[2008] UKSSCSC CIS_3534_2007 (22 February 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the Exeter appeal tribunal under reference 194/06/00212, held on 8 June 2007, is erroneous in point of law for the reasons given below.  I therefore set its decision aside and refer the case for rehearing before a differently constituted tribunal in accordance with my directions given below.  

2.	The case concerns a claim for a Social Fund Payment in respect of the funeral expenses of the claimant's deceased sister, who was a lady without a partner or child and whose parents were deceased.  The claimant completed a claim form indicating that there were other close relatives of the deceased, but only named one of them.  Enquiries were made by the DWP and eventually it was established that the claimant had five surviving siblings, two brothers, one of whom, (“ST”), was not in receipt of a qualifying benefit, and three sisters.  On 15 May 2006 the decision was made to reject the claim.  The reason for this was that there is another close relative not in receipt of a qualifying benefit who was not estranged from the deceased.  The claimant appealed to the tribunal which upheld the decision, after a hearing on the papers at the request of the claimant.  The claimant appeals the tribunal’s decision with the leave of a District Chairman of the Tribunals Service.  The Secretary of State does not support the appeal.
  
3.	Regulation 7(2) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 (“the Regulations”) specifies six conditions of entitlement, all of which must be satisfied:

(1) the claimant (or partner) must have an award of a qualifying benefit or …, paragraphs (3) and (4).
(2) the deceased must have been ordinarily resident in the UK (paragraph (5).
(3) the claim must have been made within the time-limit (paragraph (6).
(4) the claimant (or partner) must be a “responsible person” (paragraph (7).
(5) the responsible person must be sufficiently closely connected to the deceased (paragraph 8).
(6) the funeral must take place in the UK or … (paragraphs (9) and (10).

4.	It is conceded by the Secretary of State that the claimant satisfies conditions (1) to (4) and (6).  I do not intend to investigate these matters.  The Secretary of State contends that the claimant does not satisfy condition (5).  

Regulation 7 of the Regulations provides,

“(1)(b) “responsible person” means the person who accepts responsibility for the funeral expenses.

(8) The fifth condition is that – 
(a) …
(b) …
(c) …
(d) in a case where the deceased had no partner …, the responsible person was an immediate family member of the deceased and it is reasonable for the responsible person to accept responsibility for those expenses; or
(e) in a case where the deceased had no partner and …,  the responsible person was either –
	(i) a close relative of the deceased, or
	(ii) a close friend of the deceased,
and it is reasonable for the responsible person to accept responsibility for the funeral expenses.”        

Regulation 8 of the Regulations provides,

“(1) …, the claimant shall not be entitled to a funeral payment where the responsible person 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;
(b) one or more of those immediate family members or their partners are not persons to whom regulation 7(4) applied as at the date of death; and
(c) any of the immediate family members referred to in sub-paragraph (b) was not estranged from the deceased at the date of his death.

(5) Whether it is reasonable for the responsible person to accept responsibility for meeting the expenses of a funeral shall be determined by the nature and extent of his contact with the deceased.

(6) Paragraph (7) applies … in a case where the deceased had one or more close relatives.

(7) If, on comparing the nature and extent of any close relative’s contact with the deceased and the nature and extent of the responsible person’s contact with the deceased, any such close relative was-
	(a) in closer contact with the deceased than the responsible person,
(b) in equally close contact with the deceased and neither that close relative nor his partner, if he has one, is a person to whom regulation 7(4) applies,
	the claimant shall not be entitled to a funeral payment.

5.	By definition, there are two classes of persons who have some relationship to a deceased but who, by virtue of the class, will have a different route to qualification for a funeral payment.  The first class is “immediate family member”, the second class is “close relative”.  Regulation 3(1) of the Regulations defines “immediate family member” as a parent, son or daughter.  It defines “close relative” as a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-son-in-law, step-daughter, step-daughter-in-law, brother, brother-in-law, sister or sister-in-law.  The second class includes the members of the first.  It seems to me that the proper construction of regulation 8 is that, in the circumstances of a claim by a responsible person, who otherwise meets all the conditions for entitlement, and who is an “immediate family member”, the test for entitlement is whether there was “estrangement” from the deceased by one or more immediate family members who were not in receipt of a qualifying benefit.  This test seems to be “all or nothing” – was the immediate family member estranged from the deceased, or not?  Whereas, in the circumstances of a claim by a responsible person, who otherwise meets all the conditions for entitlement, who is a “close relative” (but excluding parent, son or daughter) the test for entitlement is the nature and extent of “contact” with the deceased, as between the claimant and such other close relatives, as there may be.  This test seems to be one of measurement of quality and degree although I imagine the exercise of it must be largely esoteric.  However the tests are quite distinct from one another. 

6.	  In its reasons for its decision the tribunal said this,

“The tribunal noted and accepted the argument of the decision maker that there was another close relative, ST, (the claimant and deceased's brother), who was not in receipt of a qualifying benefit and there had been some lengthy attempts to determine whether he was estranged from his sister.  No reply had been received.  The appellant had not, on the balance of probabilities, shown that the close relative was estranged.

The tribunal concluded that the appellant had not shown that his brother, who was not in receipt of a qualifying benefit, was estranged from their sister.  It was accepted that neither brother had particularly close links with their sister; however the legislation required the decision maker to raise the question, and whilst it was accepted that the regulations concerning family contact are problematic if applied to families who have little or no contact with each other of any description, the tribunal considered that the proper application of the law was such that it required the appellant to show that his brother was estranged from (as opposed to out of close contact with) the deceased.  He had not done so and for these reasons the appeal failed”.

7.	The claimant and his siblings are “close relatives” of their deceased sister, who had no “immediate family members” or partner.  In its deliberations the tribunal considered the issue of whether ST was estranged from the deceased.  This was the wrong test.  As the deceased had no immediate family members or partner, what the tribunal should have done was to have carried out the exercise of comparing the nature and extent of any close relative’s contact with the deceased, with the nature and extent of the claimant’s contact with her, as required under regulation 8(7) of the Regulations.  The comparison should be that of the contact of each of the claimant’s siblings, with that of the claimant.  

8.	I find that the tribunal has misdirected itself as to the law and thereby its decision is erroneous.  For this reason I must set the decision aside. I am not in a position, on the papers before me, to decide the merits of the claimant’s appeal because further findings of fact have to be made.  This is because, inter alia, it is unclear from the papers whether the claimant had no contact at all with his sister, (see pp.34, 54 and 55) or some infrequent contact with her, (see p.103).  Accordingly I have no option but to remit this appeal for rehearing by a completely different tribunal under Social Security Act 1998, section 14(8)(b).  

9.	I direct that there shall be an oral hearing of this appeal.  I would urge the claimant to attend the hearing as I believe that it would be in his best interests to do so.  He may wish to be accompanied by his wife or some other relative.  I hope that his representative will attend.   However, the final decision must be that of the claimant.  I remind the new tribunal that in its consideration of all the evidence it will need to make explicit findings of fact, particularly on the amount of contact that the claimant had with the deceased, and the amount that his siblings had and to make a comparison in the terms of regulation 8(5) and (7) of the Regulations.  I also direct the Secretary of State to establish, beyond doubt, whether ST, or his partner, if he has one, is in receipt of a qualifying benefit under regulation 7(4) of the Regulations.  A District Chairman of the Tribunals Service may issue further directions for the better and more efficient disposition of this appeal.

10.	The claimant should be aware that this appeal has been allowed because the tribunal failed to meet the standard required of it in stating its findings of fact and the reasons for its decision.  He should not draw any conclusions as to the likely outcome of the next hearing.  That is a matter which will now be considered wholly afresh by the new tribunal.  

                                                              (Signed on original)            P J Thomas
									Deputy Commissioner

							                         22 February 2008