[2004] UKSSCSC CIS_1924_2004 (19 August 2004)

Social Fund Funeral Payments reg. 7A(2)(g) "any other funeral expenses" where cremation paid for by hospital - consideration of individual items of expenditure

1.	This appeal, brought with leave of a district chairman, succeeds.  The decision of the tribunal on 9 3 04 was erroneous in law, as explained below, and I set it aside.  But I have power under s14(8)(a)(ii) of the Social Security Act 1998 to make findings of fact and give the decision I consider appropriate in the light of them.  This is that the claimant is entitled to a funeral payment of £26.75 in respect of the death of John S. 

2.	The deceased was the father of the child of whom the claimant and her husband are guardians.  The claimant receives child tax credit.  The child was eight when her father died, and I think I am right in saying that she has been with the claimant and her husband for a considerable time.  Her mother had disappeared. The deceased, who was of no fixed abode, nonetheless came regularly to see her and take her out every fortnight, and sometimes spoke to her by telephone.  The last time he did so was on Christmas Day 2002.  The claimant obviously saw the deceased regularly when he came to see the child, she probably spoke to him when he telephoned, and her evidence was that she regarded him as a son.  

3.	The deceased died in Reading on 31 12 02.  The claimant’s family tried to find out what had happened when he missed the visit due on 4 1 03, by telephoning the contact number that he had given them, but the line was out of order and not repaired until 18 1 03.  Then they discovered what had happened.  Efforts were made both by the hospital where he died and by the claimant to trace the deceased’s relations, but these did not succeed, and he was finally cremated on 30 6 03, the cost (save for £150 which the deceased had on him) being covered by the hospital.  But the family wanted, rather than that the ashes be disposed of in a common grave, to have them buried locally so that his daughter could visit and remember him.  They paid for the ashes to be transported to South Wales (£12.45), for flowers (£14), for obituary notices in two local papers (£26.74), for a memorial stone and flower container (£170) and for a Church in Wales fee (£42): a total of £265.19.  

4.	The tribunal upheld the Secretary of State’s decision that the claimant was not a “close friend” of the deceased within regulation 7(1)(e)(iv)(bb) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987.  It decided this on the basis that as the child’s foster-parent (incorrect), it was apparently not possible for the claimant to be classed as a close friend.  This may not have been what was meant, but it is what was said.  The tribunal added that it had taken the claimant 18 days to find out what had happened; but this had been explained as set out above.

5.	A district chairman gave leave to appeal, wondering whether on the evidence the claimant could not be treated as a close friend, and also whether some or all of her expenses could not be treated as any other funeral expenses under regulation 7A(2)(g): “any other funeral expenses which shall not exceed £700” (or in certain circumstances £100).

6.	The Secretary of State’s officer submits that the claimant can be treated as a close friend, on the basis of her statement at the hearing that she regarded the deceased as like a son to her.  The tribunal did not deal with this evidence at all, and therefore erred.  There are numerous obstacles in regulation 7 to a close friend being permitted to take responsibility for the funeral (the existence of non-estranged immediate family members or close relatives not on benefit), but in this case efforts to trace such persons in the months following the death failed.  No question could therefore arise about their benefit status, while the claimant herself was receiving tax credit, a “qualifying benefit” under regulation 7(1)(a)(i).  I am willing, without remitting the appeal to another tribunal, to hold that the claimant was a close friend, and it was reasonable for her to accept responsibility for any allowable expenses incurred in bringing back the ashes to bury them locally.  The Secretary of State’s officer also allayed my concerns about the claim not being out of time.  The appeal therefore succeeds to that extent, and I set the tribunal’s decision aside and substitute my own.   	

7.	The question that then arises is how far the claimant may recover the costs incurred as detailed in paragraph 3 above.  Regulation 7A(2)(a)-(f) specifies certain costs which can always be recovered.  Paragraph (2)(g) permits recovery of “any other funeral expenses” with a financial cap.  The Secretary of State’s officer submits that the claimant’s expenses might come within paragraph (2)(g) so long as they can be treated as “funeral expenses” directly related to the cremation.

8.	There is no definition of “funeral expenses”; a “funeral” is defined in regulation 3(1) as “a burial or a cremation”.  Regulation 7A(2)(b) requires a funeral payment to meet cremation fees levied by the crematorium authorities, the cost of medical references and any necessary registered medical practitioner’s certificate, and the cost of removing any implantable medical device.  Documentation relating to obtaining money out of the deceased’s estate, and certain transport costs for the body and the responsible person are also specifically covered.  Provision is made for burial expenses (the necessary costs of purchasing a new burial plot together with an exclusive right of burial in it, and necessary burial fees), but only where that, as opposed to cremation, is the mode of disposing of the body.  Although with cremation it is customary but not obligatory to dispose of the ashes, and in many cases this is by burying them, I do not see that the regulations, which expressly exclude burial costs where there is a cremation, can permit the payment of, in this case, the Church in Wales fee.  	
9.	I wondered whether the transport of the ashes from Reading could be brought within subparagraph (2)(d): “where the deceased died...away from home and it is necessary to transport the deceased within the United Kingdom in excess of 50 miles...to the place of rest, the reasonable cost of transport in excess of 50 miles”.  Earlier formulations referred to “the body” rather than “the deceased” and therefore clearly would not have covered ashes.  The wording changed in 1995, but no explanation was given.  I am influenced by the earlier version, and moreover although I understand the importance attached by the claimant to bringing the ashes back, I cannot accept that it was “necessary” to do so.  Further, it is likely that what this provision was intended to cover was bringing “home” to his normal place of residence someone who happened to die away from it (R(IS)11/91).  The deceased here did originally come from Wales, but had not lived there for a long time and could not be said to have had his “home” there when he died.

10.	However, I think it not unreasonable in the particular circumstances of this case to allow the £12.45 cost of transporting the ashes as another funeral expense linked to the cremation.  The ashes would have been buried in Reading anyway.   

11.	In some earlier versions of the funeral payments regulations, specific provision was made for the cost of flowers.  This was later wrapped up, along with funeral director’s fees and some other items, in the “any other funeral expenses” provision.  But because of the legislative history I do feel able to allow the £14 cost of flowers.  
	
12.	Obituary notices in the press, on the other hand, have not been covered in earlier versions of these regulations, whether expressly or as part of “necessary documentation”: R(SB)46/84. I see no reason for accepting them now.  Funeral payment awards are based on concepts such as what is “essential” for a proper funeral.  People may consider obituary notices desirable, but they are not intimately concerned with the cremation (or burial), and are not essential. 			
13.	This leaves the cost of the memorial stone and flower container.  These items have not historically formed part of claimable funeral expenses, not least  because they are usually not incurred until some time after the funeral, when a grave has settled, by which time it is too late to make a claim.  Under non-social security law, the cost of a tombstone, like the cost of mourning clothes, was not deductible from the deceased’s estate as part of the funeral expenses when calculating estate duty.  Other cases where people were being sued for causing someone’s death drew a distinction between a headstone “finishing off, describing and marking the grave”, which was capable of being found a funeral expense, and a “memorial” which was not: Goldstein v Salvation Army Assurance [1917] 2 KB 291, Gammell v Wilson [1980] 2 All ER 557.  The monumental sculptor’s account here refers to a “memorial”, probably because there is no grave as such, though the stone will describe and mark the resting-place.  I have very carefully considered whether I should rule this cost allowable; but I have concluded, with some regret, that when these regulations refer to “any other funeral expenses”, they mean expenses of the type which might under earlier versions have been permitted (like flowers), rather than an item which was never in contemplation.    	

14.	The claimant will be disappointed that despite allowing her appeal on entitlement, and despite well understanding her motivation, I have been able to give her only some of the more minor costs.   But this is an unusual case, because the actual costs of the cremation were paid by the hospital and no funeral director needed to be used by the claimant.  In the usual funeral payments case, some at least of the funeral director’s disbursements such as a coffin or container, or extra vehicles, which are not provided for under regulation 7A(2)(a)-(f), will not be recoverable at all, given that the funeral director’s fees for his services have also to be covered under regulation 7A(2)(g) and there is a cap of £700 (or £100 where other costs have been covered under a pre-paid funeral plan or any analogous arrangement).  So the full cost of a funeral as people like it to be will not be covered under the regulations either, and a debt will remain outstanding.  

							(signed on original)		Christine Fellner
												Commissioner

												19 August 2004