CIS/3280/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given on 31 May 2001 is not erroneous in point of law.  I therefore dismiss the appeal.

2.	The claimant, who is a widow now aged 79, lives in local authority residential accommodation provided under Part III of the National Assistance Act 1948.  On 15 November 2000 the claimant’s brother died and the claimant, as her brother’s only surviving relative, accepted liability for his funeral expenses.  On 12 January 2001 she claimed a funeral payment because she was unable to meet the full cost of the funeral from her own and her brother’s resources, but on 15 January 2001 a Social Fund Officer refused the claim because the claimant was not in receipt of income support, or any of the other income-related benefits which qualify a claimant for an award of a funeral payment.  

3.	Prior to the changes to the Income Support (General) Regulations 1987 made by the Social Security Amendment (Residential Care and Nursing Homes) Regulations 2001, regulation 21 and paragraph 13 of Schedule 7 of the Regulations provided for residents of local authority residential homes to have a fixed ‘applicable amount’ for income support purposes.  The claimant did not qualify for income support because the income from her retirement pension exceeded that amount, but she would have been entitled to income support if she had been a resident of an independent residential home, because under the regulations in the form in which they were at that time her applicable amount would have included a personal allowance, a pensioner’s premium, and a residential allowance.  The question in this appeal is whether the refusal of a funeral payment to the claimant in those circumstances contravened the prohibition on discrimination in Article 14 of the European Convention on Human Rights, when read with Article 8 of the Convention. 

4.	Funeral payments are non-discretionary Social Fund benefits, governed by Part III of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987, which are payable in respect of funerals taking place in the United Kingdom of persons ordinarily resident in the United Kingdom at the date of death (subject to exceptions in the case of EU and similar categories of workers). By regulation 7(1), in the form then in force, a claimant who accepted responsibility for funeral expenses qualified for a funeral payment if he or she was the partner of the deceased or, in the case of a deceased child if the claimant or the claimant’s partner was responsible for the child for child benefit purposes, if at the date of the claim the claimant or the claimant’s partner (the ‘responsible person’) had an award of income support, income based jobseeker’s allowance, family credit, disability working allowance, housing benefit or council tax benefit.  If the deceased had no partner, a claimant who was an immediate family member of the deceased (parent, son or daughter), or if there is no immediate family member, a close relative or close friend of the deceased can qualify for a funeral payment if it is reasonable for the responsible person to accept responsibility for the funeral expenses, but  such cases are subject to regulation 7(3):

“Subject to paragraph (4), the responsible person shall not be entitled to a funeral payment where he is an immediate family member, a close relative, or a close friend of the deceased and-
(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 no their partners have been awarded (a qualifying benefit;
(c)	any of the immediate family members to which sub-paragraph (b) above refers was not estranged from the deceased at the date of his death.”

Regulation 7A specifies the funeral expenses which can be met by a funeral payment, but regulation 7A(4) provides that the cost of purchasing a burial plot and burial costs, and certain  transport costs, must not be taken to include any element which relates to a relevant requirement of the deceased’s religious faith.

5.	The claim for a funeral payment in this case was made after the commencement of section 6 of the Human Rights Act 1998 on 2 October 2000, so that in determining the claim it was unlawful for the Secretary of State or the tribunal to act in a way which was incompatible with a Convention right.  By section 1(1) of the 1998 Act, those rights include the rights conferred by Articles 8 and 14 of the Convention, which provide:

Article 8

Right to respect for private and family life

1.	Everyone has the right to respect for his private and family life, his home and his correspondence.

2.	There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health of morals, or for the protection of the rights or freedoms of others.

Article 14

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

6.	As is well known, Article 14 does not create a free-standing prohibition against discrimination, but requires equality of access to other Convention rights.  Article 14 can therefore apply even if there has been no breach of another Convention obligation, provided that the facts fall within the ambit of one or more other Articles-see Abdulaziz Cabales and Balkandali v UK (1985) 7 EHRR 471.  In applying Article 14, it is useful to take as a starting point the approach suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000), which was followed by the Court of Appeal in Wandsworth London Borough Council v Michalak [2002] 4 All ER 1136 and Stanley Burnton J. in R (Carson) v The Secretary of State for Work and Pensions and The Commonwealth of Australia [2002] EWHC 978 (Admin.) 24 February 2003.  That approach requires consideration of four questions:

i.	Do the facts fall within the ambit of one or more of the substantive Convention provisions?

ii.	If so, was there different treatment as respects that right between the complainant on one the one hand and other persons put forward for comparison on the other?

iii.	Were the chosen comparators in an analogous situation to the complainant’s situation?

iv.	If so, did the difference in treatment have an objective and reasonable justification: in other words did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?

7.	In Petrovic v Austria (1998) R.J.D. 1998-II the European Court of Human Rights held that the availability of parental leave to mothers, but not fathers, of children did not amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.  I agree with the submission on behalf of the Secretary of State that Article 8 does not impose on States any direct duty to make funeral payments and that, in accordance with the principles set out in paragraph 29 of the Petrovic judgment, the question to be considered in relation to Article 8 in a discrimination case is whether the provisions for the making of funeral payments constitute a demonstration by the State of respect for family life.  It is clear from cases such as W v United Kingdom (1987) 10 E.H.R.R. (child in care), Beldjoudi v France (1992) 14 E.H.R.R. 801 (partner in a relationship in prison) and Berrehab v The Netherlands (1988) 11 E.H.R.R. 322 (divorce) that the protection afforded by Article 8 may continue even after the members of a family have ceased to live together as a family unit.  In my view, therefore, there is no reason why the claimant’s right to respect for her family life should not have continued even after the only other member of her immediate family had died.

8.	I consider that the Social Fund funeral payment provisions do fall within the ambit of Article 8 of the Convention.  Section 46(1) of the Public Health (Control of Disease) Act 1984 imposes on every local authority a duty to cause to be cremated or buried the body of any person who has died or been found dead in the area of the authority, where it appears that no suitable arrangements for the disposal of the body have been or are being made.  However, that duty arises under the public health legislation and, apart from a duty to respect any wishes by the deceased not to be cremated, a local authority is under no obligation to arrange for the funeral to be conducted in accordance with the wishes of the deceased or the deceased’s family (although local authorities usually discharge their duties under these provisions very sensitively).  Regulation 7A of the funeral payment regulations allows only certain funeral costs to be met by a funeral payment and paragraph 7A(4) prohibits costs relating to the requirements of a deceased’s religious faith from being included in the cost of certain items and services, but otherwise there is nothing in the provisions to prevent a funeral from being conducted in accordance with the wishes, customs and traditions of the deceased and his or her family.  The unusual (if not unique) provisions in regulation 7 requiring determination of whether it is reasonable for the ‘responsible person’ to accept responsibility for the funeral expenses and the provisions for comparing the nature and extent of the responsible person’s contact with the deceased with that of the deceased’s other relatives presuppose a priority of obligation for accepting financial responsibility for the funeral according to the closeness of members of the family to the deceased.  In my judgment, what Mr Commissioner Howell QC aptly described in CIS/3150/1999 as the “dispiriting set of means tested regulations” in Part III of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987, which allow financially disadvantaged members of society to discharge their family obligations to arrange for the funeral of a family member in accordance with the family’s customs, traditions and religious or other observances, constitute a demonstration by the State of respect for one of the most solemn and fundamental manifestations of family life.

9.	I therefore turn to consider whether there was different treatment, as respects the provision of a funeral payment, between the claimant on the one hand, and on the other hand a resident of an independent residential home with the same capital and income resources as the claimant.  However, as the Commission pointed out in Carlin v United Kingdom (App. No. 27537/95) and P v UK (App. No. 14751/89) it is not every difference in treatment that constitutes discrimination, and there has recently emerged a difference in judicial view on the issue of whether there is only a breach of Article 14 if a difference in treatment is based on a ‘personal characteristic’ by which persons or groups of persons are distinguished from each other.

10.	In St. Brice and another v Southwark London Borough Council [2001] All ER (D) 209 the Court of Appeal held, citing Kjelsden Madsen and Pedesen v Denmark (1976) 1 EHRR 711, that in order to succeed in a claim under Article 14 an individual must show that he has been discriminated against on the basis of a personal characteristic.  However, in the Michalak case, a defendant in a possession action brought by a local authority in respect of premises let under a secure tenancy who was excluded from being treated as a member of the deceased tenant’s family by section 87 of the Housing Act 1985 contended that he had been discriminated against under Article 14, read with Article 8, because the provisions in the Rent Act 1977 governing the entitlement of members of a tenant’s family to succeed to protected tenancies contained no such exclusion.  The Court of Appeal, without referring to St. Brice, held that it was not necessary to establish a ‘personal characteristic’ in order to succeed in an Article 14 claim.  Brooke LJ said (paragraphs 32-34):

“ 32.  I reject the argument advanced by Mr John Howell, who appeared for the Secretary of State, that it is necessary to find some ‘personal characteristics’ in common with the comparators relied upon.

33.  Mr Howell relied in this context on the judgment of the European Court of  Human Rights in Kjelsden v Denmark 1 EHRR 711 at 732-733 ( para. 56) in support of this argument, for in that case the court-

‘first  points out that Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (“status”) by which persons or groups of persons are distinguishable from each other. ‘

In later cases, however, the Strasbourg authorities looked favourably on complaints of Article 14 discrimination brought by owners of non-residential as opposed to residential buildings (see Spadea v Italy (1996) 21 EHRR 482), the owners of a pit bull terrier as opposed to the owners other breeds of dog (see Bullock v UK (1996) 21 EHRR CD 85) and small landowners as opposed to large landowners (see Chassagnuy v France (2000) 7 BHRC 151).  The narrow approach evidenced in Kjelsden v Denmark appears to have been superseded in these more recent decisions.”

11.	In Carson, which was concerned with the failure of the Secretary of State to uprate the retirement pensions of pensioners resident in certain countries abroad, Stanley Burnton J stated (at paragraph 52 of the judgment) that in Michalak Brooke LJ may have intended to encapsulate the Article 14 ‘status’ issues in the question of whether the comparators were in an analogous position with the claimant, but the judge did not specifically address the differing views expressed by the Court of Appeal in St. Brice and Michalak.  However, the  conflicting positions were expressly considered by Sir Richard Tucker in R (Barber) v Secretary of State for Work and Pensions [2002] 4 All ER 1136, [2002] EWCA Civ 271, in which the judge rejected the argument that the refusal of the Secretary of State to ‘split’ child benefit between parents with the shared care of children under regulation 34 of the Social Security (Claims and Payments) Regulations 1987 constituted discrimination under Article 14.  Dealing with the question of whether discrimination under Article 14 needs to be based on a personal characteristic, the judge said (paragraphs 28-34):

“(28) The Defendants contend that there has been no discrimination falling within art 14 because no personal characteristic has been identified upon which discrimination could be said to be based.   They submit that the cases show that this is a requirement.  Mr Drabble submits to the contrary and that the personal characteristics test was expressly rejected by the Court of Appeal in Michalak v London Borough of Wandsworth (2002) EWCA Civ 271 , a  judgment delivered on 6 March 2002.   Mr Drabble relies on the judgment of Brooke LJ and in particular  para 32:

    “I reject the argument advanced by Mr John Howell QC who appeared for the Secretary of State, that it is necessary to find some personal characteristic in common with the comparators relied upon”
.
(29) However, there is another decision of the Court of Appeal which appears to be to the contrary effect and which was not considered by the Court in Michalak.  I refer to Southwark LBC v St Brice (2001) EWCA Civ 1138, (2002) 1 WLR 1537.  I cite from the judgment of Kennedy LJ at p 1545, paras 23 and 24:

“23.  As Mr Ivimy pointed out, in order to establish an infringement of article 14 the tenant must show that (1) he has been treated less favourably (2) in the exercise of his Convention rights (3) as compared with others who are in an analogous position (4) on grounds which are capable of founding a complaint of discrimination under article 14 and (5) for reasons which are not objectively justified.  In fact the tenant was not treated less favourably than a Defendant in the High Court.  He had an equal opportunity to require the court to hear him before eviction. The alleged discrimination did occur within the field of Convention rights (articles 6 and 8), but the tenants’ position was not really analogous to the position of the Defendant in the High Court  because High Court procedure is significantly different, as recognised by this court in the Jephson Homes case (2001) 2 All  ER 901 and by the European Commission of Human Rights in DP v United Kingdom (1986) 51 DR 195, 213 where it was accepted that country court procedures ‘are designed  with an eye to greater simplicity than those in the High Court, with a resultant reduction in costs and complexity’.

24. Even more significantly in order to establish a claim under art 14 an individual must show that he has been discriminated against on the basis of ‘a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other’: Kjeldsen, Busk Madsen and Pedersen v Denmark  (1976) 1 EHRR 711, 733, para 56.  The landlord’s choice of forum of founding a claim for discrimination under art 14.”

(30)  Mr Drabble comments that certain decisions of the European Court of Human Rights upon which he relies were not cited to the court in St Brice. He refers to the 1996 decision in Stubbins v UK 23 EHRR 213 and the 1997 case of National and Provisional Building Society & Ors v UK 25 EHRR 127 and to the fact that in neither of those cases did the court say that personal characteristics should be demonstrated.

(31) Nevertheless there are other decisions which in my opinion amply support the view expressed by Kennedy LJ in St Brice.

(32)  The first of these is the decision of the European Court of Human Rights in Magee v UK 2002, 31 EHRR 35 where the court referred on two occasions to personal characteristics as a ground for discrimination.  In addition there are two decisions of the English courts to the same effect upon which I place strong reliance. 

(33) In  The Queen (On the application of the personal representatives of Beeson) v Dorset County Council (2002) HRLR 368, Richards J having referred to Mageee and to St Brice, also referred to the question of personal characteristics, though in that case the discrimination arose out of objective differences  between various statutory regimes.

(34)  In Hooper v Secretary of State  for Work and Pensions (2002) EWHC 191 (Admin), Moses J said that he felt compelled to follow the general principle enunciated by the Court of Appeal:

“In those circumstances, the absence of any personal characteristic found in the claim for discrimination  under Article 14 affords an additional ground for rejecting the contention that the two groups of litigant widowers were in analogous situation for the purposes of Article 14”

Therefore if and in so far as the cases of Michalak and St Brice are in conflict, I unhesitatingly prefer the views of and accept the formulation proposed by Kennedy LJ in St Brice.  In a case decided very recently by Stanley Burnton J the judge having been referred to Michalak still appeared to believe that there was a requirement to show that the discrimination was based on some aspect of personal status (see Carson v Secretary of State for Work and Pensions (2002) EWHC 978 (Admin)”.

12.	I respectfully agree with the reasons given in Barber for holding that it is necessary to establish a difference in treatment based on status in order to succeed in a claim under Article 14.  However, the Beeson case, to which the judge referred, was also concerned with a comparison of the position of persons receiving assistance under Part III of the 1948 Act and those receiving assistance by way of income support, and in that case Richards J expressed the view, with which I entirely agree, that the question of “status” under Article 14 is closely linked with the need to establish that the claimant and the members of the comparator group are in an analogous situation.  In Beeson the applicant contended that the authority had misconstrued section 25(1) of the National Assistance Act 1948 in deciding that he had deprived himself of his house in circumstances such that the value of the property fell to be taken into account as ‘notional capital’, and that the procedures for challenging the authority’s decision under regulation 25 of the National Assistance (Assessment of Resources) Regulations 1992 contravened Article 6 of the Convention.  However, the applicant also contended there was a breach of Article 14 when read with Article 6, on the ground that there was no right of appeal in respect of decisions made under section 25 of the 1948 Act equivalent to the rights of appeal against similar decisions in social security cases made under regulation 51 of the Social Security Income Support (General) Regulations 1987.  Because the judge held that there had been a breach of Article 6, it was not strictly necessary for him to consider the discrimination question, but he dealt with the Article 14 issues as follows:
“107.  In practice the question of "status" within Article 14 is closely linked with the need to establish discrimination between persons in a relevantly similar position. In National & Provincial Building Society and Others v. United Kingdom (1998) 25 EHRR 127 the European Court did not even mention "status" as a separate issue but stated (para 88):
“The Court reiterates that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention.  However, not every difference in treatment will amount to a violation of this Article.  Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction …”
108.  In Magee v. United Kingdom (judgment of the European Court of Human Rights dated 6 June 2000), a case involving an alleged difference of treatment of detained suspects in Northern Ireland as compared with other parts of the United Kingdom, the court stated (para 50):
“The Court recalls that Article 14 of the Convention protects against a discriminatory difference in treatment of persons in analogous positions in the exercise of the rights and freedoms recognised by the Convention and its Protocols.  It observes in this connection that in the constituent parts of the United Kingdom there is not always a uniform approach to legislation in particular areas.  Whether or not an individual can assert a right derived from legislation may accordingly depend on the geographical reach of the legislation at issue and the individual's location at the time.  For the Court, in so far as there exists a difference of treatment of detained suspects under the 1988 Order and the legislation of England and Wales on the matters referred to by the applicant, that difference is not to be explained in terms of personal characteristics, such as national origin or association with a national minority, but on the geographical location where the individual is arrested and detained.  This permits legislation to take account of regional differences and characteristics of an objective and reasonable nature.  In the present case, such a difference does not amount to discriminatory treatment within the meaning of Article 14 of the Convention.”
109.  In so far as it arises as a separate issue, as I think it must do on the authority of St Brice, I accept Mr Giffin's submission that the discrimination alleged here is not based on the personal characteristics of the claimant.  The mere fact that a claimant to, for example, income support has a right of appeal to an independent tribunal whereas Mr Beeson had no such right of appeal in respect of the charges payable for accommodation offered to him under the 1948 Act is nothing to do with his personal characteristics.  It arises instead out of objective differences between the various statutory regimes. 
110.  That leads straight into the question whether Mr Beeson was in a relevantly similar situation to that of an applicant for income support or like benefit.  I accept the thrust of Mr Giffin's submissions that he was not.  There are undoubted similarities in relation to means-testing, to which I have referred in support of my conclusion that Article 6(1) applies.  But the decision-maker is different and there are various differences in the statutory schemes, including the discretionary elements in the scheme under the 1948 Act.  Overall, I accept that it is not appropriate to isolate one aspect of two disparate schemes for the purposes of Article 14 and to demand precise equivalence of treatment under them.
111.  Mr Giffin relies in the further alternative on the existence of an objective justification for any discrimination that might otherwise be found to exist under Article 14.  The issue raises similar points to those I have already considered, but I do not think it necessary in the circumstances to reach any conclusion on the issue.
112.	For the reasons I have given, I reject the claimants' case under Article 14.”
On an appeal by the Secretary of State against the judge’s decision, the Court of Appeal (Butler-Sloss P. Waller and Laws LJJ) held at [2002] EWCA Civ 181 December 18 2002 that the availability of judicial review to challenge decisions made under regulation 25 of the National Assistance (Assessment of Resources) regulations 1992 prevented regulation 25 from contravening Article 6 but, although there was a cross-appeal, the Court of Appeal did not indicate any disagreement with the approach to Article 14 taken by Collins J at first instance.
13.	I respectfully agree with Collins J that the differences in the position of a person whose needs are provided for under Part III of the National Assistance Act 1948 and a person in an independent residential home whose needs are met through income support are unrelated to personal characteristics, but arise instead out of objective differences between the two statutory regimes.  Sections 22(1) and 22(2) of the 1948 Act require authorities to charge for accommodation provided under Part III in accordance a standard rate representing the full cost of providing the accommodation, but section 22(3) requires that the charging provisions be means tested and section 22(4) directs that every resident be allowed, or receive, a minimum weekly personal allowance of an amount prescribed each year by the National Assistance (Sums for Personal Expenses) Regulations.  Under the income support scheme formerly applicable to residents of independent residential homes, claimants received the normal income support personal allowances and premiums and a residential allowance, but were liable to pay the full residential home charges.  Although the rules for the assessment of capital and income are similar under both regimes, there are also important differences, in that under the 1948 Act a partner’s capital and income are not taken into account. There are also additional provisions in the Part III scheme for disregarding the capital value of a resident’s former home.
14.	This case differs from Beeson, in that it is not strictly speaking concerned with entitlement to benefit under either of the two statutory regimes under consideration, but with entitlement to a separate benefit.  For most practical purposes, the claimant could also be regarded as in a similar position under both schemes, since the personal expenses allowance to which she was entitled was calculated to give her the same disposable income as if she had been on income support.  However, I again agree with Collins J that it is not appropriate to isolate one aspect of two disparate schemes as the basis of a case for requiring equivalent treatment.  The claimant’s rights in respect of a funeral payment formed only one element in the overall scheme of social assistance which was applicable to her and, for the purposes of deciding whether the claimant was in an analogous position to members of the group provided with assistance by way of income support, I consider that it is necessary to compare the two schemes of assistance as a whole.  The differences between the two schemes seem to me to be at least as great as the differences between the statutory schemes governing rights to succession of tenancies in the private sector governed by the Rent Act 1977 and those in the public sector governed by the Housing Act 1985, which were held by the Court of Appeal in Michalak to be sufficient to prevent the applicant in that case from being considered as in an analogous situation to tenants protected under the Rent Acts.  In my judgment, the differences between the scheme of assistance for those in need of care and attention provided for by Part III of the 1948 Act and the former provisions for funding the care of the elderly in independent residential homes contained in the Income Support (General) Regulations 1987 are such as to prevent the claimant from being treated as being in an analogous situation to residents of independent homes funded by income support.  In the light of that conclusion, I do not consider it necessary to consider whether the difference in treatment of the claimant as respects her claim for a funeral payment in comparison with a hypothetical claim by a resident of an independent home was objectively or reasonably justified.
15.	The recent changes in the legislation have resulted in the position of  residents of local authority residential homes becoming more closely assimilated with that of residents of independent homes for income support purposes.  However, on the basis of the legislation as it stood at the relevant time, I consider for the above reasons that the rejection of the claim for a funeral payment did not give rise to a breach of the Human Rights Act 1998. The tribunal were therefore correct to apply Regulation 7 of the Social Fund (Maternity and Funeral Expenses (General) Regulations 1987 in its terms and,  accordingly, I dismiss the appeal.

(Signed)	E A L Bano
		Commissioner
(Dated)	25 February 2003