THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No:  CSIS/918/99

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER:  W M WALKER QC

ORAL HEARING

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	This claimant’s appeal fails.  I find no error of law in the decision of the Greenock social security appeal tribunal dated 8 March 1999.  The appeal is, accordingly, dismissed.

2.	This case concerns a social fund funeral payment.  The adjudication officer in considering regulation 7(3) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 as in force at the date of claim in October 1996, applied the cap of £500 to the total of the expenses listed in that paragraph.  The claimant’s contention was that the cap related to each head within the paragraph and not to the total thereof.  The adjudication officer’s decision was appealed upon that basis to the tribunal.  The tribunal allowed the appeal, but only in respect of a matter they were satisfied should have been admitted under paragraph (4)(c)(iii) as an additional expense in connection with a requirement of the religious faith of the deceased.  Upon the principle issue they adhered to the adjudication officer’s decision.  The claimant now again appeals, with leave of a Commissioner.

3.	In written submissions the Secretary of State supported the tribunal’s decision and in response the claimant, by his representative, sought an oral hearing.  I granted that request and so the case was put out for hearing.  At that hearing the claimant was represented by Mr P Clark of the Welfare Rights Representation Unit in Greenock and the Secretary of State was represented by Miss L McLaughlin, Advocate, instructed by the solicitor in Scotland to the Department of Social Security.  I am indebted to both for their submissions. 

The Regulations

4.	I start with regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987.  Paragraph (1) designates those to whom a social fund payment to meet funeral expenses is to be made.  In essence, for this case, it required that a claimant be in receipt of qualifying benefit.  That was satisfied.  This claimant’s application was in respect of the funeral of his aunt.  Paragraph (1) goes on at (b) to require the claimant to have accepted responsibility for the funeral expenses and then lists the relationships that will be admitted.  There was no dispute that under (b)(ii)(aa) this claimant so qualified.  Then there comes paragraph (2) – 

“Subject Part IV of these Regulations [which do not arise for the purpose of this decision], the amount of a funeral payment shall be an amount sufficient to meet any of the costs which fall to be met or have been met by the claimant or his partner or a person acting on their behalf and which are specified in paragraphs (3) and (4).”

It is not necessary to rehearse paragraph (4) although the tribunal, as indicated, allowed the appeal to a limited extent in that regard.  But paragraph (3) is crucial.  It reads –

“(3)	The funeral director’s fees or, where a person who arranges the funeral is not such a director that person’s costs, which may be met in any case shall include the cost of –

(a)	the collection of the deceased within the United Kingdom and transporting to the funeral director’s premises or to a place of rest over a total distance of up to 50 miles;

(b)	a simple veneered coffin and plain robe;

(c)	the care of the deceased prior to the funeral;

(d)	transport by a vehicle for the coffin and bearers and one additional vehicle, for a total distance of up to 50 miles; and

(e)	necessary funeral director’s services and staff, 

but shall not exceed £500 in aggregate in any case.”

As Mr Clark pointed out the funeral director’s fees in this case, set out at document 9 of the bundle, virtually amounted to the £500 cap by itself.  The other heads within paragraph (3) amounted to more than the same again.  Mr Clark’s primary criticism of the tribunal decision - at pages 22 to 24 of papers – was that they had not explained the basis for their conclusion against his contention that the £500 cap applied to each head (3)(a) to (e) rather than to the total from the sub-paragraphs, nor had they explained what principle of construction they had applied.  His argument started by referring to regulation 7(2) which talked about an amount sufficient to meet the costs specified as the underlying provision and purpose of the regulation.  If the cap applied to the total it could never be sufficient.  He pointed to a newspaper article from the Glasgow Herald of 8 April 1996, which had been before the tribunal, indicating that the cost of funerals had risen on average by 38 percent over the preceding 3 years and that in Scotland the 1986 average figure was £1,500.  The total cost in this case was virtually exactly that figure.  Accordingly, argued Mr Clark, if regulation 7(3) was to be consistent with the purpose set out in regulation 7(2) the cap would have to be applicable to each sub-paragraph but not to the total of the costs in them.  Indeed, referring again to the article, paragraph 7(3) could never provide what was intended by 7(2).  In practical terms I have to say that Mr Clark’s submission carried considerable force.  Whilst at this level too much must not be taken from the evidence before the tribunal and what were the costs of this particular funeral, it could, I suppose, have been added to Mr Clark’s case that if paragraph (3) was not to become, as he suggested it well had by the date of claim, inconsistent with paragraph (2) then the cap should have been increased.  But, arising from that, I suppose that even more force might have been provided for his argument by the fact that regulation 7(3) and its cap was only introduced on 5 June 1995, by amendment of the 1987 Regulations.  Looking, then, to the evidence before the tribunal in the Glasgow Herald article and the cost of the funeral, the cap could never have done anything other than be inconsistent with the purpose in (2).  The real contrast was with the pre‑1995 version of paragraph (2) which read that the amount of a funeral payment was to be the amount –

“…sufficient to meet any of the following essential expenses which fall to be met by the responsible member [as “the responsible person” was then called].  The list that then followed covered the items set out in the present paragraph (3) although without distance limits as well.”

5.	Mr Clark went on to develop an alternative argument based upon the European Convention of Human Rights.  I deal with that below.  In response to his main argument, however, Miss McLaughlin supported the tribunal decision.  She pointed first to the opening words of paragraph (3) where the costs to be included were those which could be met “in any case”.  She suggested that that phrase meant in effect “in any particular claim” and the repetition of those words at the end of the paragraph, she submitted, must therefore carry the same meaning.  It would be out of accord with normal construction if words used twice within a statutory paragraph were to have different meanings and the meaning of first use of the phrase was not ambiguous.  It could not, in short, have any other meaning.  Her next submission was that the £500 was thus related to the “aggregate” in any particular claim and the word used in that sense meant in the totality of sub-paragraphs (a) to (e) inclusive.  Mr Clark, in a written submission, had suggested that “aggregate” meant simply the sum of two or more heads and of course each of heads (a) to (e) could well be composed of more than one matter and indeed several were clearly so designed; thus (b) “coffin and robe” and (e) director’s “services and staff”.  In answer to questions from myself she suggested that if the opening word of the last line of paragraph (3) had been “which” instead of “but” that might have given some indication that the cap related to each of the heads and not the totality.  

6.	I am persuaded by Miss McLaughlin’s submissions upon the normal construction of provisions where the normal meaning of the words is to apply if there being no technical meaning involved.  Nonetheless, I should record that I found Mr Clark’s case both ingenious and persuasive.  However, what finally decided me were three factors.  The first is the historic consideration that the former paragraph (2) with its emphasis upon “sufficient to meet any of the costs” and which had not had any limit included had, by the amendment which commenced in June 1995, its opening words cut off and then the various possible heads of charge further split and rearranged into paragraphs (3) and (4).  That indicates that paragraph (2) was not thereafter to be read too closely with paragraph (3).  Mr Clark’s submission would have had greater force, in my opinion, had this been an original provision.  The second factor concerns the word “aggregate”.  I am doubtful whether the draftsman would have used that word had he simply meant to cover the possible variants that might have cropped up although related each to the other under sub-heads (a) to (e).  “Aggregate” in its past participle form as used in this regulation, descends from the Latin “aggregare”, according to the Oxford English dictionary, and that in turn, according to Ainsworth’s Latin dictionary, descends from a coupling of words meaning to create a flock from a number [of sheep].  That concept to my mind involves something more like the adding up of (a) to (e) than in each case what may be virtually only one or two items under each head.  And the third factor which persuaded me to my conclusion was the essence of Miss McLaughlin’s submission about the relationship and consequent single meaning of the words “in any case” within the paragraph.

Human Rights

7.	Mr Clark’s alternative argument mounted under the European Convention on Human Rights depended upon a consideration of provisions which he accepted at once were not at present in force.  But, he submitted, they could be prayed in aid if there was an ambiguity.  For the reasons set out above I am satisfied that there is no ambiguity.  I should still say something about the submissions out of respect for them.  Article 8 of the Treaty was founded upon.  That is conveniently known as the right to respect for private and family life.  Head 2 reads –

“There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law…”

and section 7(1)(b) of the Human Rights Act 1998 provides that –

“A person who claims that a public authority has acted… in a way which is made unlawful [by the Convention] may –

(a)	bring proceedings against the authority… or

(b)	rely on the Convention right or rights concerned in any legal proceedings….”

It was not suggested that the claimant could qualify under the later parts of that section and so I do not repeat them.  Attention was then directed by Mr Clark to section 22(4) whereby it is provided that the provision just cited applies –

“…to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act committed before the coming into force of that section.”

Now of course for present purposes the section is not yet in force.  But Mr Clark referred to the case of Smith v the Secretary of State for Trade and Industry Employment Appeal Tribunal 17 May 1999.  There, in what was alleged to be a similar situation, that tribunal said, at paragraph 20 – 

“As we understand the position, the fact that the Human Rights Act has been enacted but the relevant provisions have yet to come into force cannot raise any justiciable “legitimate expectation”.  However, where proceedings yet to be determined are unlikely to be concluded before the implementation date, then the court may intervene: see R v DPP ex parte Kebillene and Others.  Whether this discretion is confined to cases where the court is acting in its supervisory jurisdiction as a divisional court is unclear.  It was not submitted to us that we should not hear submissions about article 6 on the grounds that the relevant provisions have yet to be brought into force.  We think that Miss Eady was right to say that the point could arise when the EAT was considering whether to remit the case to an employment tribunal or when granting leave to appeal.”

Miss Eady, I should note, appeared for the Secretary of State.  But as I understand the provisions that decision involved a consideration that by the time the proceedings came to their conclusion following a remit back, the Act would be in force and so some guidance and directions might be required under it.  Accordingly the decision should be so understood, although the Article there in question was different from that before me.  But in the normal way the proceedings in a social security appeal come to an end when the case is determined by a Commissioner refusing, as I have, an appeal.  This is not a case which has any continuing life as on a remit back.  Next, and for all the ingenuity that he otherwise displayed, Mr Clark was unable to point to a public authority which had acted in this case as set out in section 7(1) other than the adjudication officer.  For all that section 22(4) might be prayed in aid as allowing a Convention defence to be raised against a public authority act “whenever the act in question took place”, yet section 6(1) is disapplied where sub-section (2) is satisfied – as where a decision was made under provisions themselves made under primary legislation which cannot be read or given effect to in any other way – ie where there is no ambiguity.  That is the position here.

8.	Finally I should record that the argument about Article 8 contended that the adjudication officer’s decision amounted to an interference with the exercise of this claimant’s right to respect for his private and family life in that he was entitled to bury his aunt in accordance with the norms of a reasonable civilised society.  The public authority, at this stage of the argument said to be the Department, had restricted that by the limit to which they had allowed themselves to contribute thereto.  I am not persuaded that that is sound.  Social security legislation is designed to alleviate the hardship of those in straightened circumstances.  There is here a provision which allows for a contribution towards a funeral, albeit it may never equate to the total cost of even the most basic funeral – a fact which was urged and which I assume for the moment.  That does not seem to me to be an interference with this claimant’s right to respect for private and family life.  Interference has a more positive connotation in my mind.  If Mr Clark was right then logically anybody who is not able to do any thing to at least the minimum standard of civilised living would be entitled to claim from the state insofar as thereby he was not able to as full a private and family life as he otherwise might have enjoyed.  That submission, as it seems to me, is a submission too far.

9.	In this final matter I derive some support, I think, from the decision of the High Court of Justiciary, sitting as the Court of Criminal Appeal, in the case of PF Fort William v. McLean and Another June 15, 2000; (The Times, 11 August 2000), published after the hearing and so not before parties.  There the alleged limitation upon convention rights in Article 6 about the minimum for a criminal trial, was imposed by the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999.  The Court held that, as a general proposition dealing with the capping of fees for certain work in certain remote Courts, the argument that there was thereby a breach of the Convention was not persuasive.  There had, said the Court, been no proven actual loss of or failure of rights under the Article.  Here, too, the argument advanced before me was in general.  The funeral had gone ahead; there was no evidence that the account was not or could not be paid; nor was there evidence about what would, not could, happen if the claimant had not taken upon himself the responsibility for the funeral cost.  It was suggested that there would have had to be a pauper’s funeral.  There was no evidence about what that would have involved nor whether nor how that could have been said to be too out of accord with the norms of a reasonable civilised society.

10.	For the foregoing reasons this appeal must be disallowed.

					(Signed)
					W M WALKER QC
					Commissioner
					Date:  21 August 2000