CIS/2648/2009

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the Secretary of State succeeds in technical terms only. I make my own decision to achieve the same outcome as that made by the First-tier Tribunal but for different reasons.

2. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Social Entitlement Chamber  of the First-tier Tribunal sitting in Manchester on 10th July 2009 (reference 946/09/01781). I substitute my own decision. This is to the effect that, in respect of the funeral expenses incurred after the death of her late husband the claimant is entitled to a payment from the social fund. 

3. I refer to the Secretary of State questions relating to the calculation and payment of the actual amount due to the claimant.

Background and Procedure

4. The claimant is a woman who was born on 10th December 1959. She is the mother of twin daughters who were born in 1995 and who were not the children of the deceased. On 22nd April 2005 the claimant married the deceased in Manchester. They had both been married previously but the marriages had been dissolved. The deceased had been born on 11th March 1959 and on 20th January 2009 he sadly died at the age of 49. It was the claimant who found him. At the time of the death of the deceased and of her claim for funeral expenses the claimant was in receipt of income support as a single person. It was the claimant who took responsibility for arranging and paying for the funeral.

5. Subject to one possible exception with which I deal below the basic facts are not disputed and I take them partly from the First-tier Tribunal’s statement of reasons and partly from the claimant’s written evidence. The First-tier Tribunal found the claimant to be a credible witness. 

6. The deceased became an alcoholic and from August 2008 (as recorded by the First-tier Tribunal) he and the claimant began to live separately. He moved into housing trust accommodation. She hoped that this would be a “sharp shock” to the deceased and would prompt him to cut down on his drinking and enable them to resume living together. This had succeeded to a certain extent but he had not yet cut down his drinking sufficiently to enable them to resume living together before he died. The claimant loved her husband and they spent most days together. She cooked and cleaned for him at the place where he was living and would return to her own place in the evening. She made sure that he ate and had clean clothes to wear. They shopped together and she accompanied him to appointments with doctors. During school holidays her children would be looked after during the day by a friend, who was her next door neighbour, while the claimant spent the day with her husband. He had no contact with other members of his own family.

7. On 16th March 2009 the claimant made a claim for a social fund funeral expenses payment. On 2nd March 2009 the Secretary of State refused to make such a payment, principally on the basis that the claimant could not count as the partner of the deceased, and on 16th March 2009 the claimant appealed to the First-tier Tribunal against this decision of the Secretary of State. The tribunal allowed the appeal on 10th July 2009 on the basis that the claimant was not estranged from the deceased, but the tribunal did not consider whether they were partners at the time of death. On 16th September 2009 the District Tribunal Judge gave the Secretary of State permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal.

Relevant Legal Provisions 

8. 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 …

9. 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 …

10. It is not necessary to set out the provisions dealing with cases where the deceased had no partner. In the present case there is no dispute that the claimant had been awarded a relevant benefit and had taken responsibility for the funeral. The key issue is whether at the date of his death she was the partner of the deceased. It is clear from the structure of the regulations that the First-tier Tribunal went wrong in ignoring this question and focussing on the question of estrangement, which is only really relevant where there was no partner within the meaning of the regulations.

The Meaning of Partner, Couple and Household

11. Except in the case of polygamy, “partner” is defined in regulation 3(1) of the 2005 regulations to mean “where a person is a member of a couple, the other member of that couple”. The only definition of “couple” relevant to this case is given in the same regulation as “a man and woman who are married to each other and are members of the same household”. 

12. The regulations do no not define “household” (although there is quite a lot of case law on the meaning of that word in the context of social security). However, regulation 3(4)(a) of the 2005 regulations provides:

	3(4) For the purposes of these Regulations –

(a) persons are to be treated as not being members of the same household in the circumstances set out in regulations 16(2) and (3)(a), (b) and (d) of the Income Support Regulations.

 13. So far as is relevant, regulation 16 of the Income Support (General) Regulations 1987 as amended provides:

16(1) Subject to paragraphs (2) … the claimant and any partner … shall be treated as members of the same household notwithstanding that any of them is temporarily living away from the other members of his family.

(2) Paragraph (1) shall not apply to a person who is living away from the other members of his family where – 

(a) that person does not intend to resume living with the other members of his family; or
(b) his absence from the other members of his family is likely to exceed 52 weeks unless there are exceptional circumstances (for example the person is in hospital or otherwise has no control over the length of his absence) and the absence is unlikely to be substantially more than 52 weeks.

Regulation 16(3) deals with psychiatric patients, people in custody and those abroad or in care homes and has no relevance to the present case.

Conclusions

14. In the present case, the evidence and the findings of the tribunal establish that regulation 16(2)(a) does not apply: there was an intention to resume living together. In relation to regulation 16(2)(b) it cannot be established that the absence as from August 2008 was likely to exceed 52 weeks. Even if this could be established, it is likely that the case would fall within the exception to regulation 16(2)(b).

15. Thus, the claimant is not prevented by the provisions of regulation 3(4)(a) of the 2005 regulations from being treated as a member of the same household as her husband.

16. Regulation 3(4)(a) of the 2005 regulations refers to not being treated as a member of the same household in the circumstances set out in regulation 16(2) of the 1987 regulations. Those circumstances refer to paragraph 16(1) of the 1987 regulations not applying if paragraph 16(2) applies. The logic of this is that 16(1) is also incorporated into the story by the wording of regulation 3(4)(a). There is no doubt that before the deceased moved away from the claimant, they were partners living in the same household. The First-tier Tribunal was clearly satisfied, as am I, that the deceased was only temporarily living away from the claimant. Regulation 16(1) of the 1987 regulations requires that they continue to be treated as members of the same household. That being the case, they continued to be a couple for the purposes of regulation 7(8)(a) of the 2005 regulations.

17. Even if that were not the case, it seems to me that they were in fact still members of the same household while living away from each other. It is possible to be members of the same household in different places (R(SB) 30/83; R(SB) 8/85). Certainly in cannot be said on the facts of this case that the claimant and the deceased each had exclusive occupation of a residence, to the exclusion of the other.

18. The Secretary of State relies on the fact that the claimant was in receipt of income support as a single person. However, that was a decision made by the Secretary of State’s officials and it cannot bind the tribunal at either level in relation to the funeral expenses claim. The Secretary of State also challenges the accuracy of the finding of the First-tier Tribunal that the deceased and the claimant began to live separately in August 2008. However, that was the oral evidence to the tribunal (page 56 of the file) although various other dates have been given (page 77 penultimate paragraph and page 82). Even if the earliest date of separation is taken, it would have been open to the First-tier Tribunal to conclude that this came within the exception to regulation 16(2)(b) of the 1987 regulations and, as I have indicated in the previous paragraph, in any event I would have found that they never ceased to be members of the same household.

19. For the above reasons this appeal by the Secretary of State succeeds but so does the funeral expenses claim made by the claimant. 

H. Levenson
Judge of the Upper Tribunal
12th March 2010