Kerr (AP) (Respondent) v. Department for Social Development (Appellants) (Northern Ireland)
31. As to a purposive construction, the purpose of the disqualifying provisions of sub-paragraphs (a), (b) and (c) is to bar a responsible person from claiming a funeral payment where there is some other person equally closely related to the deceased and whom, on comparing their income and capital and taking into account the nature and extent of the other person's contact with the deceased, it would be reasonable to have expected to meet the funeral expenses (see paragraph 43 of Lady Hale's opinion which I would respectfully adopt). But none of the claimant's siblings had had contact with the deceased of a nature and extent that made it reasonable to expect them to meet the deceased's funeral expenses. The comparisons directed by sub-paragraphs (b) and (c) are based on the assumption that the responsible person was in close contact with the deceased. No doubt in the vast majority of cases that would be a correct assumption. In the present case, however, it is an incorrect assumption. The claimant accepted responsibility for his brother's funeral expenses not because he was in close contact with his brotherhe was not in contact with him at allbut because he was the eldest sibling, they had grown up together and he felt a sense of responsibility accordingly. And that was the basis on which the tribunal concluded that it had been reasonable for him to accept responsibility. In a case like the present the comparison directed by sub-paragraph (b) not only cannot be drawn on a literal construction but has no statutory purpose to serve.
32. In my opinion, there are two preliminary questions to be asked in relation to each of the three sub-paragraphs of regulation 6(6). The first is whether the deceased and the responsible person were "in close contact" with one another. The second is whether the deceased and the relevant close relative were "in close contact" with one another. The concept of one person being "in close contact" with another person is a familiar one. It directs attention to a current state of affairs. Everyone must, from time to time, have been asked the question "Are you in close contact with [X]"? The question is not usually a difficult one to answer although the answer may sometimes be equivocal, eg "No. We simply exchange Christmas cards", or "No but I usually see him at family funerals". Answers of this sort evidence a degree of contact but nothing that could be described as "close contact".
33. If the answers to these preliminary questions are that neither the responsible person nor the other close relative was "in close contact" with the deceased, or if the answers are that the responsible person was "in close contact" with the deceased but the close relative was not, then, in either case, no further question needs to be asked. None of the sub-paragraphs would be applicable.
34. If the answers to the questions are that the close relative was in close contact with the deceased but the responsible person was not, then sub-paragraph (a) would be applicable. The requirement that the close relative "was in closer contact with the deceased than the responsible person" would be satisfied. But if the close relative was not "in close contact" with the deceased, there seems to me to be no ground for expecting him to meet the funeral expenses for which the responsible person had made himself liable. The case would not, in my opinion, fall within the statutory purpose of sub-paragraph (a).
35. If the answers to the two preliminary questions are that both the responsible person and the close relative were "in close contact" with the deceased then sub-paragraph (a) or sub-paragraphs (b) and (c) might be applicable. Whether (b) and (c) were applicable would depend on whether the responsible person and the close relative were "in equally close contact" with the deceased. This would be a question of fact and degree to be answered by keeping in mind the statutory purpose of the sub-paragraphs, namely, to ascertain whether there was a close relative whom it would be reasonable to expect to meet the deceased's funeral expenses. If the answers to the preliminary questions were that neither the responsible person nor the close relative was in "close contact" with the deceased, or, a fortiori, if neither was in contact with the deceased at all, then the sub-paragraphs would have no part to play. I emphasise that the question is not whether they had had close contact with the deceased in the past. The question is whether they were "in equally close contact" with him at the time of his death.
36. In the present case, on the facts as found by the tribunal and not now in dispute, the claimant was not, and had not been for 20 years, in contact with the deceased. Their past boyhood and adolescent contact could not possibly justify their being described in 1999 as being in "close contact". None of the other siblings' contact with the deceased was any closer. Their lack of any close contact was equal. None was in contact with the deceased at all. That being so sub-paragraphs (b) and (c), as well as sub-paragraph (a), were in my opinion inapplicable. I would, for this reason too, in addition to the reasons given by Lady Hale with which I am in full agreement, dismiss this appeal.LORD RODGER OF EARLSFERRY
37. I have had the privilege of considering the speech to be delivered by my noble and learned friend, Baroness Hale, in draft. I agree with it and, for the reasons she gives, I too would dismiss the appeal.BARONESS HALE OF RICHMOND
38. Thomas Kerr, a disabled man of 61, living on benefits, has paid the funeral expenses of his younger brother Hugh. He also has another younger brother, Billy, and a younger sister, Jean. None of them have been in touch with one another, or with the deceased, for 20 years. Is Thomas entitled to a funeral payment under section 134(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (the 'Benefits Act')? Although a Northern Ireland case, equivalent legislation applies throughout the United Kingdom.
39. We all have an interest in securing the decent burial of a dead body. It is disrespectful, as well as a hazard to public health, if this is not done in a prompt and seemly manner. Hence there is a common law obligation, "in the nature of a public duty", to arrange for this: see Rees v Hughes  KB 517, 523. The obligation rests primarily upon the executors of the deceased but may fall upon others, including any householder where the body lies. The expenses can always be recovered from the deceased's estate, if he has one.
40. Local authorities have long had a statutory duty to step in if no suitable arrangements are made. But the "fear and humiliation of a pauper's funeral" led to the development of private insurance schemes in the 19th century. Later, funeral expenses were included amongst the hazards covered by the post war national insurance scheme. But the value of the death grant declined in real terms until by 1982 it covered only about 10% of the cost of a simple funeral. It was decided, therefore, to replace it with a means tested grant from the new Social Fund established in 1987. In the words of Professor Anthony Ogus, in Annex D to the 14th Report of the Social Security Advisory Committee (2001), p 61, para 12: "The purpose of the scheme is to help those on income-related benefits and some tax credits who have good reason for taking responsibility for a funeral but who have insufficient funds to cover the costs."
41. Section 134(1)(a) of the Benefits Act permits the payment out of the Social Fund of the amounts prescribed to meet funeral expenses in the circumstances prescribed. Although the section is phrased permissively, the criteria prescribed in the regulations are phrased in terms of entitlement. The decision making process is also that for benefits to which claimants are entitled, rather than that for discretionary payments out of the Social Fund. The entitlement criteria have been refined several times, broadly with a view to ensuring that if a person receiving the relevant benefits has taken on responsibility for the funeral expenses, it was reasonable for him to do this and there was no more suitable family member who was not on benefit to do so. The regulations have become more and more complex. Not surprisingly, this has led to difficulties in establishing whether or not the person who has taken responsibility is indeed the most appropriate person. The issue in this case is how that should be done. Is it for the claimant to show that there is no more suitable family member or is it for the Department to show that there is? And what is to be done in a case where neither the claimant nor the Department knows?
The evolution of the present entitlement regulations
42. Under the original Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987 (SR 1987/150), reg 6(1), a funeral payment was made where four conditions were met: (a) the claimant or his partner was in receipt of a qualifying benefit, (b) the claimant or one of his family took responsibility for the costs of the funeral, (c) the funeral took place in the United Kingdom, and (d) the claim was made within the specified period (subject to regulation 7 which provided for certain deductions from the payment and regulations 8 and 9 which provided for the effect of capital). Not surprisingly, there was evidence that some families took care to ensure that responsibility for arranging the funeral was undertaken by someone in receipt of a qualifying benefit: awards rose from 37,000 in 1988/89 to 72,000 in 1993/94.
43. Hence in 1994, regulation 6(1)(b) was amended with a view to ensuring that the person who had accepted responsibility for the funeral costs was so closely connected with the deceased that it was reasonable for him, rather than a more closely connected family member, to do so: see the Social Fund (Maternity and Funeral Expenses) (General) (Amendment) Regulations (Northern Ireland) 1994 (SR 1994/68), SR 1994, No 6BN reg 3. The new regulation 6(1)(b) required that claimant had taken responsibility for the funeral costs and either (i) was the partner of the deceased, or (ii) where the claimant or his partner was a close relative it was reasonable for him to accept that responsibility and there was no other person who was equally or more closely related to the deceased whom, on comparing their income and capital and taking into account the nature and extent of the other person's contact with the deceased, it was reasonable to expect to meet the costs, or (iii) if neither applied, it was reasonable for the claimant to accept responsibility in view of the extent of his relationship with the deceased. This obviously involved a judgment about the nature and closeness of family relationships which Professor Ogus described as "intrusive, undignified and impracticable", 14th Report, Annex D, p 63, para 17.
44. Regulation 6 was further amended by the Social Security (Social Fund and Claims and Payments)(Miscellaneous Amendments) Regulations (Northern Ireland) 1997, (SR 1997/155) which refined this basic approach. Regulation 6 reads as follows:
(a) the claimant or his partner (in this Part referred to as "the responsible person"), at the date of the claim for a funeral payment has an award of income support, income-based jobseeker's allowance, working families' tax credit, disabled person's tax credit or housing benefit;
(b) the funeral takes place -
(ii) in any other case, in the United Kingdom or, providing the deceased was normally resident in Northern Ireland, in the Republic of Ireland,
and for the purposes of this sub-paragraph, "EEA State" means a State which is a contracting party to the Agreement on the European Economic Area (a) signed at Oporto on 2 May 1992 as adjusted by the Protocol signed at Brussels on 17 March 1993;
(c) the deceased was ordinarily resident in the United Kingdom at the date of his death;
(1A) This paragraph applies to a person who is -
(a) a worker for the purposes of Council Regulation (EEC), No.1612/68(a) or (EEC) No. 1251/70(b);
(b) a member of the family of a worker for the purposes of Council Regulation (EEC) No.1612/68;
(c) in the case of a worker who has died, a member of the family of that worker for the purposes of Council Regulation (EEC) No.1251/70; or
(d) a person with a right to reside in the United Kingdom pursuant to Council Directive No.68/360/EEC(c) or No. 73/148/EEC (d).
(2) For the purposes of paragraph (1)(e)(iii) and (iv), the deceased shall be treated as having had no partner where the deceased had a partner at the date of death and -
(a) no claim for funeral expenses is made by the partner in respect of the death of the deceased; and
(b) that partner dies before the date upon which the deceased's funeral takes place.
(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 -
(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;
(a) a person who has attained the age of 18 but not the age of 19 and who is attending a full-time course of advanced education as defined in regulation 61 of the Income Support Regulations or, as the case may be, a person aged 19 or over but under pensionable age who is attending a full-time course of study at an educational establishment; (b) a member of, and fully maintained by, a religious order; (c) being detained in a prison or young offender's centre 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 so detained; or (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 a case to which paragraph (1)(e) (iii) or (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) Except in a case where paragraph (7) applies, in a case where the deceased had one or more close relatives and the responsible person is a person to whom paragraph (1)(e)(iii) or (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 agreed under 60, £500,
the responsible person shall not be entitled to a funeral payment under these Regulations in respect of those expenses.
(7) Paragraph (6) shall not apply where the close relative who was in closer contact with the deceased than the responsible person or, as the case may be, was in equally close contact with the deceased -
(a) had not attained the age of 18 at the date of death; and
(b) was the only close relative (not being a person who had not attained the age of 18) to whom any of sub-paragraphs (a) to (c) of paragraph (6) applies."
45. Thus a distinction is drawn between an "immediate family member" and a "close relative". An immediate family member is defined in regulation 2(1) as "a parent, son or daughter". A close relative is defined as "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."
The history of the present claim
46. Hugh Kerr died on 19 July 1999 aged 58. His partner had died shortly before and Melville & Co, a local undertaker, had made the funeral arrangements. The police asked them to take Hugh's body away. From their records they found the name of the partner's daughter and she gave them Thomas Kerr's name as next of kin. Thomas Kerr, then aged 61, was the deceased's older brother. He was traced by the police and agreed to take on responsibility for the funeral. Melville & Co filled out the claim form for a funeral payment for him to sign. They correctly ticked the boxes showing that Thomas was in receipt of housing benefit (one of the passport benefits for a funeral payment) and was the brother of the deceased. They wrongly ticked the box showing that the deceased had no other surviving parents, sons or daughters. The funeral went ahead on 27 July 1999 and Thomas became liable for the expenses. Indeed, we were told that he has since paid them, albeit with great difficulty over a long period and with the help of a friend.
47. Having received the claim, the Social Security Agency discovered that, according to obituary notices in the "Belfast Telegraph", Hugh was also survived by his father, also Hugh, another brother Billy, and sisters Jean and Diane. On 4 August 1999 they asked Thomas for an explanation. He promptly replied, apologising and explaining that his father had been an in-patient in hospital since May 1999 and because of his condition had not been told of the death. "I being the eldest son had to make the funeral arrangements with Melville & Co." They had sent their representative to his home and he had explained that the rest of the family were estranged from Hugh because of his addiction to alcohol. They had not been in touch with one another for more than 20 years. He did not go to the funeral because of his disability.
48. The agency wrote again on 9 August 1999 asking whether any of the other siblings was on any of the relevant benefits. Again Thomas replied promptly saying that he did not know, because the family had been estranged for 20 years or more. Diane lived in Canada, Billy and Jean somewhere in the Belfast area, but apart from a Christmas card from Canada he had had no contact with them.
49. A file note on 16 August records the view that as Diane lived in Canada she could not be in receipt of qualifying benefits. Hence the claimant was not eligible for the payment. A decision was made to refuse the claim. The ground stated in the decision letter of 17 August was that it was unreasonable for the claimant to have taken responsibility for the funeral because there was an immediate family member who was not estranged from the deceased and was not awarded a qualifying benefit. This reason was not correct, because the only immediate family member was the father. His existence would have disentitled the claimant under regulation 6(3), were it not for regulation 6(4), which provides that the claimant is not disentitled under regulation 6(3) if the immediate family member is, among other things, a hospital in-patient.
50. However, some further inquiries were made, because the file records a telephone conversation on 2 September 1999 with the undertakers, who explained how they had learned of the claimant's existence, and a statement from the claimant on 8 September, explaining that Diane in Canada was a niece, not a sister. Hence the only relevant "close relatives" for the purpose of regulation 6(6) were brother Billy and sister Jean, who were living in the Belfast area. Nevertheless, the decision was not reviewed. Nor were any further inquiries made which might have enabled the department to discover whether or not Billy and Jean were on qualifying benefits.
51. Instead, the matter went on appeal. The social security appeal tribunal decided that it had been reasonable for the claimant to accept responsibility for the funeral: he was the eldest and while he had had no contact for 20 years or so they were brothers and had known each other growing up. However, the tribunal also decided that the other brother and sister had "equal contact or perhaps more accurately an equal amount of lack of contact" with the deceased. It was not known whether they were in receipt of a relevant benefit. The burden of proof lay on the claimant to establish this. So he failed. The tribunal recognised that this might cause hardship in a case such as this where the claimant knew nothing of his brother and sister's circumstances. This may be why the legal member of the tribunal granted leave to appeal to the social security commissioner. The commissioner, however, reached the same conclusion.
52. The Court of Appeal in Northern Ireland agreed that the brother and sister were "in equally close contact" with the deceased, but the majority reversed the decision on the ground that the burden of proof as to their benefits and capital status lay on the department. They relied on two principles of construction: first, "the orthodox principle . . . that exceptions etc, are to be set up by those who rely upon them"; and second, the principle that where a matter requiring proof is particularly within the knowledge of one party and it would be unduly onerous for the other to have to prove it, the burden lies on the former. Regulation 6(6) was an exception, and relevant facts were peculiarly within the knowledge of the department. McCollum LJ dissented. In his view the appellate process was inquisitorial not adversarial, but the claimant had to provide all the information necessary to enable the determination of his claim. This he had not done and so he should fail.
53. The department now appeals against the decision of the majority. The issue as originally stated was whether the regulation created a burden of proof and if so on whom and in what respects did it lie. The department's case was that the claimant had to prove all of the conditions, including those in regulation 6(6) which were there to prevent abuse. However, the department agrees that the administration of the benefits system is an inquisitorial rather than an adversarial process in which strict notions of the burden of proof may be inappropriate. Mr Declan Morgan QC, on its behalf, rephrased the issue as "whether, in respect of regulation 6(6), the conditions of entitlement are such that, in the absence of direct evidence or material from which inferences can be drawn that there is no other suitable responsible person, the claimant must fail." Thus, it was argued, these are still conditions of entitlement rather than exceptions, and the claimant must provide the material to establish them. Granting the benefit without this basic information would be open to abuse, more probably through inadvertence or lack of application - failing to take the trouble to find out the true position - rather than dishonesty; the department recognises that this is unlikely to deter people who are minded to exploit the benefits system in this way.
54. The primary submission of Mr Bernard McCloskey QC, on behalf of the respondent claimant, is that the majority of the Court of Appeal was right for the reasons they gave. His secondary submission is that the burden of proof has no function at all in the processing and determination of a claim for funeral expenses. The department has ample weapons in its armoury to discover the facts necessary to determine the claim. Some of those facts are peculiarly within its own knowledge. If, after all proper inquiries are made, there is no evidence that the disqualifying conditions in regulation 6(6) exist, then the claimant should succeed.
55. There are now, therefore, two issues:
(1) What sort of process is involved in the determination of a claim?