Decision No:  C1/00-01(SF)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

SOCIAL FUND

Appeal to the Social Security Commissioner
on a question of law from the decision of Newtownards Appeal Tribunal
dated 2 December 1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, with leave of the legally qualified member of the Tribunal, by the claimant against the decision of a Tribunal which held that the claimant was not entitled to a funeral payment from the Social Fund in respect of expenses arising from the funeral of his late brother, Mr H K…  I arranged a hearing of the appeal at which the claimant, who was not present, was represented by Mr McVeigh of the Citizens Advice Bureau while the Department was represented by Mr Bennett of the Decision Making and Appeals Unit.

2.	On 30 July 1999 the claimant applied for a funeral payment from the Social Fund arising out of the funeral of his late brother Mr H K… who had died on 19 July 1999.  In his application he indicated that his late brother had no surviving parents, sons or daughters and also no surviving close relatives.  This matter was investigated further and on 9 August 1999 the claimant by letter stated that his late brother had a surviving father who was an inpatient in the Royal Victoria Hospital, Belfast, since 12 May 1999.  In addition the claimant informed the Adjudication Officer that the entire family had been estranged from his late brother and that none of the family had any contact with him for more than 20 years.  Further investigations revealed that the deceased had another surviving brother, B…, two surviving sisters, J… and D   , (although subsequently it has been established that D… was not in fact a sister, but a niece of the deceased).  The Adjudication Officer considered the funeral payment application on 16 August 1999 and decided that the claimant was not entitled to a funeral payment because the deceased had an immediate family member, namely a sister, D…, who was not in receipt of a qualifying benefit.  The claimant appealed this decision on 2 September 1999.  In the meantime the exact relationship between D… of the deceased was clarified and the case put forward by the Department to the Tribunal was that it was not reasonable for the claimant to have taken responsibility for the costs arising out of the funeral of his late brother, Mr H K… because the claimant had had no contact with his late brother for over 20 years.

3.	The Chairman of the Tribunal made the following record of proceedings: -

		“Claimant:

I was getting Northern Ireland Housing Executive benefit August 1998 – because of age didn’t have to pay rent.

		I live on own.

Home is owned by Northern Ireland Housing Executive.  I moved in 3 years ago.  Bungalow before, […].

Father in hospital May 98 – Royal, Ward 34.  Bit confused.  Mother deceased.

		H (Junior) – 58 deceased.

He lived with partner, […].  She died 6 weeks before.  She has 2 daughters and sons from marriage none from brother.  Brother and her lived […].  20 years.  I think drink killed him, both of them.  I knew her people, brother in army.  I was with him.  […] was her single name.  This was in 1948.  I was in army 1956.  When young, knew each other.  B or J.  Not for years.

I worked in England over the years.  B 1968.  Belfast area.  He’s married.  When saw him last he moved into […].  Redeveloped.
  
J – assume Belfast.  B died – 12 years back – mother of D.  B, if alive 54.  Over years I moved around.  In 1963 married.  Divorced 1967.  Police came to me, late at night.  I thought it was father.  They had to break door down.  Found on settee.  They asked about other relatives but I didn’t know address.  Mellville’s told me, in Mr F…s’, that he took care of D’s mother’s funeral.  Apparently she knew my address.  I received letter, August, Disability Living Allowance – the brothers book.  I got giro – owing from brothers Disability Living Allowance £56.20.

Police contacted Melville’s, asked him to take care of body.  Melville’s probably told police.  Next morning, I phoned hospital.  Father was next of kin but nurse said not to mention it.  I phoned Mr F… (Police had told me it was Melville’s).  He filled out form and obituary.  Belfast Telegraph.  I couldn’t make funeral – I was not well.  It was in Belfast.  Don’t know if brother or sister at it.  I explained that to Ms M E…, Social Security.  Brother don’t think he had any possessions.  Assume D… cleared out house – I don’t know her.  Last time she was 5 or 6 years old.  Brother was about 58.  I can’t add anything.”

4.	The Chairman also noted that the following documents were considered: -

		“(i)	Adjudication officer’s submission
(ii)	Claimant’s letter of 22.11.99
(iii)	Bangor Citizens Advice Bureau submission, 30.11.99
(iv)	Disability Living Allowance letter 22.9.99
(v)	List of income/outgoings
(vi)	Disability Living Allowance letter 22.9.99 – re brother’s money”

5.	Therefore, whilst the claimant was unrepresented at the hearing, the Tribunal had the benefit of a written submission prepared and produced by Mr Moore of Bangor Citizens Advice Bureau.  It was also signed by the claimant.  I also note that the Tribunal did not have the benefit of the attendance of a presenting officer which, in the circumstances of the present case, is somewhat regrettable.

6.	The Tribunal, which consisted solely of the legally qualified member, gave the following reasons for its decision:-
	
“The factual background to this claim is that the claimant is the eldest of 3 brothers, viz himself, B and the deceased.  He also has a sister J and another sister B who is deceased.  B had a daughter D who is referred to as the claimant’s sister but is in fact his niece.  The claimant’s mother is deceased but his father is alive.  His father receives income support and has been a hospital patient (Royal Victoria Hospital) since May 1998 and is confused.  The claimant’s family were originally from Belfast but he worked in England for some years before settling in Bangor.  From questioning the claimant there is nothing to cast doubt on the fact that for many years he and his brothers and sisters drifted apart and lost contact with each other.  This has been to such an extent that the claimant is unsure of their addresses or circumstances.

The police came to the claimant’s house late at night to tell him his brother H had been found dead at his home.  It is likely that the police initially contacted an undertakers close to the deceased’s home and they were able to provide some details and they had been involved in arranging the deceased’s partner’s funeral shortly before.  The police appear to have obtained the claimant’s address from a daughter of the deceased’s partner, D.  The local undertakers Mellvilles, made the funeral arrangements.  The claimant was to ill to attend the funeral and does not know if his surviving brother or sister attended or whether they are in receipt of a relevant benefit.  As was mentioned earlier, this factual account is accepted.

The claimant made a claim for a funeral payment in respect of his late brother.  At page 6 it is ticked the deceased had no surviving parent and at P7 it is ticked that the deceased had no other surviving close relatives, such as brothers or sisters.  Both these statements are of course incorrect but it is accepted that there was no deliberate intent on the claimant’s part to mislead.  As the Citizens Advice Bureau submission indicates the form was only signed by the claimant and was completed by a third party who appears to be familiar with completing such forms, perhaps the undertakers, though they have not acknowledged completing the form at p17.  It subsequently transpired the claimant’s father is alive as is a brother and sister.

The claimant is in receipt of a qualifying benefit viz housing benefit.  The Department took advice from Central Adjudication Services and concluded it was not reasonable for the claimant to have taken responsibility for the funeral on the basis of lack of contact.

In the Adjudication Officer’s submission reference is made to regulation 6(e) (iv) whereby it must be reasonable for the responsible person to accept responsibility Reg 6(9) gives some assistance on ‘reasonableness’ in that regard is to be had to the nature and extent of the contact with the deceased.  Page 1089 of the 1999 edition of Mesher and Wood refers to C15 12783 (1996 (R (I.S.) 3(98).  This holds that in deciding the nature and extent of the contact regard should be had to the person’s relationship with the deceased as a whole and not just during the period immediately before death.  In that case the claim was made in respect of a deceased parent with whom there had been no contact for 24 years.  The Commissioner held that the lack of contact did not automatically erase the contact in the preceding 30 years (see also CIS 13 20/196).  It is the present tribunal’s view that in the circumstances it was not unreasonable for the claimant to have accepted responsibility.  The claimant was the eldest and while he had no contact apparently for 20 years or so they were brothers and had known each other growing up together.  The claimant is now 61 and his deceased brother was 58.

As the Adjudication Officer’s submission refers, the fact it is held by the Tribunal that it was reasonable for the claimant to accept responsibility is not the end of the matter.  Reg 6(3) would prevent a payment to the responsible person if there are immediate family members not on a relevant benefit and not estranged.  The deceased father is an immediate family member but the claim is not defeated by reg 6(3) as he has been in hospital since 12.5.99 and was on Income Support.  The claim would also be defeated by virtue of Reg 6(6)(a) if it was shown any of the deceased brothers or sisters had close contact.  On the evidence, there is nothing to suggest this.  Finally Reg 6(6)(b) prevents a claim succeeding if the evidence suggests the other brothers and sisters had equal contact with the deceased and are not in receipt of a relevant benefit.  The evidence indicates that it cannot be established one had more contact than the other.  The evidence is that all the brothers and sisters drifted apart over the preceding 20 years.  The most that can be said is they had equal contact or perhaps more accurately an equal amount of lack of contact.  On the evidence it certainly cannot be established the claimant had more contact.  He himself has argued he had no contact.

On the basis that the contact between the brothers and sisters as close relatives of the deceased was equal the next question is whether they were in receipt of a relevant benefit.  The short answer is that this is not known.  Ultimately, the question turns on where the onus of proof lies.  In the view of the Tribunal the onus is on the claimant to show his brother and sister one are on a relevant benefit.  Although not argued in the Adjudication Officer’s submissions by 6(6)(c) it would also be necessary to compare the capital, if any, of the claimant’s brother and sister.  In practice this will be a difficult burden for the claimant to discharge given the lack of knowledge of his brother and sister’s situation.  Mesher at p1090 refers to reg 7(6)(6)(b) but is not informative on the issue of onus of proof.  The Citizens Advice Bureau submission of 3.11.99 refers at question 2 to a negative assessment.  By 7(6)(b) where the claimant is a close relative and there are other close relatives in equal contact the claim fails unless that other close relative is also in receipt of a relevant benefit.  In the view of the Tribunal where this situation pertains the burden of proof is on the claimant to establish that other relative is on a relevant benefit.  The Tribunal can envisage hardship on this approach, for instance, as in the present case, where the circumstances of the other relative is unknown or they live abroad where they could not receive a relevant benefit.  However unfairly this may operate in individual cases the Tribunal interprets the legislation as placing the onus on the claimant to establish entitlement.  Consequently, as he cannot establish if his brother and sister are on a relevant benefit and do not have relevant capital his claim fails.”

7.	The decision of the Tribunal was as follows:-

“… the claimant is not entitled to a funeral payment from the Social Fund in respect of the expenses arising from the funeral of his late brother, Mr H K…  Whilst it was reasonable for the claimant to have accepted responsibility for the funeral the deceased had other close relatives, namely a brother B and sister J.  They had equal contact with the deceased as had the claimant and it has not been established that they are in receipt of a relevant benefit nor has it been established what capital they have, if any –

		Appeal dismissed
		
Regs 2(1), 6(1)(iv)(aa), (5), (6)(b)(c) of the Social Fund (Maternity and Funeral Expenses) (Gen.) Regs. (NI) 1987.”

8.	The relevant legislation in this case is the Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987 and in the circumstances it is appropriate for me to quote at this stage the relevant portions of regulation 2 and regulation 6.

		“Interpretation

2.	(1)	In these regulations –
		…

“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-son-in-law, step-daughter, step-daughter-in-law, brother, brother-in-law, sister or sister-in-law;

		…

		“funeral payment” is to be construed in accordance with regulation 6;

		“immediate family member” means a parent, son or daughter;

		…

PAYMENTS FOR FUNERAL EXPENSES

Entitlement

6.	(1)	Subject to paragraphs (2) to (7), regulation 7 and to Parts IV 
and V, a Social Fund payment (referred to in these Regulations as a “funeral payment”) to meet funeral expenses shall be made only where –

(a)	the claimant or his partner has (in this Part referred to as “the responsible person”), at the date of claim for a funeral payment has an award of income support, income-based jobseeker’s allowance, family credit, disability working allowance or housing benefit; and

(b)	the funeral takes place –

(i)	…

(ii)	… in the United Kingdom …

…

(c)	the deceased was ordinarily resident in the United Kingdom at the date of his death;

(d)	the claim is made within the prescribed time for claiming a funeral payment; and

(e)	the claimant …

(i) 	…

(ii)	…

(iii)	…

(iv)	in a case where the deceased had no partner and heads (ii) and (iii) do not apply, the responsible person was, subject to paragraphs (3) and (4), either -

(aa)   a close relative of the deceased, or

(bb)	 …

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

			(1A)	…

	(2)	…

(3)	In a case to which paragraph (1)(e) … (iv) applies and subject to paragraph (4), the responsible person shall not be entitled to a funeral payment under these Regulations where - 

(a)	there are one or more immediate family members of the deceased (not including any immediate family members who were children at the date of death of the deceased);

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

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

(4)	Paragraph (3) shall not apply to disentitle the responsible person from a funeral payment which the immediate family member to whom that paragraph applies is -

(a)	…

(b)	…

(c)	…

(d)	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 or, as the case may be, the Social Security (Hospital In-Patients) Regulations 1975 and either that immediate family member or his partner had been awarded a benefit to which paragraph (1)(a) refers immediately before that immediate family member was first regarded as receiving such treatment.

(5)	In the case to which paragraph (1)(e) … (iv) applies, whether it is reasonable for a person to accept responsibility for meeting the expenses of a funeral shall be determined by the nature and extent of that person’s contact with the deceased.

(6)	… in a case where the deceased had one or more close relatives and the responsible person is a person to whom paragraph (1)(e) … (iv) applies, 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 -

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

(b)	in equally close contact with the deceased and neither  that close relative nor his partner, if he has one, has been awarded a benefit to which paragraph (1)(a) refers; or 

(c)	in equally close contact with the deceased and possesses, together with his partner, if he has one, more capital than the responsible person and his partner and that capital exceeds –

(i)	where the close relative or his partner is aged 60 or over, £1,000, or

(ii)	where the close relative and his partner, if he has one, are both aged under 60, £500,

the responsible person shall not be entitled to a funeral payment under these Regulations in respect of those expenses.

			(7)	…”

9.	The effect of this legislation is that close relatives and close friends who have accepted responsibility for a funeral will be eligible for this payment, but only in circumstances where it is considered reasonable for them to have accepted this responsibility.  In addition there must be no other “immediate family member” (i.e. parent, son or daughter) who is not on benefit and was not estranged from the deceased, and no other close relative (which includes a sibling) who was in closer contact with the deceased, or was not on benefit and was in equally close contact with the deceased.  Accordingly, where there are other close relatives, the nature and extent of their contact with the deceased must be compared with that of the claimant.

10.	I had the benefit of the original grounds of appeal set out by Mr McVeigh in a letter to the clerk of the Tribunal Service dated 12 March 2000, the letter of appeal to the Office of Social Security Commissioners dated 20 April 2000, the claimant’s letter to the Office dated 12 September 2000, Mr McVeigh’s letter of 10 October 2000, the claimant’s letter of 24 January 2001, Mr McVeigh’s skeleton argument dated 5 February 2001, Mr McVeigh’s oral submissions at the hearing on 14 February 2001 and a further written submission from Mr McVeigh dated 28 February 2001.  In addition, I also had the benefit of a written submission dated 4 August 2000 from Mr Bennett on behalf of the Department, a further written submission dated 30 August 2000 from Mr Bennett, Mr Bennett’s skeleton argument dated 5 February 2001, his oral submissions at the hearing on 14 February 2001 and also a further written submission dated 26 February 2001 from Mr Bennett.  In short, whilst the Department originally supported the claimant’s appeal to some extent, in the end the Department took the view that the Tribunal’s decision was correct in law.

11.	The claimant’s case is that the Tribunal erred in law in finding that the onus of proof for showing that the claimant’s estranged brother and sister were receiving relevant benefits was on the claimant, despite the fact that the claimant had no contact with any of them for a number of years and had no knowledge of their whereabouts.  It was also submitted on the claimant’s behalf that the Tribunal erred in law by introducing new arguments, which were not addressed in the Department’s written submission and, accordingly, the claimant was not given an opportunity for an adjournment to address these issues.  Also it was submitted on the claimant’s behalf that the Tribunal had erred in law by referring to particular case law in its decision in circumstances where the claimant was not in a position to comment on the implications of this case law.
 
12.	During consideration of the case another issue arose, namely:- whether contact with the deceased can include contact after the date of death for the purposes of the Social Fund (Maternity and Funeral Expenses) Regulations (Northern Ireland) 1987, regulation 6(5) and (6).  Because of its potential seriousness and relevance to the outcome of the case, both advocates were invited to make and did in fact make additional submissions in writing.  In the present case the relevance of the point is founded on the fact that the claimant had taken steps to arrange for the funeral of the deceased.

13.	Mr Bennett submitted that contact has to be assessed throughout the period of the deceased’s lifetime.  In support of this submission he pointed out that in regulation 6(1)(e)(iv) the words “the responsible person was” (my emphasis) are used and in regulation 6(6) the words “any such relative was” (my emphasis) are used, which suggests that contact after death is not relevant.  Accordingly even a final act of reconciliation after death, in his submission, cannot constitute contact with the deceased.

14.	Mr McVeigh submitted that whilst the words “… from the deceased at the date of his death …” in regulation 6(3)(c) and “… had not obtained the age of 18 at the date death …” in regulation 6(7)(a) are specifically inserted, similar words are conspicuous in their absence in regulation 6(6).  He accordingly submitted that the absence of such wording means that contact should not be restricted to a period up to the date of death.  He also submitted that the reference to “… the responsible person was …” in regulation 6(10(e)(iv) and “… any such relative was …” in regulation 6(6) may suggest that a period up to the date of death can only be counted but it could also refer to a period up to the date of claim.  However perhaps Mr McVeigh’s most cogent submission is contained in a Decision of Mr Commissioner Mitchell QC in the final paragraph of Great Britain Decision CIS/674/98.  He stated:-

“… Against this it is relevant to consider the nature and extent of the claimant’s contact with her father, as exemplified by her pattern of visiting, cooking for him, and providing domestic help to him; and it might also be thought that her taking of responsibility for his funeral was also a matter of significance in indicating the quality and nature of her relationship with him as opposed to that of her brother who took no such responsibility….”

15.	I can accept the correctness of the latter part of the quotation from the Commissioner’s Decision if it is stating that the taking of responsibility for a funeral can be supportive evidence of the quality and nature of a relationship, supporting in that case the claimant’s personal contact with the deceased prior to his death.  However I do not consider that it can be supportive if there is no relationship at all, as in the present case.

16.	I conclude that Mr Bennett is correct in his submissions that the contact referred to in regulation 6(5) and (6) means contact between the claimant and the deceased whilst the deceased was still alive.
  
17.	Mr Commissioner Henty in the Great Britain Decision CIS/5321/98 has dealt with the issue of burden of proof in not dissimilar circumstances.  At paragraph 7 of that decision he stated as follows:-

“Prima facie, the claimant is entitled to a funeral payment having satisfied the qualifications therefore.  Para 3 of regulation 7 [of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (the equivalent of regulation 6(3) of the Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987)] has the effect of taking away that qualification in the circumstances therein set out and it seems to me, for that reason, that insofar as the burden of proof plays any part in the matter, marginally, it lies on the AO.  However, in my view, as a general rule appeals should not be decided by reference to the burden of proof.  Moreover, a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.”
 
Accordingly it seems to me that a claimant has to prove the basic qualifications by proving the circumstances that make him or her entitled, whilst the Department normally has to prove any exceptions such as those matters set out in regulation 6(3).  However the last sentence of the quotation from Mr Commissioner Henty’s decision gives a guide that a pragmatic approach must be taken by Tribunals. 

18.	Mr McVeigh submitted that, as the burden of proof issues were not canvassed by the Tribunal (even though very relevant to the Tribunal’s decision), the hearing ought to have been adjourned to obtain assistance on this matter.  However on the evidence available no other proof of close relationship was even potentially available, and, whilst a decision to adjourn could have been a reasonable course of action to take, it was certainly not an error in law, in my view, for the Tribunal to proceed.

19.	In the present case the claimant is a “close relative” under regulation 2 rather than an “immediate family member”.  The claimant at the relevant time was on Housing Benefit therefore he satisfied the conditions set out in regulation 6(1)(a).  The funeral took place in the United Kingdom which satisfied the condition set out in regulation 6(1)(b)(ii).  The deceased was originally resident in the United Kingdom at the date of his death therefore regulation 6(1)(c) was satisfied.  It seems that, as the claim was within the prescribed time, it satisfied regulation 6(1)(d).  The deceased had no partner and it was reasonable for the claimant to accept responsibility for the expenses of his brother’s funeral, which satisfied the requirements of regulation 6(1)(e)(iv)(aa).  The claim can potentially be defeated by the deceased’s father, who is clearly an immediate family member.  However, he had been in hospital since 12 May 1999 and was on Income Support.  In the present case, therefore, the claimant’s claim is not defeated by regulation 6(3) because of the provisions of regulation 6(4)(d) and regulation 6(1)(a) as the claimant had been on Income Support.  However the claimant’s claim is potentially capable of defeat by the provisions of regulation 6(6) and a major question in the present case is whether the Tribunal dealt with this provision appropriately in light of the evidence.
   
20.	The Tribunal at first glance appears to have used the wrong test as it has stated in its reasons:-

“… Reg 6(6)(b) prevents a claim succeeding if the evidence suggests the other brothers and sisters had equal contact with the deceased …”

	The Tribunal also stated in its reasons as follows:-
“On the basis that the contact between the brothers and sisters as close relatives of the deceased was equal the next question …”.

21.	The test in regulation 6(6)(a) concerns “closer contact” whilst the test in regulation 6(6)(b) and (c) is one of “equally close contact”.  The question is whether the Tribunal used a test of “equal contact” when it ought to have been applying tests of “closer contact” and “equally close contact”.

22.	However the Tribunal specifically found that the claimant had no contact for 20 years and also that the other brother and sister had no such contact.  While they were all “close relatives” of the deceased, none had “close contact” with the deceased.  It is in this particular context that the Tribunal’s apparent failure to recite the word “close” at certain parts of its decision must be viewed.

23.	The Tribunal has stated that:-

“The claim would also be defeated by virtue of Reg 6(6)(a) if it was shown any of the deceased (sic) brothers or sisters had close contact.  However regulation 6(6)(a) refers to “closer contact”, not “close contact””.  

However it seems to me that the Tribunal is stating that the claim would be defeated by any sibling with close contact.  Therefore, as the claimant himself does not have close contact, in the circumstances “close contact” of any description would be “closer contact” which would disbar the claimant.  Therefore, the Tribunal has found that no one had close contact (and by definition no one else can have closer contact than the claimant).

24.	The Tribunal’s approach to regulation 6(6)(b) is similar insofar as the regulation refers to those “in equally close contact with the deceased”.  The Tribunal has referred to the siblings being in “equal contact”.  However, the Tribunal has already established that no one had “close contact”.  Accordingly it cannot be said to be abdicating its role in assessing the quality of contact as this had already been done by the Tribunal which found that:-

“The most that can be said is they had equal contact or … an equal amount of lack of contact.”

25.	Therefore, to summarize, I conclude that the Tribunal decided that no one had “closer contact” than the claimant but the other siblings were in “equally close contact” or had “an equal amount of lack of contact”, which constitutes, in the particular circumstances of this case, a finding of “equally close contact”.
 
26.	It is understandable that the Tribunal did not describe any of the relationships as close but this merely reflects the appropriate approach in the context of the evidence in this case.  It does not appear to be an error in law.

27.	Once the Tribunal has found all the siblings are equal then the question turns to finances and the burden of proof.  Who has to show that the siblings had no capital or were in receipt of benefit?  It seems to me that a burden might be on the Department if there is sufficient evidence to enable the Department to make relevant enquiries.  However, as Mr Commissioner Henty stated in CIS/5321/98 (quoted at paragraph 17 herein), “the claimant must to the best of his or her ability give” such information to the Department “as he reasonably can”.  Siblings are, on balance, expected to have some knowledge of each other and must be expected to provide basic information to the Department or at the very least show that they have taken all reasonable steps to obtain such information.  In my view the Tribunal’s approach set out in the last four sentences of its reasons [see paragraph 6 herein] is the correct course to take in the present circumstances. 

28.	Mr McVeigh submitted that the Tribunal erred in law by not giving the claimant an opportunity to comment on case law mentioned in the Tribunal’s decision.  This point has no substance as the relevant Commissioners’ Decisions R3/98(IS) and CIS 13120/96 (wrongly referred to as CIS 1320/96) were relied on by the Tribunal to show that, although the claimant and the deceased had had no contact for about 20 years, the period of non-contact did not erase the contact they had had whilst growing up.  This conclusion was potentially in favour of the claimant and therefore the introduction of these decisions did not disadvantage the claimant in any conceivable way.

29.	For the reasons stated I conclude that the decision of the Tribunal is not erroneous in point of law.  Accordingly I dismiss the appeal.

(Signed): J A H MARTIN QC

CHIEF COMMISSIONER

15 MAY 2001

APPENDIX 1 TO C1/00 – 01(SF)

[2002] NICA 32
[2002] NICA 31
[2004] UKHL 23