[2004] UKSSCSC CIS_1228_2004 (23.06.2004)

1.	This appeal, brought with my leave, succeeds.  The decision of the tribunal on 3 2 04 was wrong in law, because it too readily accepted the DWP’s questionable view that registering a death is enough in itself to show that the person who does so cannot have been estranged from the deceased.  I set the decision aside and remit the appeal to a differently-constituted tribunal for rehearing.  I cannot make the decision myself, because some more evidence is needed, and also because the claimant wants an oral hearing and it is far more convenient for this to take place before a local tribunal.  

2.	The claimant is the daughter of the deceased and cared for him.  She may well have had more contact with him than even her local siblings (brothers or sisters), but comparative closeness is not the test in this case.  What would rule her out of a successful claim for a funeral payment is if she has even one sibling (“immediate family member”) who was not estranged from the deceased and who was not in receipt of a qualifying benefit at the date of claim:   Social Fund Maternity and Funeral Expenses (General) Regulations 1987, regulation 7(3).  Qualifying benefits are the means-tested benefits set out in the claim form (page 64 of the papers). 

3.	The claimant has three sisters and two brothers.  She gave details on her claim form about their degree of contact with their father.   While I must not pre-empt the rehearing tribunal’s judgment, I can say that it would be open to it to find on the claim form evidence, as seems to have been accepted, that both the brother and the sister who live elsewhere were estranged from their father.  

4.	Sylvia’s position depends entirely on whether or not she was estranged from her father.  The claimant is adamant that despite living locally she did not visit him.  She has explained on her OSSC1 why she asked Sylvia to register the death.  She herself has difficulties reading and writing.  But a reason like this is not necessarily needed.  It may simply have been more convenient for Sylvia to do the registering, if the claimant was busy doing other things.  Registering the death is not enough of itself to rule out estrangement. If the tribunal accepts that Sylvia was estranged during her father’s life, her non-receipt of a qualifying benefit becomes irrelevant. 

5.	The local brother and sister were clearly not estranged, so their significance depends on their benefit position.  The brother was receiving income-based JSA, so he is ruled out as an immediate family member.  But all the claimant has said about Ada (who lives next door to her) is that she is getting “disability benefit”.  If this means either disability living allowance or industrial injuries disablement benefit, or indeed incapacity benefit, it is not enough to rule her out as an immediate family member.  None of these benefits is means-tested.  Unless Ada was at the date of claim getting one of the listed means-tested benefits, then unhappily for the claimant her claim will fail again because Ada will be an immediate family member who was not estranged from her father and was not at the date of claim in receipt of a qualifying benefit.  	

6.	These rules are, as has frequently been said, strict.  Sylvia (if relevant) and Ada may not have enough money easily to pay for the funeral, but that is neither here nor there.  Other people on low incomes have the same difficulty, but there is no help available for them.      		

7.	I must make clear that the claimant’s own inability to pay the bill if she does not get a funeral payment is irrelevant, however harsh it may seem.  The law is as I have tried to explain it, and neither I nor a tribunal can do other than apply it.  	

8.	The rehearing tribunal will investigate the appeal afresh, as outlined.  If it does allow the appeal, the claimant will also have to realise that it cannot award the whole of the bill, but only those items permitted under regulation 7A.

9.	I criticised the state of the papers when I gave leave to appeal.  The Secretary of State’s officer has kindly obtained some more.  But I direct that a further submission be provided for the rehearing which will (a) give information on the benefits Ada was receiving at the relevant time, including housing and council tax benefit if any, and (b) set out the DWP view of which items of the funeral account can and which cannot be covered under regulation 7A.

10.	I am sorry there will be further delay for the claimant, but she is advised to go to the tribunal’s rehearing.  

							(signed on original)		Christine Fellner
												Commissioner

												23 June 2004