Kerr (AP) (Respondent) v. Department for Social Development (Appellants) (Northern Ireland)
(2) What happens if, at the end of the process, relevant facts are simply not known?
The nature of the process
56. The benefits system is necessarily enormously complex. This was true even in the early days, when it was mainly based on flat rate contributory benefits, and means tested benefits were seen as a safety net but not the norm. It has become even more so with increasing attempts to target benefits upon the most needy. The history of funeral payments sketched above is a good illustration of this trend. The general public cannot be expected to understand these complexities. Claimants should not be denied their entitlements simply because they do not understand them. It has been a consistent objective of social security administration over the years to devise user-friendly forms and procedures to enable the benefits agencies to discover whether or not a claimant is entitled to benefit.
57. The claimant must generally start the ball rolling with a claim form. The general rule is that no-one is entitled to benefit unless he has made a claim in the prescribed manner: Social Security Administration (Northern Ireland) Act 1992 (the "SSA(NI)A"), section 1(1). Regulations may provide for the manner in which claims are made: section 5(1)(a). The regulations provide that claims must be made in writing either on the approved form or in some other written form which the department may accept: Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (SR 1987/465) regulation 4(1). Great efforts have been made to devise claim forms which, although lengthy, are clearly set out in plain language and designed to elicit all the basic information the department needs to discover whether or not the claimant is entitled to the benefit in question. Errors and omissions on his part are not fatal. If a claim is defective it can be referred back to the claimant: regulation 4(7). It can also be amended at any time up to the determination: regulation 5(1). Regulations may also provide for requiring any information or evidence needed for the determination of the claim or any question arising in connection with the claim to be furnished by such person as may be prescribed in the regulations: SSA(NI)A 1992, section 5(1)(h). The 1987 Regulations provide that every claimant has a duty to furnish such certificates, documents, information and evidence as may be required of him: regulation 7(1). In certain circumstances, the claimant's partner or employer has a similar duty: regulation 7(2) and (3). Claimants must also attend in person for this purpose if reasonably required to do so: regulation 8(2).
58. Clearly, therefore, the system places the burden upon the department of asking the right questions and upon the claimant of answering them as best he can. There is no express sanction for failure to comply with regulations 7 or 8, but regulations could provide for this to be a criminal offence were it to become a problem: SSA(NI)A 1992, section 107. If it later turns out that benefit has been paid which should not have been paid because of a misrepresentation or failure to disclose a material fact, whether innocent or fraudulent, the benefit may be recovered: SSA(NI)A 1992, section 69(1). Making a statement or representation which is known to be false, or producing any document or information which is known to be false, is a criminal offence: SSA(NI)A 1992, section 106.
59. Once the department has the information it requires, then under the process which was in force at the time of this claim, the claim is passed to an adjudication officer for determination: SSA(NI)A 1992, section 18(1) and (6)(e). There was no express provision for the adjudication officer to make further inquiries, but it is common ground that he could do so: see R v Secretary of State for Social Services, Ex p Child Poverty Action Group  2 QB 540, and commissioner's decision R(IS)4/93, paragraph 13. This is supported by the Social Security (Adjudication) Regulations (Northern Ireland) 1995 (SR 1995/293) (the "Adjudication Regulations"), regulation 2(1)(a), which provides that the procedure in connection with the consideration and determination of any claim or question shall be such as the department or the adjudicating authority shall determine.
60. The claimant can appeal from the adjudicator's decision to a social security appeal tribunal: SSA(NI)A 1992, section 20(1)(b). The tribunal chairman may either of his own motion or on application "give directions for the just, effective and efficient conduct of the proceedings and may direct any party to provide such further particulars or to produce such documents as may reasonably be required": Adjudication Regulations, regulation 2(1)(aa).
61. Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble  2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:
62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "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." The same should apply to information which the department can reasonably be expected to discover for itself.
64. That is the position on the facts of this case. It is not suggested that the claimant was in any way to blame for the way in which the undertakers had filled in the form for him. There is clearly a risk that undertakers who are anxious to be assured of their fees will not fill the forms in as diligently as they should. They run the same risk of entitlement not being shown as the claimant does in such circumstances. However, once the omission of his father, brother and sister was pointed out to the claimant, he gave the department all the information he had about them. This was sufficient to rule out the father as a more suitable person. It was not sufficient to enable the department to determine whether or not the brother or sister was more suitable. Assuming (for the sake of this argument) that all the siblings did have "equally close contact" with their brother Hugh for the purpose of regulation 6(6)(b) and (c), it was not known whether either of them was more suitable, either because they were not receiving any of the qualifying benefits or because even if they were receiving such benefits, they had capital above the prescribed limit.
65. But the department freely acknowledges that such information is available to it. All it needs is a name and a date of birth, from which it can trace the National Insurance number, which in turn should enable it to discover whether benefits are being paid. In many cases, if there is a claim, the department can also discover whether or not the claimant has capital. Section 3(1) and (2) of the Social Security Act 1998 makes it clear that the relevant departments are able to use the information relating to social security which they hold for any purposes connected with their functions in relation to social security. Yet the department never asked the claimant for this information. Indeed, the section of the claim form asking for details of other relatives does not ask for dates of birth (perhaps it will do so as a result of this case). Nor did the department seek this information from the claimant despite making further inquiries of him which revealed that it should have been asked. In those circumstances, the department cannot use its own failure to ask questions which would have led it to the right answer to defeat the claim.
The consequences of ignorance
66. This will not always be sufficient to decide who should bear the consequences of the collective ignorance of a matter which is material to the claim. It may be that everything which could have been done has been done but there are still things unknown. The conditions of entitlement must be met before the claim can be paid: SSA(NI)A, section 1(1). It may therefore become relevant to ask whether a particular matter relates to the conditions of entitlement or to an exception to those conditions. In this case, the department argues that all the elements, including those in regulation 6(6), are conditions of entitlement, so that the claimant must bear the consequences of ignorance. The claimant argues that the conditions of entitlement are laid down in regulation 6(1), supplemented where relevant by paragraphs (2) and (5). Paragraphs (3) and (4), which go together, and paragraph (6) are exceptions.
67. The structure and wording of the regulation support the claimant's case. Conditions (a), (b), (c) and (d) in regulation 6(1) are clearly established. The claimant qualifies as a "close relative" under condition (e)(iv)(aa) but this also requires that it be reasonable for him to accept responsibility. Under regulation 6(5) the question "whether it is reasonable for a person to accept responsibility for meeting the expenses of the funeral shall be determined by the nature and extent of that person's contact with the deceased". The tribunal decided that it was reasonable for the claimant, as the eldest son who had grown up with his brother, to accept that responsibility, despite the fact that they had not been in contact with one another for many years. That conclusion is not challenged in this appeal, in my view rightly. For the reasons given earlier, there is a strong public interest in encouraging families to take responsibility for the speedy and seemly burial of their deceased relatives.
68. Regulation 6(3) provides that the person who has made himself responsible "shall not be entitled" if there is a more appropriate immediate family member. That this is a disentitling provision is made clear by regulation 6(4), which states that "Paragraph (3) shall not apply to disentitle the responsible person" (my emphasis) in the circumstances there set out. In the same way, paragraph 6(6) provides that if there is a close relative who is either in closer contact or in equally close contact and not receiving benefits or having capital, the responsible person "shall not be entitled" to the payment. These paragraphs are therefore worded in terms of exceptions rather than qualifying conditions. If anything, this interpretation is supported by the legislative history given earlier, as the existence of a more suitable relative was added as an exception or qualification to the basic rule.
69. This, therefore, is a case in which the department should bear the burden of the collective ignorance and pay the claim.
70. A curious feature of the present case is that the disqualifying conditions in regulation 6(6)(b) or (c) depend upon the claimant and any other close relative being "in equally close contact with the deceased" when in reality none of them was in contact with him at all. How can a lack of contact be described as "close"? This wording is different from that in regulation 6(5), which simply refers to the "nature and extent" of the claimant's contact with the deceased. This might well include contact which was long ago. It is harder to see how "was . . . in equally close contact" can cover contact which ended 20 years earlier. However, I would prefer to express no view on this issue, which arose during the hearing before us, as in my view there are two good reasons to uphold the decision of the Court of Appeal although not precisely the same as theirs.