CIS/2147/2007

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Hearing and Decision 

1. On 3rd November 2008 this matter was transferred to the Upper Tribunal.

2. This appeal by the claimant does not succeed. I confirm the decision of the appeal tribunal made on 26th March 2007 under reference 068/07/00045. This is that, in respect of the funeral expenses incurred after the death of the deceased, the claimant is not entitled to a payment from the social fund. 

3. I held an oral hearing of this appeal on 14th May 2009. The claimant, who is a solicitor, attended in person and was represented by Desmond Rutledge of counsel. The Secretary of State was represented by Ms D Rhee of counsel, instructed by the Solicitor to the Department for Work and Pensions. I am grateful to all of them for their assistance. 

4. I am aware of the delay in producing this decision but it is right to point out that following that hearing further written submissions were not received until 24th September 2009 and that some of those submissions went administratively astray and were only seen by me on 5th February 2010. Meanwhile, on 27th January 2010 Upper Tribunal Judge Williams had decided SoSWP v FS [2010] UKUT 18 (AAC) concerning discrimination in relation to the denial of funeral expenses to a convicted prisoner. Then on 10th February 2010 the Court of Appeal decided the case of Ghai and Others v Newcastle City Council [2010] EWCA Civ 59 allowing an appeal from the decision by Mr Justice Cranston in the Administrative Court at [2009] EWCH 978 (Admin), to which the parties had referred in the hearing. On 12th February 2010 I invited further submissions on matters arising from these decisions. This resulted in a further 90 pages being added to the file, which now numbers 405 pages. Final submissions were received on 27th April 2010 and the file was returned to me on 14th May 2010.

Background and Procedure

5. In the case of a funeral expenses payment from the social fund (to which I refer below as “the statutory scheme”), a claim is not made until after the death of the deceased and is not made on behalf of the deceased or by or on behalf of his or her estate (indeed, the estate itself is not a legal person or party: R(IS) 6/01, followed by me in CIS/3735/2006) but by the person who has accepted responsibility for payment of the funeral expenses. This person might or might not also be a personal representative, or responsible for administering the assets of the estate, but the claim is not made in that capacity. The claim is made in the capacity of a person who has accepted responsibility for the payment. If there is no such person, there is no provision for any claim to be made. Thus, although the application to the Social Security Commissioner was initially registered in the name of the deceased, when granting leave to appeal on 16th July 2007 (as a Social Security Commissioner), I directed that the file be amended to show the claimant as the proper appellant.

6. Mr Rutledge has suggested that when the claimant appealed to the Commissioner it was in the role of a personal representative, but this cannot be correct. It was in his personal capacity that he had made the claim in respect of which the tribunal decision had been taken, and it was in this capacity and as the losing party that he sought leave to appeal to the Commissioner, not as a personal representative.

7. The deceased was born on 15th February 1935. He was married for about 10 years but divorced many years ago and had only occasional contact with an adult daughter of his ex-wife. He was Jewish and until about 1980 he was a member of an orthodox synagogue serving a Jewish community in an urban area of England but outside London. His parents had both been members of the same synagogue and on their deaths (his father in 1957 and his mother in 1981) they had each been buried in the cemetery maintained for members of that synagogue. Burials and associated activities are conducted on behalf of the members of the synagogue by its Burial Society. I shall refer collectively to the officials of the synagogue and its Burial Society as “the synagogue authorities”. I give more detail below about such arrangements.

8. The deceased also had two brothers, from whom he was estranged. One of them lives or lived in Germany, and although the other was in England he refused to have anything to do with the expense of the funeral.

9. As a child the claimant had lived next door to the home of the deceased and his widowed mother but in the 20 years prior to 2005 the claimant had only seen the deceased once or twice, and that by chance while shopping.

10. By 2005 the claimant was a qualified and experienced solicitor (admitted 1986) in a well established practice, with much experience of probate and related work. He was also a member of the synagogue to which I have referred above. By then the deceased was terminally ill and he consulted the claimant in the latter’s professional capacity, resulting in the drawing up and execution of a will, naming the claimant and the daughter of the deceased’s ex-wife as executors. At that time the deceased lived some distance away from the synagogue, although it was probably one of the nearest (orthodox) synagogues to where he lived. In accordance with the deceased’s instructions the claimant contacted the synagogue authorities with a view to arranging for his burial to take place at the cemetery used for members. Meanwhile the deceased died on 22nd December 2005, age 70. The claimant told the synagogue authorities that he did not yet know whether the estate had sufficient assets to pay for a funeral. It was agreed that the deceased would be buried in their cemetery according to orthodox Jewish practice, and this took place on the morning of Friday 23rd December 2005. This all had to be arranged very quickly (for reasons which are further explained below), especially in view of the fact that the burial could not take place on the Sabbath (which began at dusk on the Friday night) and on this particular Friday, the hours of daylight would have been fewer than on any other Friday of the year.

11. The charges for the funeral were £3165 and on 20th January 2006 the synagogue authorities sent the claimant a bill for this amount. As it turned out the estate was insolvent, with assets of just under £1600, and non-funeral liabilities of over £500.

12. On 9th November 2006 the claimant made a claim for a payment of funeral expenses from the social fund. On 10th November 2006 the Secretary of State refused to make any such payment and on 11th December 2006 the claimant appealed to the tribunal against that decision of the Secretary of State. The tribunal considered the matter on 26th March 2007 and confirmed the decision of the Secretary of State. On 8th May 2007 the chairman of the tribunal refused the claimant leave to appeal to the Social Security Commissioner against the decision of the tribunal, but he now appeals by my leave granted (as a Commissioner) on 16th July 2007. The Secretary of State opposes the appeal and supports the decision of the tribunal.

13. On 24th February 2010 probate was granted, naming the claimant as the executor of the deceased’s estate and certifying the net value of the estate as nil.

The Expert Evidence

14. I held an earlier hearing of this appeal on 30th April 2008 at which I agreed to hear expert evidence, which I summarise below. I declared to the parties my own relevant personal background in relation to the matters to be covered by the evidence (although I did not know either of the witnesses) and neither of them objected to my dealing with this appeal. Ms Rhee did not challenge the expertise of the witnesses or the accuracy of the evidence, which accords with my own understanding, knowledge and experience and which I accept. I sent the following summary to the parties shortly after that hearing and they have not challenged its accuracy. The context of the evidence is that the synagogue to which I have referred above is that of an orthodox Jewish community recognising the religious authority and jurisdiction of the Chief Rabbi of the United Hebrew Congregations of the Commonwealth (whose religious authority and jurisdiction is recognised by the majority of Jews in Britain who recognise a religious authority, although not by all Jews who recognise a religious authority or by the whole Jewish community).

The Evidence of Rabbi Daniel Golumb

15. Rabbi Golumb gave evidence of Jewish law. He stated that he is the son of a London Rabbi (now deceased) and that he himself attended rabbinical colleges in Manchester and Montreal from the age of 16 for Talmudic studies, commencing studies with a view to ordination as a Rabbi from about the age of 20. He was ordained in Manchester in 1996. His ordination was recognised by the Chief Rabbi and he had the Chief Rabbi’s licence and certificate to perform the full range of rabbinical duties, including those dealing with marriage and death. He has extensive experience of rabbinical work relating to bereavement, death and burial, including liaison with the civil authorities such as coroners and local authorities, including in Liverpool from 1999 to 2006. He would describe himself personally as ultra-orthodox but his rabbinical functions have been exercised under the authority of the Chief Rabbi within mainstream orthodoxy. 

16. He stated that in Jewish law the obligation to initiate the arrangements for a funeral falls on the family of the deceased, or if there is no family, on the Burial Society (usually of the congregation to which the deceased belonged). However, the procedures and preparation for the funeral come within the functions of the Burial Society under rabbinical direction. Jewish funeral procedures and obligations follow a set pattern in every case. There is no scope for input from the family over this or for choices to be made. There are very strict guidelines which include procedures for ritual washing and dressing (which are undertaken by the Burial Society) as prescribed by Talmudic law, the nature of the coffin, the order of the service and so on. 

17. There must at the very least be an exclusive section of a burial ground set aside for Jews and there are services of consecration of the ground.

18. The requirement for a prompt burial derives from the prescription in Deuteronomy chapter 21, verse 23 (“… you shall bury him that same day …”) but the bible contains only a simplified or distilled version of the law and the true meaning has been developed by rabbinical discussion which has been codified. A body is not to be left unburied overnight. To leave it unburied is a desecration and is disrespectful. This is subject to limited exceptions. There may be delay (usually limited to 24 hours) if this is in the interests of honouring the deceased, for example to allow the son of the deceased to say the mourner’s kaddish or to obtain evidence to seek to persuade the civil authorities that there is no need for a post mortem examination, or if delay is required by the law of the State. In practice, overnight delay might be caused by the need to rely on services provided by people who are not Jewish, perhaps gravediggers or drivers.

19. The Burial Society is regarded as carrying out its functions as a communal act on behalf of the whole community rather than on behalf of the family, although the heirs or family can be compelled by Jewish law to pay for a monumental stone. It is not possible at a burial to distinguish the status of the deceased (except possibly by the number of mourners), although the positioning of the grave might be affected by the fact that the deceased was of priestly descent because there are restrictions relating to the nature of visiting the grave by the family of such a person.

20. Jewish law requires that there be a stone (even if the deceased has instructed otherwise), which both marks the grave and is a security for the honour of the deceased. The placing of the stone can be arranged within 7 days or within a month but it is the usual practice in this country to allow the earth to settle first. In any event the stone must be placed within one year. Jewish law also provides that no excessive praise is inscribed, that the stone be of average value and that there be no excessive expenditure. Only a limited range of inscriptions on the stone is allowed and, for example, any reference to the family is in the third person (“mourned by his wife” rather than “I mourn my husband”).

21. Marriage, divorce, burial and circumcision are all in the hands of the rabbinate acting on behalf of the community. Arrangements for them are not obligations which are placed personally on the individuals concerned. This is different, for example from the requirement for parents to teach their children the ways of the bible and of study, which is a parental obligation which may be delegated to a teacher or a school but which is undertaken on behalf of the parents.

22. A Beth Din [a Jewish court – “house of judgment”] can compel relatives to meet funeral costs but if this is not possible it is the responsibility of the community as a whole. However, the funeral cannot be delayed in order to sort out the funding or to raise money.

The Evidence of Mr Melvin Hartog

23. Mr Hartog gave evidence about demographic matters and the practices of the United Synagogue. The United Synagogue is the largest synagogue organisation in the United Kingdom with constituent synagogues and communities in and around the Greater London area, and represents mainstream orthodoxy in the United Kingdom. Mr Hartog is the Head of Burials for the organisation, which is a salaried appointment that he has held since January 2001. He has a commercial and business background. 

24. He stated that the United Synagogue employs 75 staff dealing with all aspects of burials, including four staff resident at burial grounds, and is responsible for 11 burial grounds in and around London. Seven of these are disused in the sense that they are not available for new burials, but they are open for visits to graves. The main grounds still in use are at Bushey and Waltham Abbey. There are about 40,000 individual members of the US Burial Society, who are also members of its constituent synagogues. Each member pays an annual premium, currently £57. This finances the operations of the Burial Society and there is no charge levied at the time of burial of members. The Burial Society annual budget is about £4 million. It undertakes about 1000 burials annually of its own members. It also buries non-members who are deemed to be halachically Jewish (that is, according to Jewish law). For this there is a charge of £6000 at Waltham Abbey or £8100 at Bushey. These sums include payments representing that premium that would have been paid had the deceased been a member. In each case this is a comprehensive figure and there is no itemised bill. 25. Each year there are burials of non-members where there is nobody who is able to pay the charge – in recent years this has varied between 40 and 90 burials annually.
The deaths of Jewish people who are not members of the United Synagogue (or any other) Burial Society are usually notified by other Jewish organisations or sometimes by family members or friends or neighbours. Generally speaking the United Synagogue will take responsibility for those in the London area and where possible will refer on to a local community cases that arise outside the London area.

26. Mr Hartog clarified that his evidence did not relate to arrangements made by other synagogues, communities or Burial Societies outside the United Synagogue, but the United Synagogue Burial Society is the largest in the country and possibly in Europe.

27. [I observe that the deceased was not a member of the United Synagogue Burial Society and that the synagogue and Burial Society that arranged his burial, although recognising the religious authority and jurisdiction of the Chief Rabbi, is not part of the United Synagogue.]

28. At a relatively early stage in these proceedings I had raised with the parties the question of whether the Jewish community was under any general legal obligation to secure the burial of deceased Jewish people, but enquiries revealed that neither the Secretary of State nor the office of the Chief Rabbi, nor the Board of Deputies of British Jews (which represents virtually the whole spectrum of Jewish religious and communal life) is aware of any such obligation.

The Legal Arguments

29. I set out below the relevant domestic legal provisions, followed by the human rights provisions. Then I deal with the arguments under domestic law, followed by what I refer to as the “1984 duty” (because it was enacted most recently in section 46 of the Public Health (Control of Disease) Act 1984). Then I deal with my conclusions in relation to the domestic law arguments and then with the arguments under human rights law. I use the term “domestic law” to refer to the law other than human rights law, although of course human rights law and the Human Rights Act 1998 are also part of domestic law.

Domestic Legal Provisions 

30. Section 138(1) of the Social Security Contributions and Benefits Act 1992, so far as is relevant, provides:

138(1) There may be made out of the social fund, in accordance with this Part of this Act-

(a)	payments of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, … funeral expenses …

31. Section 175 of the Act provides very wide powers to make regulations, including regulations prescribing the circumstances to be covered by the provisions of section 138(1).

32. The main provisions are to be found in the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 as amended. It is not necessary to go through the whole of the regulations. It is sufficient to refer to the following provisions:

7(1) In these regulations – 
(a)	“funeral payment” means a social fund payment to meet funeral expenses of a deceased person;
(b)	“responsible person” means the person who accepts responsibility for the funeral expenses.

(2) Subject to regulation 8, a funeral payment shall be made where each of the conditions referred to in paragraphs (3) to (9) is satisfied.

(3) The first condition is that in respect of the date of claim for a funeral payment, the responsible person or his partner is a person to whom paragraph (4) applies.

(4) This paragraph applies to a person- [who has an award of at least one of a number of listed means tested benefits or allowances].

(5) The second condition is that the deceased was ordinarily resident in the United Kingdom at the date of his death.
(6) The third condition is that the claim is made within the prescribed time for claiming a funeral payment.

(7) The fourth condition is that the claimant is the responsible person or the partner of the responsible person.

(8) The fifth condition is that –
(a) the responsible person was the partner of the deceased at the date of death; or

…

(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 (d) does not apply], 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.

8(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.

…

(3) Paragraphs (4) to (8) apply for the purposes of regulation 7(8) (d) and (e).

…

(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.

33. By virtue of regulation 19(1) of and paragraph 9 of Schedule 4 to The Social Security (Claims and Payments) Regulations 1999 the claim must be made within three months of the relevant funeral. There is no provision for making a late claim and no power to extend this period. I recall at this point that the funeral was on 23rd December 2005 and the claim was made on 9th November 2006, well outside the three month limit.

Human Rights Act 1998

34. Amongst other matters, the Human Rights Act1998 provides for direct application of the European Convention on Human Rights (“the Convention”) in UK domestic law. The judicial authority established under the Convention is the European Court of Human Rights.

35. The main relevant provisions of the Human Rights Act 1998 are as follows:

3(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights. 

6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

6(2) Subsection (1) does not apply to an act [of a public authority] if-
(a)	as a result of one or more provisions of primary legislation the authority could not have acted differently; or
(b)	in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions. 
6(3) In this section "public authority" includes –
(a)	a court or tribunal

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
	(a) …
(b)	rely on the Convention right or rights concerned in any legal proceedings

The Relevant Convention Provisions

36. For the purposes of the present appeal, the main relevant provisions of the Convention are as follows:

Article 8:
 
8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others.  

Article 9:

9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
	
9.2. Freedom to manifest one’s belief or religion shall be subject to such only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of rights or freedoms of others
	
Article 14:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Article 1 of Protocol 1:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Article 14 and the Convention Rights

37. Article 14 is not a free-standing anti-discrimination provision. It only comes into play to secure “enjoyment of the rights and freedoms set forth in this Convention”. However, a breach of Article 14 does not only arise where there has been a breach of another article. Article 14 also applies to secure, without discrimination, the way in which the various rights are secured, and all that has to be shown is that there has been unlawful discrimination in connection with a right which comes within the ambit of one of the relevant articles (see eg Petrovic –v- Austria Case No 56/1996/775/976).
Article 1 of Protocol 1

38. In RJM the House of Lords considered the rule that the disability premium, which has the effect of increasing the amount of income support to which a disabled person is entitled, is only available to a person who has accommodation and is therefore not available to a homeless person. 

39. The House of Lords decided (paragraph 31) that “it would require the most exceptional circumstances” before any national court should refuse to apply the decision of the European Court of Human Rights in Stec v United Kingdom (2005) 41 EHRR SE295 to the effect that welfare benefits come within the ambit of article 1 of protocol 1, whether or not they are contributory benefits. Although this does not guarantee the right to acquire property:

“In cases … concerning a complaint under article 14 in conjunction with article 1 of protocol 1 that the applicant had been denied all or part of a particular benefit on a discriminatory ground covered by article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right enforceable under domestic law to receive the benefit in question … Although [article 1 of protocol 1] does not include the right to receive a social security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with article 14.”

(Paragraph 54 of Stec cited by Lord Neuberger in paragraph 30 of RJM).

40. I assume that the Secretary of State accepts that funeral expenses scheme is within the ambit of article 1 protocol 1.

The Claimant’s Case – Generally and Under Domestic Law

41. The tribunal found that the claimant was the responsible person and that, in view of the personal circumstances of the deceased and his estrangement from his family, it was reasonable for the claimant to accept responsibility for the funeral expenses. I proceed on this basis. However, as I indicated above, the claimant is and was a practising solicitor and was not entitled to or in receipt of one of the benefits or allowances listed in regulation 7(4). It is common ground between the parties that, on the facts of the present case, subject to arguments about irrationality and human rights law, the claimant cannot be entitled to the payment as the domestic legislation and regulations stand. 

42. The basis of the claimant’s case is that the need for a decent funeral is a basic requirement of human dignity and that the right to a decent burial in accordance with the deceased’s religious wishes compels the state to provide funeral payments where the deceased is impecunious at the time of death and without family members or anyone willing to assume responsibility for the costs, such that there is a real risk that the deceased will not be buried in accordance with their religious beliefs, especially where (as in the present case) the form of burial is of fundamental importance in their faith. In the present case, speed was essential, and the lack of a tombstone was and is offensive. In the circumstances, a funeral other than an orthodox Jewish funeral would not amount to a decent funeral.

43. The claimant argues that the statutory enabling provisions, to which I have referred above, are wide enough to permit the making of regulations that would cover the circumstances of the present case. The scheme that has been made is irrational because it has not envisioned the circumstances of the present case and has not provided for a personal representative to be eligible for a payment in the case of an insolvent estate or allowed for an appropriate exemption from the qualifying benefit requirement.

The Secretary of State’s General Argument 

44. The Secretary of State’s general argument is that the scheme for funeral payments from the social fund is not about the provision of a funeral, still less about the provision of a funeral in accordance with the claimant’s wishes. Indeed, regulation 9(7) excludes from the payment the cost of certain listed items and services “which relates to a requirement of the deceased’s religious faith”. (This latter is a poor point, because non-listed expenses relating to a religious requirement can be met under the general provision of regulation 9(g).) The scheme is about assisting financially those who find themselves responsible for the costs of the funeral of another but whose means are so limited that they are eligible for certain means-tested benefits. It does not cover cases where a deceased does not have a family member or friend who has assumed the responsibility of meeting the funeral expenses, or where a person who has assumed that responsibility does not fall within the class of individuals who can claim.

45. In this context, it is argued, the provisions in the regulations cannot be said to be ultra vires the regulation making powers in the legislations, or to be irrational. Several Commissioners’ decisions have pointed out that the regulation making powers are very wide (eg CIS/3150/1999 and CIS/4769/2001) and there is no ambiguity in the meaning of the regulations in relation to the means-tested benefit qualification.

The “1984 Duty”

47. This issue is relevant to both the domestic law argument and the human rights argument.

48. The claimant prepared a background note on the law relating to dead bodies (pages 123 to 129 of the original file). He argues, reasonably enough, that there is a common law right to a decent burial (R v Stewart (1840) 12 A & E 773; Owens v Liverpool Corporation [1938] 4 All ER 727; R v Hunter [1973] 3 All ER 286). I merely observe that the First-tier Tribunal and the Upper Tribunal are creatures of statute and do not have a general jurisdiction to enforce common law duties. Although the Upper Tribunal does have a judicial review jurisdiction in certain types of case, that does not arise in the present appeal.

49. Section 46 of the Public Health (Control of Disease) Act 1984 places a duty on a local authority to bury or cremate the body of any person who has died in its area where no suitable arrangements for the disposal of the body have otherwise been made, and confers a power to recover expenses from the estate of the deceased. Burials must be carried out in a decent and orderly manner in accordance with the Burial Laws Amendment Act 1880, although no specific form of burial is prescribed. It seems to be understood that the religious views of the deceased will be respected but there is no obligation to provide a burial that complies with any particular understanding of Jewish law (or to provide a stone). 

50. The claimant submitted details of press coverage in relation to certain burials in London under the 1984 duty. I had also seen such coverage. Accounts are given of burials of several bodies in one grave. There has been no reliable statistical evidence but it seems that   there might be 50 local authority funerals annually in a London Borough and (extrapolating speculatively) several thousand in England and Wales. This would make about 1600 annually in Greater London. The press reported (page 350 of the file) that about 367 of these would involve common graves (in other words, 77% would not) and, of these, the majority would be of children (and the majority of those would be of stillborn babies). I put it this way to show that it all depends on how the statistics are presented. There are also horror stories of things going wrong, but I do not accept that these should be taken into account because usually things do not go wrong, and because things could go wrong at a religious funeral (and I have personally observed such incidents).

51. In SoSWP v FS (see above) Judge Williams said (paragraphs 70 and 71),

“I accept … that such funerals are not now restricted to a “pauper’s burial” … The fact that FS [the prisoner] was not given a funeral grant did not therefore prevent her late son’s body from being given a funeral, even if she did not have the means to provide it … Whether on the facts the residual duty would have fallen on the local authority or the National Health Service does not matter. It would have fallen somewhere in the public domain. Failure to make provision for FS, or any other specific individual to pay for the funeral was not therefore a failure of the state to make provision for the funeral at all. The overall position is that if surviving relatives or others will not or cannot pay for a funeral, there are two systems available to help. One is a funeral payment of the kind that [FS] wishes to claim. The other is the provision of a funeral by a public authority …”.

52. In the present case, the deceased was not denied a burial in accordance with his wishes. The Jewish community, through the United Synagogue Burial Society scheme as explained in the evidence of Mr Hartog, does its best to ensure that people who are halachically Jewish are not denied such a burial. Of course, this is not really a duty that “would have fallen somewhere in the public domain” (per Judge Williams) but it is a background state of affairs that goes to the rationality of the statutory scheme and also to whether there has been any breach of the Convention rights.

53. There might be an argument that the operation of the 1984 duty is discriminatory in any particular case, but again that is not a matter over which the Upper Tribunal has any jurisdiction and in the present case the deceased was not buried in pursuance of the 1984 duty.

Conclusions on the Rationality of Domestic Provisions

54. In CIS/1722/2002 I said (as a Social Security Commissioner) :

“15. …  the funeral payments scheme is in the public interest by targeting benefits for those with the greatest need and public funds are reasonably and proportionately allocated taking into account the existing means of claimants.
16. …  the purpose of the funeral payment scheme is to give to impoverished claimants (as evidenced by their entitlement to means tested benefits) something of the same opportunity as is already possessed by those who are not so impoverished. In effect this is a scheme to avoid discrimination against those who are impoverished. It would be a distortion of its purpose and operation to see it as a scheme that discriminates against those who are not so impoverished as to be entitled to a means tested benefit.”

Judge Williams adopted a similar approach in SoSWP v FS.

55. It should therefore come as no surprise that I agree with the approach of the Secretary of State as outlined above. The funeral payments scheme is about payments to contribute to the cost of a funeral. It is provided under the authority of social security legislation. It is not about the right (of the deceased or anybody else) to a funeral. It is not about allocating responsibility to arrange or to pay for a funeral. It is about helping to alleviate financial hardship in relevant cases. It is a rational workable scheme, made within the authority of the legislation, albeit with limitations and exclusions. Some of those limitations and exclusions may be frustrating (and certainly Commissioners and the Upper Tribunal have seen some very sad cases) but that comes nowhere near affecting the validity of the regulations. In particular I see nothing irrational (or discriminatory) about the time limit for claiming.

The Claimant’s Case Under Human Rights Law

56. The claimant argues that he is an indirect victim of a breach of rights protected by article 9. The manifestation of a religious belief includes the performance of rituals (Dehlab v Switzerland ECHR Application 42393/98). This includes the right to an orthodox Jewish funeral within the required time (Johannische Kirche & Peters v Germany ECHR Application 41754/98). There was no realistic possibility that the local authority would take responsibility for arranging such a funeral and the claimant was put in an impossible position. He had to choose between carrying out his duties as an executor on the one hand, and carrying out the deceased’s wishes as to the nature of the funeral on the other. He had no assistance from the state in doing this. The lack of such provision represents a lack of respect by the state for the article 9 rights of orthodox Jews who are without means as it renders the rights ineffective. There is nothing about the matter that would satisfy article 9(2) so as to allow the limitation on the exercise of the right that has occurred in this case. In summary the right of the claimant to exercise his duty to secure the manifestation of the deceased’s religion in a particular form of funeral (which in religious terms is a requirement, not a preference) has been breached.

57. If the above is correct, then the claimant argues that the three month time limit on claiming should be disapplied so as to enable the practicalities of sorting out the administration of the estate to be dealt with, and because it amounts to a disproportionate sanction to be applied if convention rights had been breached. I do not see that this follows – an effective claim may be made even if some of the details require further investigation.

58. It is then argued that there has been a breach of article 14 when read with article 9 because the scheme has a disproportionately prejudicial effect on a particular group defined by religion:

“The lack of any provision … is more likely to adversely affect orthodox Jews where the deceased is impecunious at the time of death and without any family (or anyone who is willing to assume responsibility for the costs of the funeral) such that there is a real risk that the deceased will not be buried in accordance with their religious beliefs, compared with to others in the same position, who do not share the same beliefs and for whom burial by the local authority would be sufficient to amount to a decent burial (despite the absence of any requirement that that the burial takes place within 24 hours of death” (para 17.3 of Mr Rutledge’s submissions of 13th May 2009).

59. The claimant also argued that there has been a breach of article 14 when read with article 1 of protocol 1 because having decided to provide a scheme of funeral payments based on need, the state must grant entitlement to those payments without discrimination, and this includes treating unlike cases differently.
 
The Victim Argument

60. Ms Rhee raised doubts about whether the claimant could properly claim to be a victim of discrimination in respect of the funeral expenses and religious requirements of the deceased. I do not share these doubts. Ms Rhee conceded that a family member of the deceased can claim to be a victim (CIS/3280 2001, CIS/4169/2001 and CIS/1870/2003). In CIS/1870/2003 Mr Commissioner Howell stated that the Convention rights at issue were those of the claimant, and could not depend on the religious rights “of the deceased, or the community as a whole, or of some segment of it, however defined” (paragraph 15). That is a very general statement made in the context of the facts of that particular case. However, in the present case the claimant was (as found by the tribunal) the responsible person; he also had an interest as a personal representative of the deceased (even though that does not in itself give him the right to claim a funeral expenses payment); he is also a member of the relevant synagogue and (it may be assumed) shares the discomfort of the congregation at the lack of a stone.

Article 8 and Article 9

61. Generally the operation of the funeral expenses scheme engages article 8 (Esfandiari and Others v Secretary of State for Work and Pensions [2006] EWCA Civ 282). I am not sure that I follow the apparent conclusion to the contrary in the decision of Mr Justice Cranston sitting in the Administrative Court of the High Court in Ghai and Others v Newcastle City Council [2009] EWCH 978 (Admin), but that conclusion seems to have rested on the specific facts of that case. The case was about the refusal of the Council to allow cremation of a body on an open air pyre as required by some orthodox Hindus and Sikhs and its view that such a practice would be unlawful. Nevertheless Mr Justice Cranston did say (paragraphs 140 – 141):

“However, I am inclined to interpret the case law so that in some circumstances Article 8 protects a right to a particular kind of funeral, or a right to have burial or cremation take place in a specific way … In any event, working from general principle it seems to me that in some circumstances the respect accorded to private (and indeed family life) in Article 8 can extend to aspects of funeral arrangements …”

In the event, the appeal to the Court of Appeal against that decision proceeded on a very different basis (see above).

62. In CIS/3280/2001 the Social SecurityCommissioner decided that funeral payments fall within the ambit of Article 8 because (paragraph 8) the provisions:

“which allow financially disadvantaged members of society to discharge their family obligations to arrange for the funeral of a family member in accordance with the family’s customs, traditions and religious or other observances constitute a demonstration by the State of respect for one of the most solemn and fundamental manifestations of family life”.

63. The provisions of the funeral payments scheme are not in themselves in breach of article 8. As I said in CIS/1722/2002:

“15. …  the funeral payments scheme is in the public interest by targeting benefits for those with the greatest need and public funds are reasonably and proportionately allocated taking into account the existing means of claimants. Thus, the scheme comes within Article 8(2) because it is in accordance with the law and is necessary in a democratic society in the interests of the economic well-being of the country. It also protects the rights of others by ensuring that priority is given to claimants in the greatest need.  

64. However, it is not necessary for the claimant to establish that there has been a direct breach of article 8. Discrimination in respect of the claimant’s article 8 rights when taken together with article 14 would be sufficient to establish the claimant’s case. Certainly nothing has happened in this case that can be characterised as interference by a public body, or an explicit lack of respect. Nobody tried to prevent the burial of the deceased in accordance with Jewish law. The argument is about the failure to recognise the need for a difference in treatment.

65. The Secretary of State argues that article 9 is not engaged. It seems to me that funeral arrangements necessarily engage “the freedom … to manifest … religion or belief, in worship, teaching, practice and observance”. Issues around death are at the very heart of most religious movements. This is consistent with the conclusion of Mr Justice Cranston at paragraph 101 of Ghai (above) after a lengthy consideration of the authorities. However, as with article 8, there was no actual interference with these rights and the question is whether there was a breach of article 14 in relation to them. 

Article 14 and Status

66. The claimant’s argument relies both on alleged discrimination based on the deceased’s (and the claimant’s) religious status, and alleged discrimination based on the claimant’s status as a personal representative (compared with a person in receipt of a qualifying benefit). 

Was there Religious Discrimination?

66. There was no direct difference in treatment or discrimination. The statutory scheme applies to people of all religions and no religion alike. The conditions of entitlement relate to the means of those undertaking responsibility for the funeral and to the means and structure of family and friendship networks. There is nothing in the statutory scheme that prevented the burial of the deceased in accordance with his religious views. In fact, according to the evidence from Rabbi Golumb, the community has a residual duty to initiate the arrangements in the absence of any family, and to carry out the funereal duties. 

67. The only outstanding issue in this context is the stone. It seems to me that although it is a requirement of Jewish law that there be a stone, the provision of the stone is not in fact part of the burial arrangements. It comes later (usually, in this country, approaching a year later). There is nothing in domestic, human rights, or European law that requires the state to make provision for a stone. Accordingly, there can be no discrimination in the failure to provide a stone, any more than there is discrimination in the failure of the State to provide other items required by religious observances.

68. I have also considered the cases and jurisprudence of the European Court of Human Rights in relation to indirect discrimination, but can find nothing there that would help the claimant establish his case.
Article 14 and Justification
69. It is clear that in relation to entitlement to a payment from the social fund for funeral expenses, the claimant was treated differently from the ay in which a person who was entitled to one of the qualifying benefits would have been treated. However, it is not every difference in treatment that constitutes discrimination within the meaning of Article 14. If a person is treated differently from another because of status, there is only discrimination for the purposes of Article 14 if the difference in treatment does not pursue a legitimate aim or is disproportionate to the aim pursued. In Belgian Linguistics (No 2) (1979-80) 1 EHRR 252 at 284 the European Court of Human Rights said:
“ … Article 14 does not forbid every difference of treatment in the exercise of the rights and freedoms recognised …
… [T]he principle of equality of treatment is violated if the distinction has no objective and reasonable justification.  The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles that normally prevail in democratic societies.  A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aims sought to be realised”.
70. In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 (“Carson”), drawing an important distinction Lord Hoffman said:

“14.  … Discrimination means a failure to treat like cases alike.  There is obviously no discrimination when the cases are relevantly different….  There is discrimination only if the cases are not sufficiently different to justify the difference in treatment….”
	
15. Whether cases are sufficiently different to justify the difference in treatment is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and … gender, are seldom, if ever, acceptable grounds for differences in treatment … the Strasbourg court has given [article 14] a wide interpretation… and it is therefore necessary … to distinguish between those grounds of discrimination which prima facie offend our notions of respect due to the individual and those which merely require some form of rational justification….

16. There are two important consequences of making this distinction.  First, discrimination in the first category cannot be justified merely on utilitarian grounds, e.g. that it is rational to prefer to employ men rather than women because more women give up their employment to look after children.  That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit.  On the other hand, differences in treatment in the second category (e.g. on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest.  Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.

17. There may be borderline cases in which in which it is not easy to allocate the ground of discrimination to one category or the other and … there are shifts in the values of society on these matters … But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy …”

71. In Stec the European Court of Human Rights said:

“51. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a beach of the article … A difference in treatment is, however, discriminatory, if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.

52. The scope of this margin will vary according to the circumstances, the subject matter and the background … As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention … On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy …”

Conclusions

72. Although relative wealth is specifically referred to in the wording of article 14 of the Convention (as “property”), it is not one of the “suspect” grounds listed by Lord Hoffman in paragraph 15 of Carson. To treat a person differently on grounds of being wealthier does not inevitably “offend our notions of respect due to the individual” although it is capable of so doing. It depends on the circumstances and the nature of the difference in treatment. In the present case the difference in treatment was not demeaning to the claimant. It did not deprive the claimant of “entitlement to equal respect and to be treated as an end and not a means” (per Lord Hoffman in Carson). It does nevertheless  require rational justification. This consists of the policy of the State to focus financial assistance on those of more limited means, and this policy has been implemented in a proportionate manner. The State has, as has been observed above, a wide margin of appreciation in the implementation of social policy and in economic matters. The legal position in the present case is well within that margin.

73. For the above reasons this appeal by the claimant fails.

H. Levenson
Judge of the Upper Tribunal
1st July 2010