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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [2000] NISSCSC C1/00-01(SF) (15 May 2004) URL: http://www.bailii.org/nie/cases/NISSCSC/2000/C1_00-01(SF).html Cite as: [2000] NISSCSC C1/-1(SF), [2000] NISSCSC C1/00-01(SF) |
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[2000] NISSCSC C1/00-01(SF) (15 May 2004)
Decision No: C1/00-01(SF)
"Claimant:
I was getting Northern Ireland Housing Executive benefit August 1998 because of age didn't have to pay rent.
I live on own.
Home is owned by Northern Ireland Housing Executive. I moved in 3 years ago. Bungalow before, [ ].
Father in hospital May 98 Royal, Ward 34. Bit confused. Mother deceased.
H (Junior) 58 deceased.
He lived with partner, [ ]. She died 6 weeks before. She has 2 daughters and sons from marriage none from brother. Brother and her lived [ ]. 20 years. I think drink killed him, both of them. I knew her people, brother in army. I was with him. [ ] was her single name. This was in 1948. I was in army 1956. When young, knew each other. B or J. Not for years.
I worked in England over the years. B 1968. Belfast area. He's married. When saw him last he moved into [ ]. Redeveloped.
J assume Belfast. B died 12 years back mother of D. B, if alive 54. Over years I moved around. In 1963 married. Divorced 1967. Police came to me, late at night. I thought it was father. They had to break door down. Found on settee. They asked about other relatives but I didn't know address. Mellville's told me, in Mr F s', that he took care of D's mother's funeral. Apparently she knew my address. I received letter, August, Disability Living Allowance the brothers book. I got giro owing from brothers Disability Living Allowance £56.20.
Police contacted Melville's, asked him to take care of body. Melville's probably told police. Next morning, I phoned hospital. Father was next of kin but nurse said not to mention it. I phoned Mr F (Police had told me it was Melville's). He filled out form and obituary. Belfast Telegraph. I couldn't make funeral I was not well. It was in Belfast. Don't know if brother or sister at it. I explained that to Ms M E , Social Security. Brother don't think he had any possessions. Assume D cleared out house I don't know her. Last time she was 5 or 6 years old. Brother was about 58. I can't add anything."
"(i) Adjudication officer's submission
(ii) Claimant's letter of 22.11.99
(iii) Bangor Citizens Advice Bureau submission, 30.11.99
(iv) Disability Living Allowance letter 22.9.99
(v) List of income/outgoings
(vi) Disability Living Allowance letter 22.9.99 re brother's money"
"The factual background to this claim is that the claimant is the eldest of 3 brothers, viz himself, B and the deceased. He also has a sister J and another sister B who is deceased. B had a daughter D who is referred to as the claimant's sister but is in fact his niece. The claimant's mother is deceased but his father is alive. His father receives income support and has been a hospital patient (Royal Victoria Hospital) since May 1998 and is confused. The claimant's family were originally from Belfast but he worked in England for some years before settling in Bangor. From questioning the claimant there is nothing to cast doubt on the fact that for many years he and his brothers and sisters drifted apart and lost contact with each other. This has been to such an extent that the claimant is unsure of their addresses or circumstances.
The police came to the claimant's house late at night to tell him his brother H had been found dead at his home. It is likely that the police initially contacted an undertakers close to the deceased's home and they were able to provide some details and they had been involved in arranging the deceased's partner's funeral shortly before. The police appear to have obtained the claimant's address from a daughter of the deceased's partner, D. The local undertakers Mellvilles, made the funeral arrangements. The claimant was to ill to attend the funeral and does not know if his surviving brother or sister attended or whether they are in receipt of a relevant benefit. As was mentioned earlier, this factual account is accepted.
The claimant made a claim for a funeral payment in respect of his late brother. At page 6 it is ticked the deceased had no surviving parent and at P7 it is ticked that the deceased had no other surviving close relatives, such as brothers or sisters. Both these statements are of course incorrect but it is accepted that there was no deliberate intent on the claimant's part to mislead. As the Citizens Advice Bureau submission indicates the form was only signed by the claimant and was completed by a third party who appears to be familiar with completing such forms, perhaps the undertakers, though they have not acknowledged completing the form at p17. It subsequently transpired the claimant's father is alive as is a brother and sister.
The claimant is in receipt of a qualifying benefit viz housing benefit. The Department took advice from Central Adjudication Services and concluded it was not reasonable for the claimant to have taken responsibility for the funeral on the basis of lack of contact.
In the Adjudication Officer's submission reference is made to regulation 6(e) (iv) whereby it must be reasonable for the responsible person to accept responsibility Reg 6(9) gives some assistance on 'reasonableness' in that regard is to be had to the nature and extent of the contact with the deceased. Page 1089 of the 1999 edition of Mesher and Wood refers to C15 12783 (1996 (R (I.S.) 3(98). This holds that in deciding the nature and extent of the contact regard should be had to the person's relationship with the deceased as a whole and not just during the period immediately before death. In that case the claim was made in respect of a deceased parent with whom there had been no contact for 24 years. The Commissioner held that the lack of contact did not automatically erase the contact in the preceding 30 years (see also CIS 13 20/196). It is the present tribunal's view that in the circumstances it was not unreasonable for the claimant to have accepted responsibility. The claimant was the eldest and while he had no contact apparently for 20 years or so they were brothers and had known each other growing up together. The claimant is now 61 and his deceased brother was 58.
As the Adjudication Officer's submission refers, the fact it is held by the Tribunal that it was reasonable for the claimant to accept responsibility is not the end of the matter. Reg 6(3) would prevent a payment to the responsible person if there are immediate family members not on a relevant benefit and not estranged. The deceased father is an immediate family member but the claim is not defeated by reg 6(3) as he has been in hospital since 12.5.99 and was on Income Support. The claim would also be defeated by virtue of Reg 6(6)(a) if it was shown any of the deceased brothers or sisters had close contact. On the evidence, there is nothing to suggest this. Finally Reg 6(6)(b) prevents a claim succeeding if the evidence suggests the other brothers and sisters had equal contact with the deceased and are not in receipt of a relevant benefit. The evidence indicates that it cannot be established one had more contact than the other. The evidence is that all the brothers and sisters drifted apart over the preceding 20 years. The most that can be said is they had equal contact or perhaps more accurately an equal amount of lack of contact. On the evidence it certainly cannot be established the claimant had more contact. He himself has argued he had no contact.
On the basis that the contact between the brothers and sisters as close relatives of the deceased was equal the next question is whether they were in receipt of a relevant benefit. The short answer is that this is not known. Ultimately, the question turns on where the onus of proof lies. In the view of the Tribunal the onus is on the claimant to show his brother and sister one are on a relevant benefit. Although not argued in the Adjudication Officer's submissions by 6(6)(c) it would also be necessary to compare the capital, if any, of the claimant's brother and sister. In practice this will be a difficult burden for the claimant to discharge given the lack of knowledge of his brother and sister's situation. Mesher at p1090 refers to reg 7(6)(6)(b) but is not informative on the issue of onus of proof. The Citizens Advice Bureau submission of 3.11.99 refers at question 2 to a negative assessment. By 7(6)(b) where the claimant is a close relative and there are other close relatives in equal contact the claim fails unless that other close relative is also in receipt of a relevant benefit. In the view of the Tribunal where this situation pertains the burden of proof is on the claimant to establish that other relative is on a relevant benefit. The Tribunal can envisage hardship on this approach, for instance, as in the present case, where the circumstances of the other relative is unknown or they live abroad where they could not receive a relevant benefit. However unfairly this may operate in individual cases the Tribunal interprets the legislation as placing the onus on the claimant to establish entitlement. Consequently, as he cannot establish if his brother and sister are on a relevant benefit and do not have relevant capital his claim fails."
" the claimant is not entitled to a funeral payment from the Social Fund in respect of the expenses arising from the funeral of his late brother, Mr H K Whilst it was reasonable for the claimant to have accepted responsibility for the funeral the deceased had other close relatives, namely a brother B and sister J. They had equal contact with the deceased as had the claimant and it has not been established that they are in receipt of a relevant benefit nor has it been established what capital they have, if any
Appeal dismissed
Regs 2(1), 6(1)(iv)(aa), (5), (6)(b)(c) of the Social Fund (Maternity and Funeral Expenses) (Gen.) Regs. (NI) 1987."
"Interpretation
2.(1) In these regulations
"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;
"funeral payment" is to be construed in accordance with regulation 6;
"immediate family member" means a parent, son or daughter;
PAYMENTS FOR FUNERAL EXPENSES
Entitlement6. (1) Subject to paragraphs (2) to (7), regulation 7 and to Parts IV
and V, 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 has (in this Part referred to as "the responsible person"), at the date of claim for a funeral payment has an award of income support, income-based jobseeker's allowance, family credit, disability working allowance or housing benefit; and
(b) the funeral takes place
(i)
(ii) in the United Kingdom
(c) the deceased was ordinarily resident in the United Kingdom at the date of his death;
(d) the claim is made within the prescribed time for claiming a funeral payment; and
(e) the claimant
(i)
(ii)
(iii)
(iv) in a case where the deceased had no partner and heads (ii) and (iii) do not apply, the responsible person was, subject to paragraphs (3) and (4), either -
(aa) a close relative of the deceased, or
(bb)
and it is reasonable for the responsible person to accept responsibility for those expenses.
(1A)
(2)
(3) In a case to which paragraph (1)(e) (iv) applies and subject to paragraph (4), the responsible person shall not be entitled to a funeral payment under these Regulations where -
(a) there are one or more immediate family members of the deceased (not including any immediate family members who were children at the date of death of the deceased);
(b) neither those immediate family members nor their partners have been awarded benefit to which paragraph (1)(a) refers; and
(c) any of the immediate family members to which sub-paragraph (b) 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 which the immediate family member to whom that paragraph applies is -
(a)
(b)
(c)
(d) a person who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 1975 or, as the case may be, the Social Security (Hospital In-Patients) Regulations 1975 and either that immediate family member or his partner had been awarded a benefit to which paragraph (1)(a) refers immediately before that immediate family member was first regarded as receiving such treatment.
(5) In the case to which paragraph (1)(e) (iv) applies, whether it is reasonable for a person to accept responsibility for meeting the expenses of a funeral shall be determined by the nature and extent of that person's contact with the deceased.
(6) in a case where the deceased had one or more close relatives and the responsible person is a person to whom paragraph (1)(e) (iv) applies, 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, has been awarded a benefit to which paragraph (1)(a) refers; or
(c) in equally close contact with the deceased and possesses, together with his partner, if he has one, more capital than the responsible person and his partner and that capital exceeds
(i) where the close relative or his partner is aged 60 or over, £1,000, or
(ii) where the close relative and his partner, if he has one, are both aged under 60, £500,
the responsible person shall not be entitled to a funeral payment under these Regulations in respect of those expenses.(7) "
" Against this it is relevant to consider the nature and extent of the claimant's contact with her father, as exemplified by her pattern of visiting, cooking for him, and providing domestic help to him; and it might also be thought that her taking of responsibility for his funeral was also a matter of significance in indicating the quality and nature of her relationship with him as opposed to that of her brother who took no such responsibility ."
"Prima facie, the claimant is entitled to a funeral payment having satisfied the qualifications therefore. Para 3 of regulation 7 [of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (the equivalent of regulation 6(3) of the Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987)] has the effect of taking away that qualification in the circumstances therein set out and it seems to me, for that reason, that insofar as the burden of proof plays any part in the matter, marginally, it lies on the AO. However, in my view, as a general rule appeals should not be decided by reference to the burden of proof. Moreover, a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn."
Accordingly it seems to me that a claimant has to prove the basic qualifications by proving the circumstances that make him or her entitled, whilst the Department normally has to prove any exceptions such as those matters set out in regulation 6(3). However the last sentence of the quotation from Mr Commissioner Henty's decision gives a guide that a pragmatic approach must be taken by Tribunals.
" Reg 6(6)(b) prevents a claim succeeding if the evidence suggests the other brothers and sisters had equal contact with the deceased "
The Tribunal also stated in its reasons as follows:-
"On the basis that the contact between the brothers and sisters as close relatives of the deceased was equal the next question ".
"The claim would also be defeated by virtue of Reg 6(6)(a) if it was shown any of the deceased (sic) brothers or sisters had close contact. However regulation 6(6)(a) refers to "closer contact", not "close contact"".
However it seems to me that the Tribunal is stating that the claim would be defeated by any sibling with close contact. Therefore, as the claimant himself does not have close contact, in the circumstances "close contact" of any description would be "closer contact" which would disbar the claimant. Therefore, the Tribunal has found that no one had close contact (and by definition no one else can have closer contact than the claimant).
"The most that can be said is they had equal contact or an equal amount of lack of contact."
(Signed): J A H MARTIN QC
CHIEF COMMISSIONER
15 MAY 2001
APPENDIX 1 TO C1/00 01(SF)