CIS/1722/2002

Decision

1. This appeal by the claimant does not succeed. I confirm the decision of the Leicester tribunal of 22nd January 2002 (reference U/42/038/2001/01731) to the effect that in respect of the funeral expenses incurred after the death of his late brother on 6th April 2001 the claimant is not entitled to a payment from the social fund. In view of the contents of my Direction of 6th February 2003, and the claimant’s failure to respond, I refuse his request for an oral hearing of this appeal. I am satisfied that the appeal can be properly determined without an oral hearing.

Background and Procedure

2. The claimant was born on 9th October 1928. His late brother was born on 24th July 1940 and had been severely disabled and in receipt of benefits throughout his life. After their parents died, the claimant’s brother lived with the claimant and the claimant’s wife for 27 years. In the 3 years prior to his death he resided in a private residential care home, although the clamant remained his appointee and/or legal guardian and maintained regular contact with him and incurred expenditure on buying things for him. The claimant’s brother died on 6th April 2001 while the claimant and his wife were on holiday in Malta. The claimant’s (adult) daughter was asked by the staff of the home to make arrangements with the funeral director, which she did, informing the funeral director that the invoice should be sent to the claimant. The funeral took place on 17th April 2001. The cost invoiced by the funeral director was £1373 and there were some other expenses. The invoice was settled by the claimant with money borrowed from a cousin.

3. On 23rd May 2001 the claimant applied for a payment from the social fund to meet the funeral expenses. On the same day the Secretary of State refused to make an award on the grounds that the claimant did not have an award of a qualifying benefit (see paragraph 5 below) and on 7th June 2001 the claimant appealed to the tribunal against this decision. On 22nd January 2002 the tribunal confirmed the decision. On 20th March 2002 the chairman of the tribunal granted the claimant’s application for leave to appeal to the Commissioner against the decision of the tribunal. The Secretary of State opposes the appeal and supports the decision of the tribunal. It is not disputed that the claimant did not have an award of a qualifying benefit, and that this was the basis for the decision. At various places in the file other maters are discussed which are not relevant to the basis for the decision.

Domestic Legal Provisions and Ultra Vires

4. 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 …

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).

5. 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 matter in dispute is governed by regulation 7(1)(a): 
	
7(1) … a social fund payment (referred to in these regulations as a “funeral payment”) to meet funeral expenses shall be made only where-

(a)	the claimant or his partner (referred to … as “the responsible person”), at the date of claim for a funeral payment –

(i)	has an award of income support, income-based jobseeker’s allowance, working families’ tax credit, housing benefit or [in certain cases] council tax benefit.

6. It is important to note that it the claimant, and not the deceased, who has to be in receipt of a relevant qualifying benefit. However, regulation 8 makes provision for the assets of the deceased to be brought into account in calculating the amount of any entitlement. The first argument put forward by the Law Centre acting on behalf of the claimant is that because the regulations bring into account in making this calculation “both the income and capital of the claimant but only the capital of the deceased” regulation 7 is ultra vires (beyond the regulation making  powers contained in) section 175. 

7. I do not follow this argument. Regulation 8 refers to the “assets” of the deceased, not to the capital alone. Further, I do not see how, given the structure of these particular regulations, provisions affecting the calculation of the amount of entitlement can render ultra vires provisions dealing with whether entitlement can be established in the first place.  Finally, the wording of sections 138 and 175 is clearly wide enough to authorise the wording of regulation 7(1) (see the extensive discussion by the Commissioner in CIS/3150/1999, which was followed and approved by the Commissioner in CIS/4769 in paragraphs 21 to 23).

The Human Rights Act 1998

8. The second argument raised on behalf of the claimant relates to the position under the Human Rights Act 1998 and what is usually referred to as the European Convention on Human Rights (“the Convention”). The full legal reference given in section 21(1) of the 1998 Act is “the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950”. 

9. The Human Rights Act 1998 came fully into force on 2nd October 2000. Amongst other matters, it provides for direct application of the Convention in UK domestic law. 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

Article 1 of the First Protocol

10. Article 1 of the First Protocol provides:

Every natural or legal person in 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 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.

11. In my view the argument put on behalf of the claimant that there has been a breach of Article 1 of the First Protocol  gets nowhere. The claimant has not been deprived of any of his possessions. He was under no legal obligation to arrange or to pay for the funeral, although it is clear why he did so and most people in his position would have done the same thing. The refusal of a funeral payment did not amount to a deprivation of any possession because there was never any basis for entitlement. Although this is a statutory payment, it is non-contributory and there is never any entitlement except on a means-related basis. Decisions by the European Human Rights bodies and by Commissioners (eg CDLA/1338/2001 and CDLA/3908/2001) have held that an award of non-contributory benefit is not a possession for the purposes of Article 1 of the First Protocol. In any event, refusal of a funeral payment would come within the second paragraph of Article 1 as being in accordance with the law and in the public interest by targeting benefits for those with the greatest need. It would also be “necessary to control the use of property in accordance with the general interest”, such property being the public funds which the State has reasonably and proportionately decided to allocate to the social fund taking into account the existing means of claimants.

Articles 8 and 14

12. Although these Articles have not been referred to expressly, I have to consider whether the way in which the claimant has been treated is in breach of Articles 8 and 14 of the Convention. Article 8 provides:

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 14 provides:

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 (my emphasis).

13. Explicitly the claimant has suggested that he has been discriminated against because he is white and British and is not “an asylum seeker, an illegal immigrant or a self confessed enemy of Britain” (page 76). This is obvious and arrant nonsense and I comment no further on it. However, implicit in much of what the claimant says is an argument that he has been treated unfairly because, although of limited means, he is not poor enough to be entitled to a means tested benefit (although he has given no details of his means). 

14. In CIS/4769/2001 the Commissioner accepted a concession by the Secretary of State that the question of entitlement to a funeral payment engaged article 8, but she did not decide or discuss the issue (paragraph 25). In CIS/3280/2001 the Commissioner decided that funeral payments do 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”.

15. I am content to follow that approach. However, in my view there is no breach of Article 8 in this case. As with the discussion of the effects of Article 1 of the First Protocol, 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.  

16. Is there, though, a breach of Article 14 in the way that the funeral payments scheme respects family life by discriminating against those in the claimant’s position? The only basis on which the claimant could argue that it does would be on the basis that there is discrimination on a ground such as “social status”. Clearly the claimant has not been treated less favourably than other claimants who are not entitled to one of the qualifying benefits. However, 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.

17. For the above reasons this appeal by the claimant does not succeed.

H. Levenson
Commissioner

8th April 2003