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[2006] UKSSCSC CIS_1335_2004 (10 November 2006)

CIS/1335/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the claimant's appeal against the decision of the Birmingham appeal tribunal dated 19 December 2003.

REASONS

2. I am very sorry that this case has taken so long to determine. In part this has been because it was stayed pending the Court of Appeal's decision in Esfandiari v. Secretary of State for Work and Pensions [2006] EWCA Civ 282, which unfortunately has turned out not to be of much assistance so far as the present case is concerned.
3. The facts of this case are not in dispute. The claimant's husband sadly died on 12 August 2003, while they were on holiday in Spain. They were both in their 70s and retired. His body was cremated in Spain on 14 August 2003 and his ashes were interred in England on 22 August 2003. The interment was arranged by a firm of funeral directors who submitted an invoice for £1,114, consisting of £320 in respect of the casket, one limousine and professional fees, £679 for the purchase of a plot in a cemetery and the interment of the remains in it and £115 for church fees. The claimant has explained that the interment was somewhat more elaborate than it might otherwise have been because friends and family had not been able to attend the cremation service in Spain. The cremation had taken place there because she had been unable to afford to have her husband's body flown back to England. The claimant also paid £800 for a memorial in the cemetery and £230 in respect of flowers. The cremation in Spain had cost 1,417.75 euros. It is not clear how the bills were paid but the claim form reveals very limited assets.
4. The claimant claimed a funeral payment from the Social Fund as a "responsible person" who was in receipt of a qualifying benefit. This was refused on the ground that the condition imposed by regulation 7(1)(b) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (S.I. 1987/481) was not satisfied. That condition is that –

"(b) the funeral takes place –

(i) in a case where the responsible person is a person to whom paragraph (1A) applies, in an EEA State;

(ii) in any other case, in the United Kingdom,

and for the purposes of this sub-paragraph, 'EEA State' means a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993".

Paragraph (1A) applies to a person who is –

"(a) a worker for the purposes of Council Regulation (EEC) No.1612/68 or (EEC) No.1251/70;

(b) a member of the family of a worker for the purposes of Council Regulation (EEC) No.1612/68;

(c) in the case of a worker who has died, a member of the family of that worker for the purposes of Council Regulation (EEC) No.1251/70; or

(d) a person with a right to reside in the United Kingdom pursuant to Council Directive No.68/360/EEC or 72/148/EEC."

5. The claimant appealed but the tribunal confirmed the Secretary of State's decision. She now appeals against the tribunal's decision with the leave of Mr Commissioner Levenson. The appeal raises two issues. First, is the Secretary of State correct to argue that expenses incurred in the interment of ashes are not funeral expenses ? Secondly, is the claimant entitled to a funeral payment in respect of the cremation in Spain ?
6. So far as the first of those questions is concerned, the Secretary of State relies upon the decision of Mr Commissioner Rice in CIS/16192/1996 in which he held that a person was not entitled to have met the expenses arising from the interment of ashes as well as the expenses of the cremation itself because the definition of "funeral" is "a burial or a cremation" (my emphasis) and the terms of regulation 7(4) in force at the relevant time made it clear that a claimant was entitled to the cost of either an interment or a cremation but not both. He also considered that the interment of ashes could not be considered part of a cremation, saying –

"In the Shorter Oxford English Dictionary cremation is defined as 'the reduction of a corpse to ashes in lieu of interment'. The disposal of the ashes is no part of the cremation process."

7. The language of the Regulations was subsequently changed and, in particular, regulation 7A replaced the old regulation 7(4). As in force at the time material to the present case, the new legislation makes it even clearer that the costs of purchasing a new burial plot and cemetery fees that may be met under regulation 7A(2)(a) cannot be claimed where there is a cremation having the effect that regulation 7A(2)(b) applies. Moreover, regulation 7A(2)(e) provides that the cost of transport covers "a vehicle for the coffin and bearers and … one additional vehicle", making it clear that such costs may be claimed only in respect of the burial of a body or the cremation of a body. Similarly, costs covered by regulation 7A(2)(d) because they are incurred to "transport the deceased" can only refer to costs in respect of transporting the body before interment or cremation and it seems to me that travel costs covered by regulation 7A(2)(f) "either for the purposes of making arrangements for, or attendance at, the funeral" (my emphasis) must be those arising in connection with the interment of the body or, where there is a cremation, to the cremation itself and not to any subsequent interment of ashes.
8. However, it does not follow that some costs associated with the interment of ashes could not be claimed under regulation 7A(2)(g) as "any other funeral expenses" and, in my judgment, the change in the legislation does reverse CIS/16192/1996 to that extent. This is reinforced in the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 (S.I. 2005/3061), where regulation 9(5) provides that regulation 9(3)(a) (equivalent to the old regulation 7A(2)(a)) does not apply to costs in connection with burial of the deceased's ashes (where he was cremated), clearly implying that regulation 9(3)(g) (equivalent to the old regulation 7A(2)(g)) could apply to such costs. However, this does not help the claimant in the present case because, to the extent that costs associated with the interment of ashes may be claimed under regulation 7A(2)(g), that is only because such costs can be regarded as incidental to, or consequential upon, the actual cremation. It is the actual cremation that is the funeral and in this case that took place in Spain. Similarly, in CIS/4618/2001, the costs of the interment of ashes could not be met through a funeral payment because, although the claim had been made within three months of the interment, it had been made more than three months after the cremation.
9. This makes it necessary to turn to the second question and consider whether the claimant is entitled to a funeral payment to meet the costs of the cremation in Spain. The Secretary of State submits that this point is not in issue because the claimant has made it clear that she is not seeking payment of those costs but that is not much of an argument if the evidence shows clearly that the claimant is entitled to a funeral payment and is only not claiming one because she has been told she cannot do so. Moreover, for the reasons I have given, if the claimant is entitled to a funeral payment in respect of the cremation in Spain, she may be entitled to some of the expenses she claims in respect of the interment of the ashes.
10. I find regulation 7(1)(b)(i) and (1A) completely mystifying. The basic rule is that a claimant is not entitled to a funeral payment in respect of a funeral that takes place outside the United Kingdom and that is what the legislation originally provided. However, in O'Flynn v. Adjudication Officer (C-237/94) [1996] ECR I-2617; [1998] I.C.R. 608 (also reported as R(IS) 4/98), the European Court of Justice held that that rule was capable of discriminating against migrant workers. Mr O'Flynn was an Irish national who was resident in the United Kingdom as a former worker. His son died in the United Kingdom but was buried in Ireland. When Mr O'Flynn was refused a funeral payment, he argued that he was being discriminated against contrary to Article 7(2) of Regulation (EEC) No.1612/68, under which a worker from one Member State is to enjoy in the territory of the other Member States the same social and tax advantages as national workers. The Court observed that –

"… it is above all the migrant worker who may, on the death of a member of the family, have to arrange for burial in another Member State, in view of the links which the members of such a family generally maintain with their State of origin."

11. Regulation 7(1)(b)(i) and (1A) was the Government's response. However, at least if the provisions are read literally, this response goes far beyond what was required by O'Flynn because no attempt has been made to limit regulation 7(1)(b)(i) so that the cost of a funeral outside the United Kingdom is met only where the funeral takes place in the State of origin of the migrant worker or family member or of the deceased or where the funeral takes place in an EEA State for some other reason connected with the claimant's status as a migrant worker.
12. If the claimant and her husband had been Spanish nationals who had acquired a right of residence in the United Kingdom because one or other of them had worked in the United Kingdom for long enough before retiring, it is understandable that the Regulations should have allowed the claimant to claim a funeral payment in respect of the funeral of her husband in Spain following his death while on holiday there. However, I do not understand why, if they had been Finnish nationals who had acquired such a right of residence in the United Kingdom, the Regulations should have allowed her to claim a funeral payment in respect of the funeral of her husband in Spain following his death while on holiday there. Nonetheless, that appears to have been the effect.
13. I have considered whether all British workers and retired workers and their families should be regarded as falling within regulation 7(1A)(a) to (c) but that was plainly not the intention of the legislator, who can only have had in mind those exercising rights under either Council Regulation (EEC) No.1612/68 or Council Regulation (EEC) No.1251/70. I am therefore obliged to accept that the Regulations treat United Kingdom citizens less favourably than citizens of other Member States exercising rights in the United Kingdom under European Union law.
14. I have considered whether such unequal treatment is unlawful under either the law of the European Union or the European Convention on Human Rights. Funeral payments do not fall within the scope of Council Regulation (EEC) 1408/71. The claimant also cannot rely on Council Regulations (EEC) No.1612/68 and (EEC) No.1251/70 because she and her husband were not exercising any right under those Regulations either in the United Kingdom or in Spain. While in Spain they were no doubt exercising their rights under European Union law to receive services available to tourists, but I do not consider that that can impose any duty on the United Kingdom to make a funeral payment to the claimant in respect of her husband's funeral. So far as European Union law is concerned, the position appears to be that it protects migrant workers and their families against less favourable treatment than citizens of the host State but it does not require equal treatment if the government of the host State thinks it can get away with the electoral consequences of giving migrant workers and their families more favourable treatment than the host State's own citizens. This makes it unnecessary to consider whether the unequal treatment might be justified under European Union law.
15. In relation to the European Convention on Human Rights, I am prepared to accept that unequal access to funeral payments potentially engages Article 14 taken with Article 1 of Protocol 1 but I consider that the unequal treatment is not unlawful. It might conceivably be possible to justify it on the ground that it is necessary to treat migrant workers and their families differently in order to give them practical parity, as was found in O'Flynn, and that giving them even more favourable treatment than is strictly required is necessary in order to keep adjudication simple. However, even if there is no such justification for the amount of unequal treatment, I am not satisfied that the claimant is entitled to be put in the same position as a retired migrant worker (which would be possible by striking down parts of regulation 7(1)(b)). The government is entitled to maintain its basic policy of confining funeral payments to funerals in the United Kingdom. The explanation for the unequal treatment is that migrant workers and their families require some special provision, which is justifiable, and that the government has gone further than it needs. If going further than it needs gives rise to unlawful unequal treatment, the appropriate remedy would be for the legislator to remove that degree of favourable treatment for the relatively small number of migrant workers and their families rather than for a Commissioner to upset the basic policy by striking down parts of regulation 7(1)(b) (see Regina (Wilkinson) v. Inland Revenue Commissioners [2005] 1 WLR 1718). The basic policy is not inherently a breach of the claimant's rights under the Convention.
16. The claimant's appeal must therefore fail.
17. However, I have considerable sympathy for the claimant. The policy of excluding payments in respect of funerals outside the United Kingdom is not altogether easy to comprehend, given that it is in any event a condition of entitlement both that the claimant be habitually resident in the United Kingdom (otherwise he or she would not be entitled to a qualifying benefit) and that the deceased have been ordinarily resident in the United Kingdom (regulation 7(1)(c), now regulation 7(5) of the 2005 Regulations). At least in EEA States, I would doubt that the scope for fraud is much greater than in the United Kingdom, and, as was pointed out in O'Flynn, it would be open to the legislator to limit the expenses met in respect of a funeral outside the United Kingdom to the normal cost of a burial or cremation within the United Kingdom. The effect of the Regulations in the present case is that the Social Fund has escaped the liability it would probably otherwise have had to make a funeral payment, due only to the chance event that the claimant's husband died while on holiday and appears not to have had travel insurance that would pay for the return of his body to the United Kingdom.

(signed on the original) MARK ROWLAND

Commissioner

10 November 2006