[2005] UKSSCSC CIS_4531_2004 (28 February 2005)

CIS/4531/2004

1. Leave to appeal having been granted by a chairman of the tribunal, this appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Rochdale tribunal made on 19th October 2004 under reference U/06/935/2004/00786. I substitute my own decision. This is to the effect that in respect of the funeral expenses incurred after the death of his late father on 20th April 2004 the claimant is entitled to a payment from the social fund. I remit for agreement between the parties matters concerning calculation and payment consequent upon my decision. In the event of failure to agree, either party is at liberty to restore the matter before me for resolution.

2. The parties are agreed that the decision of the tribunal was made in error of law and that I should substitute my own decision. However, there is a point of law which merits a reasoned decision. 

3. The claimant was born on 13th November 1974. At the relevant time he was living with his cousin (“KB”). He was not dependant on her but paid no rent. Nobody else was living with them. The claimant was not in receipt of a qualifying benefit for the purposes of a payment from the social fund to meet funeral expenses, although at one stage he indicated that he was in receipt of income based JSA, whereas he was in fact in receipt of contribution based JSA (which is not a qualifying benefit). The claimant’s father had been seriously ill for two years and had had both legs amputated. The claimant had spent a great deal of time visiting and caring for him. On 20th April 2004 his father sadly died at the age of 70. The funeral took place on 28th April 2004. The arrangements were made by the claimant, and there were no other children or surviving parents of his late father. It has always been agreed that the conditions of entitlement to a payment from the social fund to meet funeral expenses were satisfied, except for the matter with which I deal below.

4. On 10th May 2004 the claimant applied for a payment from the social fund to meet the funeral expenses. On 21st May 2004 the Secretary of State refused to make an award and on 21st June 2004 the claimant appealed to the tribunal against this decision. On 19th October 2004 the tribunal confirmed the decision. On 16th December 2004 a chairman of the tribunal granted the claimant’s application for leave to appeal to the Commissioner against the decision of the tribunal. 

5. The relevant legislation and regulations are referred to in the submissions from the Secretary of State to the tribunal and to the Commissioner. The main provisions are to be found in the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 as amended. It is not necessary to go through the whole of the regulations. The only matters of dispute are governed by regulation 7(1)(a). 

6. So far as is relevant, regulation 7(1) provides:

7(1) … a social fund payment … to meet funeral expenses shall be made only where –

(a)	the claimant … has an award of  [a qualifying benefit]; or

(b)	is a person to whom (by virtue of subsection 7 of section 131 of [the Social Security Contributions and Benefits Act 1992]) subsection 6 of that section applies where, on a claim for council tax benefit, the conditions of entitlement specified in section 131(3) and (6) for an award of an alternative maximum council tax benefit are fulfilled.

“Alternative maximum council tax benefit” is also often referred to as “second adult rebate”.

7. Section 131(1) of the 1992 Act provides for entitlement to council tax benefit if, amongst other conditions and apart from other grounds of entitlement, the conditions set out in section 131(3) and 131(7) are satisfied. The relevant provisions are as follows:

131(1) A person is entitled to council tax benefit … if the following are fulfilled, namely the condition set out in subsection (3) below and either -
(a)	…; or
(b)	the condition set out in sub-section (6) below

131(3) The main condition for the purpose of subsection (1) above is that the person concerned – 
(a)	is for the day liable to pay council tax in respect of a dwelling of which he is a resident; and
(b)	is not a prescribed person or a person of a prescribed class

131(6) The condition for the purpose of subsection (1)(b) above is that – 
(a)	no other resident of the dwelling is liable to pay rent to the person concerned in respect of the dwelling; and
(b)	there is an alternative maximum council tax benefit in the case of that person which is derived from the income or aggregate incomes of one or more residents to whom this sub-section applies

131(7) Subsection 6 above applies to any other resident of the dwelling who – 
(a)	is not a person who, in accordance with schedule 1 to the Local Government Finance Act 1992, falls to be disregarded for the purposes of discount; and
(b)	is not a prescribed person or a person of a prescribed class

8. It must be understood that for the purposes of the above provisions, KB was the person liable for council tax and entitled to council tax benefit, and the claimant was the other (in fact the only other) resident of the dwelling. Neither the claimant nor KB was a prescribed person or a person of a prescribed class (certain students and persons from abroad) and it has not been suggested that the claimant was a person who, in accordance with schedule 1 to the Local Government Finance Act 1992, fell to be disregarded for the purposes of discount.

9. The relevant local authority has certified that as at 10th May 2004 KB was in receipt of council tax benefit with the claimant as her “non-dependant”, that her second adult rebate entitlement would have been £2.45 per week, but that this was not in fact in operation because the KB had entitlement to council tax benefit under the main provisions which was of a greater amount than the second adult rebate entitlement (see page 27 of the bundle of papers before me). I use the phrase “in operation” to refer to the two possibilities – a cash payment to the (council tax) claimant, or a reduction in liability for council tax.

10. The key provision in the appeal before me is regulation 7(1)(b) of the 1987 regulations. This applies where, on a claim for council tax benefit, the conditions of entitlement specified in section 131(3) and (6) for an award of an alternative maximum council tax benefit are fulfilled. On the face of it, as I have explained above, all the conditions of entitlement for an award of an alternative maximum council tax benefit were fulfilled, but it was not in fact in operation.

11. The tribunal confirmed the decision of the Secretary of State on the basis that “the second adult rebate must have been awarded rather than underlying entitlement established” and that “It was not in dispute that that the second adult rebate had not at any time been awarded”. The tribunal referred, without acknowledging the source, and as though it were part of the regulation, to a note in Volume II of Social Security Legislation 2004 by Wood et al. Citing the Social Fund Maternity and Funeral Payments Guide, this note refers to “a person in respect of whom the second adult rebate has been awarded” (my emphasis; see page 1286 at para 5.53). With all due respect to the learned editors (and to the compilers of the Guide), that formulation is misleading and in the present case helped lead the tribunal into error.

12. Regulation 7(1)(a) of the Social Fund Maternity and Funeral Expenses Regulations 1987 refers to a qualifying benefit having been awarded, but regulation 7(1)(b) refers to the conditions of entitlement being fulfilled. The second adult rebate or alternative maximum council tax benefit does not actually have to be in operation.  It would also be an error to think that a separate claim for housing benefit would have to be made (as the tribunal possibly did and as the note possible implies): this would be entirely inappropriate because it is not the claimant for the funeral payment who is in receipt of council tax benefit. It somebody else who is claiming council tax benefit, but it is the claimant for the funeral payment in respect of whom the conditions of entitlement have to be fulfilled. 

H. Levenson
Commissioner

28th February 2005