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[2002] UKSSCSC CIS_4498_2001 (19 June 2002)

JMH/RC/CW

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THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/4498/2001

SOCIAL SECURITY ACT 1998

APPEAL FROM DECISION OF AN APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER J M HENTY


 


1. The appeal is dismissed.
2. This is an appeal with the leave of the Commissioner from the decision of an appeal tribunal dated 2.8.01.
3. The claimant was at all material times in receipt of working family tax credit, a qualifying benefit for the purposes of regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987. His mother died on 7.4.2001, and the claimant accepted responsibility for his mother's funeral expenses. He has one sibling, alive, namely a sister.
4. On 20.4.01, he made a claim for a funeral payment out of the Social Fund, which was turned down by the Secretary of State and, on appeal, by the appeal tribunal, on the grounds that his sister, although normally, and for some years, resident in Australia, was not in receipt of a qualifying benefit and was not estranged from her mother.
5. In his grounds of appeal to the tribunal the claimant stated i.e:

"I do not agree with your decision because my only sister....lives in Australia. She is a pensioner and has lived in Australia for the last 10 years. When my mother took a turn for the worse, my sister came over for a fortnight, the day after she returned to Australia, our mother died the next day. So she came back again for the funeral. She had to use what savings that she had to come back again and cannot afford to pay for a funeral."

That I accept.

6. The grounds of appeal to me are that since the mother had dementia and since she was unable to having any meaningful conversation with either the claimant or his sister, they were "estranged" for the purposes of Regulation 7(3). While I have little doubt that it may have been "reasonable" for the claimant to take responsibility for this cost had regulation 7(1)(e)(iii) applied, but where there are more than one immediate members of the family para (3) of that regulation decides the question. That provides:

"(3)...the responsible person shall not be entitled to a funeral payment where he is an immediate family member...and –

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

(b) neither those immediate family members nor their partners had been awarded the benefit to which paragraph 1(a) refers; and

(c) any of the immediate family members to which sub – paragraph (b) above refers was not estranged from the deceased at the date of his death."

7. It is argued that in the circumstances of this case, because the mother was capable of no sensible communication, the sister was in fact estranged. The letter from the matron of the nursing home dated 31.7.2001(19) is prayed in aid. The matron says:

"The mother suffered from severe dementia, which prevented her from communicating either verbally or non-verbally to anybody. It is pretty fair to say that [the mother] made no response to visitors, and showed no recognition of family members.

"Due to [the claimant's] unstable condition, I had to request on three occasions for her daughter [the sister] who resides in Australia to attend, this was obviously a huge financial strain, so much so that when [the claimant] died two days after her daughter's return to Australia, her daughter did not think she would be able to attend the funeral, as she had no more funds available, I believe this was resolved by a loan of some description.

"It is correct to say that given [the mother's] mental condition whilst a patient here, she was unable to sustain any meaningful relationship with family members, and to all intent and purposes was estranged".

8. There are slight indications of what "estranged" means both in R(SB)2/87 and CIS/511/97 it is not for instance "virtual estrangement", nor is the fact that the relation might be living abroad for long periods relevant either. There must in my judgment, usually be something in the nature of mutual alienation, and I put the point thus in para 8 of CIS/5321/1998:

"9. Having said that, the question resolves itself as to what really is meant by the word in "estranged". The appropriate OED definition of "estranged", accepted in CIS/5119/97 is, "to alienate in feeling or affection." I might put a gloss on that such as "not to be on speaking terms". The evidence before the tribunal points, I think, not at so much as an alienation of feeling or affection - the emphasis being on "alienation", a concept which involves some form of positive consideration - but a drifting apart which to my mind connotes something short of alienation. Of course a long period of "drifting apart" may lead to the inference that there had been an alienation, but such is not, in my view, the case here"

Those considerations are equally applicable here. Had such a break down in relation occurred before the on set of the mother's incapacity, then estrangement there would have been. But the incapacity by itself is not estrangement, and neither is the fact that the sister had been in Australia for some 10 years.

9. All these cases evoke sympathy, but the statutory provisions, if somewhat draconian, are clear. I must dismiss this appeal.

(Signed) J M Henty

Commissioner

(Date) 19 June 2002