R(IS) 3/02

Mr. P. L. Howell QC	CIS/3150/1999
27.7.01
Funeral payment - whether regulation restricting payments to funerals within the United Kingdom is ultra vires or contrary to the Human Rights Act 1998
On 16 December 1998 a social security appeal tribunal held that the claimant was not entitled to a funeral payment from the social fund in respect of her late husband who had been buried in Bangladesh. The claimant appealed to the Commissioner, challenging on two grounds the validity of the condition contained in regulation 7(1)(b) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 that a payment to meet funeral expenses shall be made only where a funeral takes place in the United Kingdom. First, it was argued that the condition was invalid as outside the proper and rational scope of the regulation-making powers conferred on the Secretary of State. Secondly, it was argued that the effect of the coming into force of the Human Rights Act 1998 on 2 October 2000 was to invalidate the condition as it infringed Article 14 by placing discriminatory restrictions on the ability of persons affected by it to enjoy the rights and freedoms protected by Articles 8 and 9.

Held, dismissing the appeal, that:
1.	the broad terms of the relevant enabling provisions (sections 138 and 175 of the Social Security Contributions and Benefits Act 1992) entitle the Secretary of State to exercise that power so as to prescribe conditions of entitlement which  have different effects between different people or classes of people;
2.	furthermore, given that it is not irrational per se for the Secretary of State to make regulations restricting the funerals for which public assistance is to be granted in the United Kingdom, it cannot be irrational for him to choose to make a rule restricting grants to funerals taking place on United Kingdom soil;
3.	the fact that the regulation produces a hard case or an anomaly does not necessarily make it irrational (Mummery LJ in R(IS) 8/99 Owen v Chief Adjudication Officer applied);
4.	the Human Rights Act 1998 did not have retrospective effect extending to turning past lawful decisions of courts and tribunals into unlawful ones in United Kingdom law from 2 October 2000 so as to oblige appellate courts to reverse the effect of decisions retrospectively from that date onwards (R  v Lambert [2001] 3 WLR 206, affirming Sir Andrew Morritt V-C in Wilson v First County Trust Ltd (No.2) [2001] 3 WLR at 42 and 51, applied);
5.	that being so, even if any breach of Article 14 of the Convention resulted from the operation of the regulations, that could not be a ground for the Commissioner to hold that the decision of the tribunal given on 16 December 1998 was erroneous in law.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	In my judgment there was no material error of law in the decision of the social security appeal tribunal given on 16 December 1998 that the claimant was not entitled to a funeral payment from the social fund in respect of her late husband Syed Khan who died on 8 June 1998, and her appeal against it must therefore be dismissed. 
2.	I held an oral hearing of this appeal which had been requested on behalf of the claimant. The completion of the written legal submissions of the parties, and the hearing itself, were both substantially delayed by applications from both sides for lengthy extensions of time to make and consider additional submissions, take further advice, and in the case of the claimant’s representatives seek funding to enable the case to be properly pursued on her behalf. In the end the time granted bore fruit, in that at the effective hearing before me Simon Cox of Counsel, instructed by T. V. Edwards and Co., solicitors, appeared for the claimant and Rabinder Singh of Counsel, instructed by the solicitor to the Department of Social Security, appeared for the Secretary of State; each with well prepared and presented skeleton and oral arguments focusing on the two major issues which had by then emerged as the relevant ones for determining the appeal, and quite rightly cutting out and abandoning others raised along the way but shown in the light of analysis to be not worth pursuing before me.
3.	Not for the first time, I express my regret that I am required to interpret and apply the dispiriting set of means-testing regulations that now constitute the state provision for death benefit, under the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 SI No. 481; which regulations have themselves been the subject of repeated and successive piecemeal amendment, mainly to the disadvantage of claimants, by amending instruments too numerous to mention here. The contrast between the simplicity, practicality and humanity of Lord Beveridge’s original scheme for a universal insured death grant to pay for a decent burial (“All people when they die need a funeral”) and the ignoble set of complex means-tested restrictions we have now simply could not be more stark. The proportionate cost of administering all this must be enormous, to say nothing of the cost in human terms to those subjected to it just at a time when any ordinary person or family is at their most vulnerable. 
4.	However, distaste for the subject matter does not of course mean that the system does not have to be applied by the departmental officers and tribunals in accordance with the law as it currently stands. The issues in the present case are now reduced to two major ones on the applicability of the condition in paragraph (1)(b) of regulation 7 of the funeral expenses regulations referred to above, which requires so far as material that a payment out of the “social fund” to meet funeral expenses shall be made only where the funeral takes place in the United Kingdom. 
5.	It is common ground that an alternative condition in the same sub-paragraph as it now stands, enabling funeral costs to be met for certain workers where the funeral takes place in another state within the European Economic Area, was not and could not have been applicable in this case. It is also common ground that the claimant, whose late husband died in the United Kingdom but was sent abroad to be buried in Bangladesh, met all the other relevant conditions, rather misleadingly presented in the form of one single regulation 7 but in fact comprising a whole chapter of different and in most cases cumulative conditions to be met before anything can be payable.
6.	It is also now common ground that there is no ambiguity or scope for reading reg. 7(1)(b) as meaning anything other than it says, which is that there is to be no payment at all if the funeral takes place outside the United Kingdom; and that this restriction applies even though costs of preparation and so forth are incurred within the UK which in the ordinary way would be met if the burial or cremation took place here. 
7.	That being so, Mr. Cox on behalf of the claimant based his case on a frontal challenge to the validity of reg. 7(1)(b) itself, on two alternative grounds. First he said that the condition embodied in this sub-paragraph of the regulation should be held to be invalid as outside the proper and rational scope of the regulation-making powers conferred on the Secretary of State in relation to payments out of the social fund, under sections 138 and 175 Social Security Contributions and Benefits Act 1992. This Mr. Cox submitted was because the condition as it now operated was, as he put it, “partial and unequal between classes” (cf. Kruse v. Johnson [1898] 2 QB 91, 99) since although there was admittedly no actual necessity for religious or family reasons for persons of the Muslim faith originally from Bangladesh such as the claimant’s late husband to return there to be buried, many have preferred to do so and were thus disproportionately affected. Further or alternatively the condition infringed a general principle that Parliament will not be taken to have intended the use of a regulation-making power so as to infringe fundamental rights or legislate in an inherently discriminatory manner; it should therefore be declared void as ultra vires and irrational. 
8.	Alternatively, Mr. Cox submitted that although the tribunal decision was given on 16 December 1998 its assessment of the law had now been overtaken by the coming into force of the Human Rights Act 1998 on 2 October 2000, and the effect of that Act was to override and make invalid the condition in reg. 7(1)(b). This was because although Mr. Cox expressly conceded that its provisions did not give rise to any direct infringement of either Article 8 or Article 9 of the Convention on Fundamental Rights and Freedoms (right to respect for private and family life; and freedom of thought, conscience and religion) nevertheless there was in his submission an infringement of Article 14 (prohibition of discrimination) in that the sub-paragraph placed discriminatory restrictions on the ability of the persons affected by it to enjoy the rights and freedoms protected by Articles 8 and 9, in that persons of other faiths who were buried in the United Kingdom, or persons of similar Muslim faith who wished for family reasons to be buried in the United Kingdom, would have their funeral expenses paid while those of the Muslim faith who wished for family reasons to be buried in Bangladesh would not. 
9.	A very large amount of material and authority was cited to me over two full days of oral argument, but while I have considered all the submissions made to me I have concluded that it is not necessary to refer to them or the material cited to me in any great detail, as the first question on ultra vires and irrationality is in my judgment simply a matter of applying established principle to the interpretation of the enabling powers in their statutory context, and the claimant’s argument on the overriding effect of the Human Rights Act in relation to the decision of the tribunal given on 12 December 1998 has been conclusively answered by a recent decision of the House of Lords. 
10.	The relevant enabling powers in sections 138 and 175 of the Social Security Contributions and Benefits Act 1992 are in the broad and almost unqualified terms that will be familiar to those having experience of the subordinate legislative powers Parliament has been persuaded to entrust to the Secretary of State in this particular legislation: cf. reported case R(IS) 8/99 Owen v CAO, CA 29 April 1999. They provide so far as material as follows.
11.	By section 138:

 “138.––(1) Payments may be made out of the social fund, in accordance with this part of this Act, 

(a) of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, maternity expenses and funeral expenses; and 

(b) to meet other needs in accordance with directions given or guidance issued by the Secretary of State. …

(4) In this section ‘prescribed’ means specified in or determined in accordance with regulations.”
	and by section 175: 
“175.––(1) .… regulations and orders under this Act shall be made by the Secretary of State.

(2) Powers under this Act to make regulations, orders or schemes shall be exercisable by statutory instrument. 

(3) …. any power under this Act to make regulations or an order may be exercised ––

(a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case; 

(b) so as to make, as respects the cases in relation to which it is exercised –– 

(i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise), 

(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case or different provision as respects the same case or class of case for different purposes of this Act, 

(iii) any such provision either unconditionally or subject to any specified condition;”
12.	In the face of an enabling power such as that it seems to me completely impossible to argue that it is outside the scope of the statutory intendment for the Secretary of State to exercise the regulation-making power so as to prescribe conditions of entitlement which happen to have different effects between different people or classes of people. It further seems to me impossible to argue that, given that it cannot be irrational per se for the Secretary of State to make regulations restricting for financial, public health or any other reasons he thinks fit the funerals for which public assistance is to be granted in the United Kingdom (that was not contended), it can be “irrational” in the relevant sense for him to choose to make a rule restricting grants to funerals taking place on United Kingdom soil, rather than for example a rule making a grant conditional on death having taken place in the United Kingdom. 
13.	The fact that the regulation produces a hard case or an anomaly does not necessarily make it irrational (per Mummery LJ in Owen v CAO, supra); and the kinds of anomalies or differentiations suggested by Mr. Cox here are not in my judgment remotely within the scope of the “irrationality” principle as it has been developed in relation to subordinate legislation. It is further significant that it never seems to have been suggested at any stage of the proceedings in O’Flynn v CAO [1998] ICR 608 that irrationality was a potential ground of challenge to the validity of the rule as it then stood in domestic law. The amended rule which followed the judgment of the European Court of Justice in that case (reg. 7(1)(b) as substituted by reg. 5 1997 SI No. 2538 from 17 November 1997), by which the restriction of payments to UK funerals was modified to the extent necessary for compliance with the United Kingdom’s treaty obligations in relation to migrant workers but no further, is no more “irrational” than the original one for the fact that it leaves some people one side of the line and some the other. 
14.	The authorities cited to me on the Human Rights Convention are similarly unnecessary for me to consider since I accept Mr. Rabinder Singh’s argument that even if (which I doubt, but do not need to decide) any breach of the provisions of Article 14 of the Convention was arguably involved in the way these regulations operate, that could not be a ground for me to hold the decision of this tribunal given on 16 December 1998 to have been erroneous in law, which is the condition on which I must be satisfied under section 14 Social Security Act 1998 before I have any power to set it aside. 
15.	The effect and interaction of sections 3, 6, 7 and 22 of the Human Rights Act in relation to appeals from inferior tribunal decisions given before 2 October 2000 was much debated before me but the argument that Mr. Cox sought to advance in this appeal, that the 1998 Act had a retrospective effect extending even to turning past lawful decisions of courts and tribunals into unlawful ones in United Kingdom law from 2 October 2000 and to obliging appellate courts to reverse the effect retrospectively from that date onwards, has now conclusively been shown to be untenable: see R v Lambert [2001] 3 WLR 206, affirming what was said by Sir Andrew Morritt V-C in Wilson v First County Trust Ltd (No. 2) [2001] 3 WLR 42, 51; and cf. also the recent decision of the Tribunal of Scots Commissioners in case CSDLA/1019/99. 
16.	For those reasons, this appeal is dismissed. 

Date: 27 July 2001						       (signed) P. L. Howell
Commissioner