CIS/788/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the Claimant, brought with my leave, against a decision of the North Shields Appeal Tribunal made on 4 July 2002. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal and set aside the Tribunal’s decision. In exercise of the power in s.14(8)(a)(i) of the Social Security Act 1998 I substitute the decision which the Tribunal ought in my judgment to have made, namely: 

The Claimant’s appeal against the decision made on 15 November 2001            is allowed. The Claimant is entitled to a funeral payment in respect of the funeral expenses of her grandson Lewis. 

2.	Lewis was just 3 months old when he died. He was being cared for by his mother (Miss G), who was then aged 17 and by Miss G’s mother, the Claimant, with whom Miss G was living. Miss G was in receipt of child benefit in respect of Lewis, but she was not capable of qualifying for a funeral payment because she was not in receipt of income support or any of the other qualifying benefits specified in Reg. 7(1)(a)(i) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (“the 1987 Regulations”). In any event, the funeral directors were unwilling to enter into a contract with Miss G, because she was under 18, and so responsibility for the funeral expenses was taken by the Claimant. The father of Lewis was not living with them (and indeed had never seen Lewis). He was in receipt of jobseeker’s allowance which (assuming that it was income-based jobseeker’s allowance) is one of the benefits specified in Reg. 7(1)(a)(i). 

3.	Reg. 7 of the 1987 Regulations provides, so far as directly material, as follows:- 

“(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 (in this part of these Regulations referred to as “the responsible person”), at the date of the claim for a funeral payment 

(i)	has an award of income support, income-based jobseeker’s allowance, …………..

(e)	the claimant or his partner accepts responsibility for those expenses and – 

(i)	the responsible person was the partner of the deceased at the date of death; or

(ii)	in the case where the deceased was – 
(aa)	a child and there is no absent parent or there is an absent parent who, or whose partner, had an award of a benefit to which sub-paragraph (a) above refers current as at the date of death, the responsible person was the person or the partner of the person responsible for that child for the purposes of Part IX of the Social Security Contributions and Benefits Act 1992 as at the date of death; or 
(bb)	a still-born child, the responsible person was a parent of that still-born child or the parner of a parent of that still-born child as at the date when the child was still-born; or

(iii)	in a case where the deceased had no partner and (ii) above does not apply, the responsible person was, subject to paragraphs (3) and (4), an immediate family member of the deceased and it is reasonable for the responsible person to accept responsibility for those expenses; or 

(iv)	in a case where the deceased had no partner and (ii) and (iii) above do not apply, the responsible person was, subject to paragraphs (3) and (4), either – 
(aa) a close relative of the deceased; or 
(bb)a close friend of the deceased,
and it is reasonable for the responsible person to accept responsibility for those expenses

(3)	Subject to paragraph (4), the responsible person shall not be entitled to a funeral payment where he 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)	neither those immediate family members nor their partners have been awarded a benefit to which paragraph (1)(a) refers; and 

(c)	any of the immediate family members to which sub-paragraph (b) above refers was not estranged from the deceased at the date of his death.

(4)	Paragraph (3) shall not apply to disentitle the responsible person from a funeral payment where the immediate family member to whom that paragraph applies is – 

(za) a person who has not attained the age of 18; 

………………………………………”

4.	The following definitions from Reg. 3 of the 1987 Regulations are relevant: 

“close relative” means 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.

“immediate family member” means a parent, son or daughter.” 

5.	It is common ground that the Claimant satisfied the conditions in Reg. 7(1)(a) to (d), and that she accepted responsibility for the expenses as required by the opening words of Reg. 7(1)(e). The Claimant contends that she was a “close friend” of Lewis within 7(1)(e)(iv)(bb), and is therefore entitled to a funeral payment. 

6.	However, it is contended on behalf of the Secretary of State that, even if the Claimant was a “close friend” of Lewis, the decision refusing a funeral payment was correctly made because head (e)(iv) is expressed to apply only where heads (ii) and (iii) “do not apply.” It is said that the effect of those words (and specifically the reference to head (ii)) is that where head (ii) applies, heads (iii) and (iv) cannot. It is said that head (ii) “applies” where (a) the deceased was a child and (b) there was either no absent parent or (if there was one) he was (as here) in receipt of a qualifying benefit and (c) there was a person in receipt of child benefit in respect of the deceased. It is contended that, in that situation, only the person in receipt of child benefit can qualify for a funeral payment. The Tribunal accepted that contention, and so dismissed the Claimant’s appeal.

7.	I think it important to set out the passage from the Benefits Agency’s letter to the Claimant dated 17 January 2002 in which the decision was justified, as it is I think the clearest and most detailed exposition of the Secretary of State’s position. 

“Regulation 7(1)(e) imposes a strict priority order for determining who is to be treated as the “responsible person”. The first priority falls upon the partner of the deceased and obviously has no relevance to this case. The second priority refers to situations where the deceased was a child and advises that the responsible person for funeral expenses is the person responsible for the child for the purposes of Child Benefit as at the date of death. Only in cases where there is an “absent parent” who was not in receipt of a qualifying benefit can the second priority not be appropriate. …………………………….

The third and fourth priorities only come into play if the first two priority categories do not apply, those priorities relate to immediate family members, close relatives and close friends. It is only when the first two priorities have been dismissed and the remaining priorities apply that the further provisions of regulation 7(3) and (4) have any relevance ………….”

8.	The issue between the parties appears to concern the meaning of the words “and (ii) and (iii) above do not apply” in head (e)(iv). The Claimant says that (ii) does not “apply” in this case because its requirements were not satisfied in that the “responsible person” (i.e. the Claimant) was not entitled to child benefit, and so did not fulfil the concluding part of (ii)(aa). The Claimant’s construction is therefore in effect that the words “ (ii) and (iii) above do not apply” have the meaning “ (ii) and (iii) above are not satisfied”.

9.	The Secretary of State, on the other hand, says that head (ii) did “apply” in the sense that there is a person in existence (i.e. Miss G) who, had she accepted responsibility for the funeral payments, would have fallen within head (ii). The effect, of the words “does not apply” is therefore (as I understand it) said to be to prevent a claimant falling within a particular head if there is some other person who would have fallen within an earlier head if he or she (rather than the claimant) had accepted responsibility for the funeral payments.  The Secretary of State’s construction therefore attributes to the words “ (ii) and (iii) above do not apply” a rather more complex meaning, along the lines of “(ii) and (iii) above have no application because there is no person who, had he taken responsibility for the funeral expenses, would have fallen within (ii) or (iii)”. 

10.	 I do not in the final analysis find it necessary to decide which of these positions is 
correct. That is because, even if the Secretary of State’s view is correct, it must in my judgment be modified slightly in the following respect. I think that one must say that an earlier head “does not apply” where, although there is a person who would have fallen within that head had he been able to take responsibility for the funeral expenses, he was in practice prevented him taking such responsibility by lack of legal capacity or by doubts about his legal capacity.

11.	To take a perhaps extreme example, head (ii)(bb) applies, in the case of a still-born 
      child, where the responsible person was a parent of that still-born child or the partner 
of a parent of that still-born child as at the date when the child was still-born. The Secretary of State’s contention would be, as I understand it, that if at the date of the funeral either or both of the still-born child’s parents is living, head (ii) “applies” and therefore neither head (iii) nor head (iv) can be invoked. However, suppose that there was only one such parent living, and that parent was mentally incapable of entering into a contract for funeral expenses. It seems to me that it would be absurd to hold that, in that situation, head (ii)(bb) “applied”, and therefore that neither head (iii) nor head (iv) could be invoked. 

12.	It is not wholly clear whether, if the funeral director had been willing to enter into a 
contract with Miss G, she would have been liable to pay the price. She probably would have been on the ground that the funeral was a “necessary” and so (a) was a contract of a nature which at common law Miss G had capacity to enter into (see Chapple v. Cooper (1844) 13 M & W 252, holding that to be the case in relation to a funeral for a minor’s deceased husband) and/or (b) (to the extent that a sale of goods was involved) an obligation to pay a reasonable price was imposed by s.3 of the Sale of Goods Act 1979. I agree that, if the funeral directors had contracted with Miss G, she would have accepted responsibility for the funeral expenses within the meaning of the opening words of Reg. 7(1)(e): see the decision of Mrs. Commissioner Brown in C1/01-02 (SF). However, the Tribunal found that the funeral directors had refused to contract with Miss G because she was under 18. The reasoning in Chapple v. Cooper turned substantially on the fact that the deceased had been the minor’s husband. In the absence of authority establishing beyond doubt that the funeral in the present case would have been a “necessary”, and therefore that Miss G would have been bound to pay the expenses, the funeral directors cannot be said to have acted unreasonably in refusing to contract with Miss G. That is arguably recognised by Reg. 7(4), which makes exceptions from the general provision in Reg. 7(3) that a close relative or close friend cannot claim funeral expenses where there is an immediate family member. One of those exceptions applies where the immediate family member is under 18. 

13.	In those circumstances there was in my judgment, owing to Miss G’s doubtful legal capacity and the attitude of the funeral directors, no real possibility of Miss G taking responsibility for the funeral expenses in this case, and the situation was therefore in my judgment one where Reg. 7(1)(e)(ii) “did not apply”. 

14.	It follows, in my judgment, that there was in this case no bar to the Claimant qualifying under (iii) or (iv). Head (iii) could not apply because the Claimant is not within the definition of “immediate family member”. Nor is she within the definition of “close relative.” That means that she can only qualify if she was a “close friend.” 

15.	One would not ordinarily describe the relationship between a grandmother and a grandchild aged 3 months as one of friendship. The primary definition of “friend” in the Shorter Oxford English Dictionary is: “a person joined by affection and intimacy to another, independently of sexual or family love.” The affection of the Claimant for her grandson was derived from family love, and it must in any event be arguable that friendship must be mutual and that the intellect and emotions of a baby aged 3 months are insufficiently developed to be capable of friendship in the ordinary sense of that term. However, I note that at no stage has the Secretary of State contended that the Claimant was not a “close friend” of her grandson, although it is fair to say that he has not positively accepted that she was. “Close relative” is defined as including (among other relationships) parents-in-law, step-parents-in-law, and brothers and sisters-in-law. However, as I have said, grandchildren and grandparents are not included. Nor, for example, are uncles and aunts, or nephews and nieces. The general intention behind the definitions is plainly that a person may qualify either simply by virtue of the closeness of the family relationship, or by friendship. However, children may be cared for by close relatives such as grandparents and uncles or aunts who are not within the definition of “close relative”. In those circumstances  it cannot in my judgment have been intended that either the closeness of the family relationship or the very young age of the child should prevent such relatives qualifying under the alternative ground of friendship. I think, therefore, that “friend” must in this context be read as not excluding cases where the affection is derived from family love or where the child is too young to be capable of anything amounting to friendship in the ordinary sense of that term. I therefore hold that the Claimant was a “close friend” of her grandson. 

16.	As I have said, Reg. 7(3), giving priority to immediate family members, does not apply in the case where the immediate family member (i.e. in this case Miss G) was under 18. 

17.	I record that the Claimant’s representative made alternative submissions to the effect that, if the Claimant were not entitled to a funeral payment, Reg. 7 infringes Article 14 of the European Convention on Human Rights, in conjunction with Article 8. In the circumstances it is not necessary for me to consider that contention. 

	(Signed)	Charles Turnbull
		Commissioner

		30 June 2003