[2004] UKSSCSC CIS_1345_2004 (18 August 2004)

THE SOCIAL SECURITY COMMISSIONERS

Commissioners Case No.: CIS 1345 2004

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER: 
Dr David Williams

Claimant:	
Tribunal:	Liverpool
Tribunal Date:	19 December 2003
Tribunal Register No:	

CIS 1345 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. I refer the appeal to a new tribunal to consider in accordance with the directions in this decision.  (Social Security Act 1998, section 14(8) and (9)). 

2	The claimant and appellant, Mr O, is appealing with permission of a chairman against the decision of the Liverpool appeal tribunal on 19 December 2003 under reference U 06 068 2003 01574
  
3	DIRECTIONS FOR REHEARING

A	The rehearing will be at an oral hearing. 

B	The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.
 
C	If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. 

These directions are subject to any later direction by a district chairman. 

REASONS FOR THE DECISION 

4	Mr O claimed a social fund funeral payment on behalf of himself and his partner for the funeral of their son. They were receiving income support at the time and were awarded a grant of £1,172.74.  This met the costs of a basic funeral for their son as invoiced by the funeral directors. Mr O also asked for a payment for suitable funeral attire for him and his partner and their other children and also funeral flowers.  He produced invoices for the amounts claimed.  It later appeared that the grant covered the cost of the flowers.  All the items of clothing were refused because “they were not considered to be an essential part of funeral costs”.  Mr O appealed against that refusal.

5	For reasons no longer relevant, Mr O did not attend the tribunal hearing. In his absence, the tribunal confirmed the decision to refuse any award for clothing. In its decision notice it summarised its decision as follows:

“I do not accept that clothing forms part of funeral expenses as contemplated in Regulation 7(A)(2)(g) Funeral Expenses General Regulations. Unlike the other items described in Regulation 7(A)(2) the clothing is not wholly exclusively and necessarily required for the funeral but can be used for other purposes and should not be treated as a necessary expense of the funeral.”

The tribunal later issued a formal statement of reasons which said that it had little to add to the statement on the decision notice, and repeated the “wholly”, “exclusively” and “necessarily” tests. 

6	The relevant regulations are regulations 7 (entitlement), 7A (amount of funeral payment) and 8 (deductions from an award of a funeral payment) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987. All the conditions of regulation 7 are accepted as met in this case, and there is nothing of relevance in regulation 8.  The relevant parts of regulation 7A are: 

(1) … 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 … and which are specified in paragraph (2), inclusive of any available discount on those costs allowed by the funeral director or by any other person who arranges the funeral.

(2) The costs which may be met for the purposes of paragraph (1) are –

(g)	any other funeral expenses which shall not exceed £700 in any case.

7	This appears to be the first decision of a Commissioner on this aspect of the scope of regulation 7A(2)(g). I can see no basis in the legislation for importing into this rule a rule that derives from the taxation of employment income. I therefore asked the secretary of state's representative whether, in the view of the Secretary of State, the cost of clothes purchased for use at a funeral could be claimed under this provision. The secretary of state's representative replied, with reasons:

I submit therefore that in principle if the clothing is decided to be a funeral expense then a claim for an amount in respect of it under subparagraph (g) can be met subject to the prevailing maximum allowable amount. 

I accept and agree with that submission. 

8	There is no basis in law for restricting the scope of Regulation 7A(2)(g) beyond the words actually used in the regulation.  Neither the “essential” test used in the original decision nor the “wholly, exclusively and necessarily” test used by the tribunal are valid.  The only tests for applying regulation 7A(2)(g) are:
(i) Were the expenses in fact funeral expenses that took into account any relevant discounts?
(ii) If so, were the expenses met by the claimant or partner (or will they be)?  
(iii) If so, were they of a nature covered by any of the provisions in regulation 7A(2)(a) to (f)? 
(iv) If not, do they exceed the set sum? 
If they do not, they are allowable. 
 
9	I was asked to decide this case on the facts. I think it better to refer the matter to a tribunal so that the claimant can attend and be heard before the necessary facts are found. 
It will be for the tribunal to apply these tests to the evidence, taking into account the submission of the secretary of state's representative.

								David Williams
								Commissioner

								18 August 2004
[Signed on the original on the date shown]