Decision No: C2/98(SF)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

SOCIAL FUND

Appeal to the Social Security Commissioner
on a question of law from the decision of the
Dungannon Social Security Appeal Tribunal
dated 7 November 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal (leave having been granted by the Tribunal Chairman) against a decision dated 7 November 1997 of a Social Security Appeal Tribunal.  The decision was a majority decision, the Chairman dissenting.  The appeal was by the Adjudication Officer.  The Tribunal had allowed Mrs H...'s appeal and decided that she was entitled to a Social Fund payment to meet the funeral expenses of her late mother Mrs S… McK…who died on 30 July 1997.

2.	I held an oral hearing of the appeal.  Mr Mullen of Central Adjudication Services attended to represent the Adjudication Officer.  Mrs H... did not attend.  Mr McL…, the Adjudication Officer originally concerned with the case, had set out his grounds of appeal in a letter dated 8 June 1998 and Mrs H... was given an opportunity to make her observations on same by letter of 26 June 1998.  She did not do so.  At hearing Mr Mullen's grounds of appeal were in essence the same as they had been in the letter of 8 June 1998.  He submitted that the Tribunal had erred in law in several ways as follows:-

	1.	On the evidence before it the Tribunal erred in deciding that the immediate family members of the late Mrs McK… were in receipt of a relevant benefit as defined in regulation 6(1)(a) of the Social Fund Maternity and Funeral Expenses (General) Regulations (Northern Ireland) 1987.
	2.	In its findings of fact the Tribunal found that Patrick McK…, son of the late Mrs McK…, "may be" in receipt of state benefit in the Republic of Ireland and on this basis found as a fact that he was in receipt of a relevant benefit.  For purposes of regulation 6(3)(a) of the said regulations the relevant benefits are Income Support, Income-Based Jobseekers Allowance, Family Credit, Disability Working Allowance or Housing Benefit.  Mr Mullen submitted that for purposes of both the said regulation 6(1)(a) and 6(3)(b) a state benefit in the Republic of Ireland could not be considered as a "relevant benefit" for Social Fund funeral payments purposes.

	3.	In its findings of fact the Tribunal recorded that one immediate family member was living in London and was believed to be in receipt of some state benefit.  Another was also believed to be in England and it was thought that she was also in receipt of state benefit.  On this evidence the Tribunal made a finding of fact that the other immediate family members were in receipt of a relevant benefit.  There was no evidence to enable the Tribunal to determine that the immediate family members were in fact in receipt of such a benefit as they could have been in receipt of other state benefits such as Incapacity Benefit or Disability Living Allowance.

	4.	Even if the immediate family members living in Great Britain were in receipt of relevant benefits there was an issue as to whether Income Support awarded in Great Britain was a relevant benefit for the purposes of regulation 6(1)(a) of the said regulations.

	5.	In deciding that certain family members were estranged from the deceased at the date of her death the Tribunal ignored GB Commissioner's decision R(SB)12/87 which defined estrangement as having "connotations of disharmony".  There was no evidence that such estrangement actually existed.

3.	Mr Mullen is correct in the first, second and third grounds set out above.   I have not dealt with the issue  raised by the fourth ground as it does not appear to be necessary in the context of this decision and I would prefer to hear further argument on the matter on another occasion.  It is not necessary for the determination of this appeal.

4.	As regards the final ground set out by Mr Mullen I would prefer to have heard further argument before addressing in full the question of whether estrangement must always have connotations of disharmony.  I am, however, satisfied that the Tribunal's decision was perverse on the evidence in determining that Mr P… McK… was estranged from his mother.  I also find it a matter of some concern that the majority of the Tribunal appears to have ignored the considerable weight of evidence in relation to Mr P… McK…'s contact with his mother.  It appears to me quite clear on the evidence that Mr P… McK… was not estranged from the late Mrs McK… at the date of her death.  I consider that the conclusion which the majority reached was not one which was open to them on the evidence.  There was considerable evidence that Mr P… McK… was in relatively recent contact with his mother and no evidence indicating that  they were estranged either in terms of a complete or lengthy loss of contact or in terms of any disharmony. 

5.	As regards other family members it is not necessary to make specific findings but the conclusions which the majority came to with relation to those residing in Great Britain were not sustainable on the evidence.

6.	I consider that this is a decision where I can give the decision which the Tribunal should have given.  My decision is that Mrs S… H... is not entitled to a Social Fund payment to meet the funeral expenses of the late Mrs S… McK… as the Adjudication Officer has established that there was at least one other immediate family member ie. Mr P… McK…who was not in receipt of qualifying benefit and not estranged from Mrs McK… at the date of her death.

	(Signed):  M F Brown 

	COMMISSIONER

9 April 1999