regulation 7(4) applied immediately before that immediate family member was first regarded as receiving such treatment; or

(h)	a person ordinarily resident outside the United Kingdom.

(3) Paragraphs (4) to (8) apply for the purposes of regulation 7(8)(d) and (e).

(4) The deceased shall be treated as having had no partner where the deceased had a partner at the date of death and —

(a)	no claim for funeral expenses is made by the partner in respect of the death of the deceased; and

(b)	that partner dies before the date upon which the deceased’s funeral takes place.

(5) Whether it is reasonable for the responsible person to accept responsibility for meeting the expenses of a funeral shall be determined by the nature and extent of his contact with the deceased.

(6) Paragraph (7) applies (subject to paragraph (8)) in a case where the deceased had one or more close relatives.

(7) If, on comparing the nature and extent of any close relative’s contact with the deceased and the nature and extent of the responsible person’s contact with the deceased, any such close relative was in—

(a)	closer contact with the deceased than the responsible person;

(b)	equally close contact with the deceased and neither that close relative nor his partner, if he has one, is a person to whom regulation 7(4) applies, 

the claimant shall not be entitled to a funeral payment.

(8) However, paragraph (7) shall not apply where the close relative who was in—

(a)	closer contact with the deceased than the responsible person, or (as the case may be)

(b)	equally close contact with the deceased,

is at the date of death of a description specified in any of sub-paragraphs (a) to (h) of paragraph (2).

(9) In a case where the responsible person is the partner of the person who was a close relative, immediate family member or (as the case may be) close friend of the deceased, references in the preceding provisions of this regulation, and in regulation 7(8)(d) and (e), to the responsible person are to be construed as references to the responsible person’s partner.’

	Hearing

11.	I held a hearing of the application.  Mrs Rush attended for the Department.  The claimant attended accompanied by her mother, AW, as representative.  I accepted that the Department had established an arguable case on the papers that the tribunal has erred in law and I granted leave to appeal.

12.	Mrs Rush submitted that the Department’s submission to the tribunal was in error.  The Department had submitted to the tribunal that the claimant’s entitlement to a SFFP was precluded because there was another “immediate family member”, SB, who was not estranged from the deceased.  The tribunal correctly identified that SB did not fall within the category of “immediate family member”.  The tribunal allowed the appeal on that basis.  However, the tribunal did not go on to consider the further question of whether entitlement was precluded by the operation of regulation 8(6) and (7) – which governed the application of the rules of entitlement to close relatives.  She accepted that the claimant, being the half-sister of the deceased, nevertheless came within the definition of close relative as his sister.  She submitted that the tribunal failed in its inquisitorial duty by not applying the required test where there was more than one close relative.

13.	AW for the claimant submitted that the tribunal was misled by the Department and questioned the basis for there not being a presenting officer (PO) at the hearing.  She relied upon extracts from Departmental guidance.  She further relied upon passages from the decision of the House of Lords in Kerr v Department of Social Development [2004] UKHL 23, and in particular on extracts from Lord Hope’s speech at paragraphs 9-16.

14.	Mrs Rush acknowledged that there should have been a PO and apologised, particularly since the appeal had previously adjourned on 21 July 2011 directing the attendance of a PO to deal with the issue of “immediate family member”.  A PO might have prevented the tribunal from going into error.  The tribunal was otherwise within its jurisdiction to determine the appeal without a PO being present.

	Assessment

15.	As can be seen from the above legislation the route to entitlement to a SFFP is not entirely straightforward.  The tribunal approached the appeal in good faith relying on the Department’s submission.  Unfortunately the submission was flawed.  As a result, the tribunal narrowed its consideration of the matters in contention to the question of whether there was an immediate family member who was not estranged from the deceased and not in receipt of a qualifying benefit as required by regulation 8(1).  A subsequent addendum to the Departmental submission did not address the error in the previous submission with any great clarity.

16.	The tribunal was correct to find that SB was not an immediate family member, as that term is defined in regulation 2(1) of the Social Fund Regulations as meaning “a parent, son or daughter”.  The deceased predeceased both his parents and had no children.  Evidence established that his father lived outside the United Kingdom, and therefore fell to be discounted by virtue of regulation 8(2)(h).  The tribunal further found that he was estranged from the deceased.  Evidence established that his mother was estranged from the deceased, and therefore fell to be discounted by virtue of regulation 8(1)(c).  However, that was not the end of the matter.  The tribunal was wrong to say that the claimant was not precluded from a SFFP under regulation 8, when all that had been established was that she was not precluded by regulation 8(1).

17.	The tribunal should have directed its attention to regulation 8(6).  The submission should have directed the tribunal to the relevance of that provision.   It sets out further requirements applying to close relatives.  The definition of “close relative” includes the “sister” of the deceased.  (Mrs Rush concedes that “sister” should be read as including “half-sister”.  When I consider that more distant relative categories such as “brother-in-law” and “step daughter-in-law” are defined as close relatives, I believe that that concession must be correct.)  The issue which required to be resolved by the tribunal was (i) whether the claimant’s half-sister, SB, was in closer contact with the deceased; or (ii) whether SB had been in equally close contact with the deceased and in addition was not receiving a benefit to which regulation 7(4) applies.  This was a matter for evidence.  However, the tribunal did not enquire into these questions.  It therefore failed in its inquisitorial duty.  As it reached a decision on the claimant’s entitlement to a SFFP which was insufficiently supported by evidence, I consider that the tribunal has erred in law.

	Disposal

18.	I asked the parties for submissions on how I should proceed, observing that if I was to remit the appeal to a new tribunal with directions, such a tribunal would consist of a LQM sitting alone.  The parties submitted that I should hear evidence and determine the matter.  In the circumstances, I find it expedient to make my own findings of fact, rather than to remit the matter to a new tribunal for reconsideration.

	Evidence

19.	I heard evidence from AW, who acted as the respondent’s representative but who was also her mother and the mother of the deceased.  I heard some evidence from the claimant.  AW further handed in documentary evidence in the form of a letter from Tony Kennedy, a project worker with “Addaction” – a substance abuse organisation.

20.	AW gave evidence which was substantially to the same effect as statements submitted from her and the claimant to the tribunal.  I acknowledge the difficulty for AW in giving evidence in relation to the difficult life circumstances and the death of her late son and wish to record my thanks to her.

21.	AW had three children, the deceased, born on 3 December 1975, SB, born on 15 November 1976, and the claimant, born on 20 February 1985.  The deceased left Northern Ireland to live in London in and around 1994.  Evidence was given that the claimant went to visit the deceased in London from as young an age as eight, during school holidays.  Her aunt lived in London.  There was a nine year age difference between them.  Evidence was given that SB moved to England in 2001 and lived in Hove, but had no contact with the deceased.  SB then went to the United States in and around 2003, not returning until July 2006.

22.	Evidence was given that the claimant and the deceased kept in contact by telephone.  However, during his period in London he had become addicted to alcohol and drugs.  The claimant visited the deceased in London in September 2006.  She was concerned by the downhill course of his alcohol and heroin addiction.  In October 2006 she persuaded him to return to Northern Ireland.  With financial assistance from AW they got a flat together where she hoped to help him with his addiction problems.  She described in her written statement that she became like his carer and found it difficult to get him to go out of the house.  AW would check on him regularly.  However, the deceased “gave in to” his addiction in January 2007.  An incident occurred in which the deceased and the claimant rowed, and the deceased and AW rowed, over his addiction.  In the course of the row the deceased was physically violent and bit AW.  Police were called.

23.	 AW had not seen the claimant since.  He travelled to the Republic of Ireland and then to England.  The applicant sought to keep in touch with him by birthday and Christmas cards sent through her aunt in London.  AW had changed her telephone number because of harassment.  She would have spoken to the deceased had he contacted her.  She subsequently learned that the deceased was HIV positive and had Hepatitis C.  She required to be screened herself because of the occasion on which she had been bitten.  She believed that the deceased did not contact her again because of his HIV infection.

24.	The applicant had some telephone contact with the deceased.  However, he was unable to keep a phone for any length of time because he would lose it or sell it.  No family member had seen him in person since January 2007.  Evidence was that the deceased was arrested for begging in a public place in London in October and in November 2010.  His body was found in his hostel accommodation in December 2010.

25.	A letter from the deceased’s project worker, Tony Kennedy, indicated that during his time as a key worker for the deceased he had discussed his longing for him to get back in touch with his sister, the claimant, and build some bridges.  He had been in the process of drafting a letter to the claimant when he was found dead.

	Findings

26.	Despite the addiction problems of the deceased and the age difference between them, I accept that there was a close relationship between him and his youngest sister, the claimant.  I find that the relationship between the claimant and his second sister, SB, cannot be said to have been equally close.  In particular, the claimant appears to have visited the deceased in London, to have had a main role in persuading him to return to Belfast for help from his family with his addictions, to have lived with him in shared accommodation albeit for a relatively short time, to have maintained telephone contact and to have kept in touch with cards on birthdays and Christmas and it also appears to be the case that the relationship was particularly important to the deceased in terms of the letter from Mr Kennedy.  I conclude that the claimant was not precluded from entitlement to a social fund funeral expenses payment by regulation 8(6), as she had a closer relationship with the deceased than SB.

27.	As the claimant meets each of the conditions of regulation 7(3)-(9) of the Social Fund Regulations, and as she is not precluded from entitlement by the conditions of regulation 8(1) or 8(6) of the Social Fund Regulations, I find that she is entitled to a funeral expenses payment in respect of the deceased.  I substitute this decision for that of the tribunal under Article 15(8)(a)(ii) of the Social Security (NI) Order 1998.

	The subsequent Departmental decision

28.	Mrs Rush pointed out that, subsequent to the tribunal decision of 2 September 2011, the Department had, on 27 September 2011, purported to make a revision decision reconsidering the original decision which had been appealed to the tribunal.  She submits that this is an error by the Department.

29.	I consider that Mrs Rush is correct.  By Article 17 of the Social Security (NI) Order 1998 the decision of the appeal tribunal is “final” in the sense that it has replaced the original decision of the Department in the adjudication process.  Article 17 is subject to any provision of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999.  None have application such as to permit the procedure which has taken place.  I consider that the purported revision of the original Departmental decision, which has been replaced by the decision of the tribunal on appeal, is unlawful.  The decision of 27 September 2011 is a nullity.

(signed):  O Stockman

Commissioner

20 September 2012