Ipsofactoj.com: International Cases  Part 5 Case 1 [HL]
HOUSE OF LORDS
Department for Social Development
- vs -
LORD HOPE OF CRAIGHEAD
LORD SCOTT OF FOSCOTE
LORD RODGER OF EARLSFERRY
BARONESS HALE OF RICHMOND
6 MAY 2004
I have read the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with it. I would also dismiss the appeal.
Lord Hope of Craighead
I have had the advantage of reading in draft the speech of my noble and learned friend Lady Hale of Richmond. I agree with it, and for all the reasons which she has given I too would dismiss the appeal.
As the appeal was brought to resolve issues about burden of proof on which the Court of Appeal in Northern Ireland were not unanimous and because I do not wholly agree with my noble and learned friend Lord Scott of Foscote's analysis of it, I should like to add a few brief observations of my own about the system which has given rise to this case and the inquiry that has to be undertaken to give effect to it.
Regulation 6 of the Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987, as amended, sets out in elaborate detail the circumstances in which a funeral payment may be made under section 134(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 ("the Benefits Act") to meet the funeral expenses for which the claimant or his partner has accepted responsibility. The system which applies in Northern Ireland is in all relevant respects the same as that which enables payments to be made under section 138(1)(a) of the Social Security Contributions and Benefits Act 1992 for funeral expenses in Great Britain. There are, in effect, a series of filters through which the claim must go before the payment may be made. This is because it is a means tested benefit. It is a pre-condition of payment that the claimant or his partner ("the responsible person") has at the date of the claim an award of one or more of the benefits mentioned in regulation 6(1)(a). That pre-condition has to be borne in mind as an essential part of the background. Once the responsible person has passed this test, he is within the class of persons who is entitled to benefit from the social fund.
If the responsible person was the partner of the deceased at the date of his death the position is quite straightforward: see regulation 6(1)(e)(i). There are no further filters that have to be gone through. That is the case, too, if the deceased was a child and the circumstances mentioned in regulation 6(1)(e)(ii) apply. The position is more complicated where the responsible person was either a parent, son or daughter (an "immediate family member"), a brother or sister or brother or sister-in-law (all included in the definition of the expression "close relative") or a close friend of the deceased: see the definitions of "immediate family member" and "close relative" in regulation 2(1). The scheme is designed to filter out claimants in these three categories whose cases were not thought to be appropriate for the receipt of a means tested funeral payment from the social fund.
The filters which are applied at this stage start with the rule which regulation 6(5) lays down for determining whether it is reasonable for an immediate family member, a close relative or a close friend to accept responsibility for meeting the expenses of a funeral. The question of reasonableness is to be determined by the nature and extent of that person's contact with the deceased. I agree with Lord Scott that it is not said to be essential that the person's contact with the deceased be "close" contact or that it be a recent contact. If the reasonableness test is satisfied, the application of the next filter which is set out in regulation 6(6) involves comparing the nature and extent of the "contact" which the responsible person had with the deceased with the nature and extent of the "contact" of any other close relative. The word that is used to indicate the purpose of making this comparison is the word "close". The assumption appears to be that, so long as there was some contact at some stage, however slight, a comparison can be made of the closeness of that contact. If the responsible person has the closest contact, no further filters are applied.
But a close relative who was in closer contact with the deceased defeats the responsible person's claim. And the responsible person's claim is defeated on financial grounds if neither the close relative with equally close contact or his partner has been awarded a relevant benefit or (assuming that they have such an award, otherwise they would have defeated the responsible person's claim on the first of these two alternatives) if they possess more capital than the responsible person and his partner and that capital exceeds the prescribed amount. The details are set out in regulation 6(6). No time limit is set for an examination of the issue of close contact.
As I have already noted, the assumption, which appears to be inherent in the definition of the expression "close relative" in regulation 2(1), is that a close relative must have had "contact" with the deceased of some kind at some time, however slight, even if that was many years ago and that it is possible to examine the question how "close" it was. That, after all, is what "contact" involves - the state or condition of touching, as the Shorter Oxford English Dictionary defines it. The word "was" is used in regulation 6(6), without any qualification as to how recent or how distant in time the contact was before the deceased died.
I regret therefore that I must part company with Lord Scott at this stage. He says that the concept of one person being "in close contact" with another person directs attention to a current state of affairs. I respectfully agree with this proposition. But I do not think that it follows that the state of affairs during which there was contact must have existed at the time of the deceased's death. Regulation 6(6) assumes that where there is "contact" the question of "closeness" is put in issue, however slight or remote in time that may be. I do not find anything in the regulation to indicate that the contact must have been current at, or immediately before, the date of the deceased's death. The period of time during which a comparison of the nature and extent of the contact is to be undertaken is not specified. The conclusion which I would draw from this is that there is no restriction as to the time of this contact. In my opinion the first question which the adjudicator must ask himself is whether the relevant person had any "contact" with the deceased at all at any time. If he did, the question of the relative "closeness" of that contact in comparison with the contact of the responsible person can and must be asked and answered.
The social fund is maintained under the control and management of the Department, and payments out of it are made by the Department: section 146(2) of the Social Security Administration (Northern Ireland) Act 1992 ("the Administration Act"). It is in two parts: a regulation-based part, to which section 134(1)(a) of the Benefits Act refers, and a discretionary part from which payments to meet other needs may be made under section 134(1)(b). A claim must be made to obtain a benefit out of the regulation-based part, and it requires investigation to determine whether or not the claimant is entitled to that benefit. The broad aim of the system for funeral payments is to enable a claimant to obtain this benefit out of the regulation-based part of the social fund under section 134(1)(a) of the Benefits Act, provided he makes his claim in the time and in the manner prescribed in the regulations: see section 1(1) of the Administration Act. The Department must ensure that there is no misuse of public funds. But the procedures should not be allowed to stand in the way of payment of the benefit to the claimant if he is entitled to it.
It is obvious that the filters that I have described raise issues of fact on which a decision will have to be taken. They give rise to questions which the claimant may not be in a position to answer without help from the department. That is most likely to be so where the issue is whether a close relative who was in equally close contact has been awarded a relevant benefit or, if he has such an award, he has more capital than the claimant which exceeds the prescribed amount. The department accepts that it may use its own records for this purpose: section 3 of the Social Security Act 1998, which extends to Northern Ireland: see section 87(4)(b). But it will need to be provided with sufficient information to enable it to trace and identify the close relative or his partner, if he has one. The full name and date of birth will be sufficient for that person's national insurance number to be identified, and the claimant can normally be expected to be in a position to supply this information.
On the other hand an assessment of the closeness of contact is likely to depend entirely on the information which the claimant supplies to the department. He will have an opportunity of supplying that information in response to the questions that are set out in Part 4 of the application form. But he may needed to be guided if the information which he gives falls short of what is needed for the assessment. Further questions may be put to him by the department in the exercise of its power under regulation 7 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 before the claim is submitted to an adjudication officer under section 18 of the Administration Act. The adjudicator too can put questions to him before the claim is adjudicated.
The position may however be reached when, despite best endeavours on both sides, the information which is needed to resolve the issues bearing on the question of entitlement is not available. The claimant may not be able to give enough information to the department to enable it to provide the missing details by searching its own records. The regulations say nothing about where the onus of proof lies. The situation may be contrasted with that which arose in Irving v Minister of Pensions 1945 SC 31, where the Court of Session was dealing with appeals against decisions of Pensions Appeal Tribunals relating to claims for pensions in respect of death or disablement by war injuries. Article 4(1) of the Royal Warrant concerning Retired Pay, Pensions, etc dated December 1943 (Cmd 6489) provided that in no case was there to be an onus on any claimant to prove that the disablement or death of a member of the military forces was attributable to or aggravated by war service and that the benefit of any reasonable doubt should be given to the claimant. At p 29 Lord Justice Clerk Cooper said:
In every issue of disputed facts between two parties, the onus of proof must inevitably be either on the one hand or the other, and the result of the provisions I have quoted is that the onus of proof is on the Minister.
But it can at least be said that a claimant under section 134(1)(a) of the Benefits Act is not in the same position as a litigant. His position is similar to that described by Diplock J in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble  2 QB 228, 240. The claim to benefit in that case was a claim to receive money out of insurance funds fed by contributions from all employers, insured persons and the Exchequer. The procedure for determining whether the claimant is entitled to a disability benefit was said to be more like an inquest than an action. The social fund with which we are concerned in this case is, of course, non-contributory. It is maintained out of funds paid into it by the department. The claimant does not have the same rights as an insured person. Nevertheless the position of the department is not to be regarded as adverse to that of the claimant. In this case too the process is inquisitorial, not adversarial.
In this situation there is no formal burden of proof on either side. The process is essentially a fact-gathering exercise, conducted largely if not entirely on paper, to which both the claimant and the department must contribute. The claimant must answer such questions as the department may choose to put to him honestly and to the best of his ability. The department must then make such inquiries as it can to supplement the information which the claimant has given to it. The matter is then in the hands of the adjudicator. All being well, the issue of entitlement will be resolved without difficulty.
But there some basic principles which made be used to guide the decision where the information falls short of what is needed for a clear decision to be made one way or the other:
Facts which may reasonably be supposed to be within the claimant's own knowledge are for the claimant to supply at each stage in the inquiry.
But the claimant must be given a reasonable opportunity to supply them. Knowledge as to the information that is needed to deal with his claim lies with the department, not with him.
So it is for the department to ask the relevant questions. The claimant is not to be faulted if the relevant questions to show whether or not the claim is excluded by the Regulations were not asked.
The general rule is that it is for the party who alleges an affirmative to make good his allegation. It is also a general rule that he who desires to take advantage of an exception must bring himself within the provisions of the exception. As Lord Wilberforce observed, exceptions are to be set up by those who rely on them: Nimmo v Alexander Cowan & Sons Ltd  AC 107, 130.
If therefore the claimant and the department have both done all that could reasonably have been expected of them, the issue of fact must be decided according to whether it was for the claimant to assert it or for the department to bring the case within an exception. For this purpose regulation 6 divides itself into two parts. The facts referred to in paragraphs (1) and (2), read with paragraph (5), are for the claimant to assert. The facts referred to in paragraph (3), read with paragraph (4), and paragraph (6), read with paragraph (7), are in the nature of exceptions - the phrase "shall not be entitled" is used in paragraphs (3) and (6) - which must be set up by the department.
The facts of this case, as Lady Hale has explained, show that the claimant cannot be blamed for the lack of information in the handling of his claim. His claim was refused because the department misunderstood the facts disclosed by an incorrect entry in the "Belfast Telegraph". When the error was discovered, it was for the department to ask the questions that needed to be answered if they were to discover the financial circumstances of the claimant's equally close relatives. But the questions were not asked, so the claimant never had an opportunity of answering them.
We do not know whether the claimant would have been able to give the information that would have been needed by the adjudicator to resolve this issue. But it was not suggested that the case should be remitted to the adjudicator for further inquiries to be made. In these circumstances I agree that the funeral benefit claimed should be paid.
Lord Scott of Foscote
I have had the advantage of reading in advance the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with it and with the reasons she has given for dismissing the appeal. I would, however, dismiss the appeal also for the additional reason referred to briefly by my noble and learned friend in paragraph 70 of her opinion. In short, the facts of the case do not, in my opinion, justify the conclusion that there was any "close relative" of the deceased who was "in equally close contact with the deceased".
The facts of the case have been fully set out by my noble and learned friend and I need not repeat them save as may be necessary to make my opinion on the "equally close contact" point intelligible. The claimant, Mr. Kerr, was the eldest of a family of five siblings. The deceased, Hugh Kerr, was a younger brother of the claimant. The siblings who survived Hugh were the claimant, another brother, Billy, and a sister. There was also a niece who lived in Canada. Theirs was the reverse of a united family. The five siblings had had no contact with one another for over 20 years before the death of Hugh on 19 July 1999. After Hugh's death the police requested local undertakers to take away the body from the house where it had been found. They, the police, traced the daughter of Hugh Kerr's deceased partner. She gave them the name of the claimant who, on being contacted by the police, accepted responsibility for his brother's funeral. The undertakers made the arrangements accordingly and, having duly buried the deceased, submitted their bill to the claimant. The claimant, a man of very limited means and in receipt of benefit, managed to pay off the bill by instalments over a period of years. As my noble and learned friend has explained, the question for the House is whether he is entitled to reimbursement by means of a funeral payment under section 134(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
The relevant provisions of the 1992 Act and of the Regulations made thereunder have been fully set out by my noble and learned friend. Entitlement to a "funeral payment" is dealt with in regulation 6 of the 1987 Regulations, as amended (see para 44 of Lady Hale's opinion). The first requirement is that the claimant (referred to as "the responsible person") is in receipt of a qualifying benefit. The claimant in the present case satisfies this requirement. He was in receipt of a qualifying benefit. The next requirement relevant to the case is that the claimant be a close relative of the deceased and that "it is reasonable for the responsible person to accept responsibility for [the funeral] expenses" (Regulation 6(1)(e)(iv)). A brother is a "close relative", as defined, and it was held by the social security appeal tribunal that "it was not unreasonable for the claimant to have accepted responsibility". They explained:
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.
My Lords, the basis on which the tribunal accepted that it had been reasonable for the claimant to accept responsibility for the expenses of his younger brother's funeral was not that they were in close contact with one another. They had been estranged for over 20 years. But they were brothers, they had grown up together and the claimant was the eldest of the siblings. That was the basis on which the tribunal came to the conclusion that it was reasonable for the claimant to have accepted responsibility. The conclusion has not been challenged on appeal, but in any event it was, in my opinion, a proper conclusion for the tribunal to have reached for the reasons they gave. It is of some relevance that paragraph (5) of regulation 6 says that the question whether it is reasonable for a claimant to have accepted responsibility for meeting the expenses of a funeral "shall be determined by the nature and extent of that person's contact with the deceased". It is not expressed to be essential that the contact be a "close" contact or a recent contact.
Paragraph (6) of regulation 6 is a disqualification provision. A claimant for a funeral payment who succeeds in meeting all the other requirements of regulation 6 will, nonetheless, be disqualified if the case falls within paragraph (6). The paragraph provides that:
.... 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-
the responsible person shall not be entitled to a funeral payment under these Regulations ....
The first two conditions of paragraph (6) are satisfied. The deceased did have one or more close relatives, namely his brother Billy and his sister, as well as the claimant. And the claimant, the responsible person, was a person to whom paragraph (1)(e)(iv) applied. That being so paragraph 6 directs a comparison to be made of the nature and extent of the contact with the deceased of each of these "close relatives" with the nature and extent of the claimant's contact with the deceased. The purpose of the comparison is to ascertain whether the case comes within one or other of the three sub-paragraphs. None of the other siblings was "in closer contact with the deceased" than the claimant. So sub-paragraph (a) did not apply. But were any of the siblings "in equally close contact with the deceased .... "? If so, sub-paragraphs (b) and (c) would be potentially applicable. Argument in this case has concentrated on sub-paragraph (b), not sub-paragraph (c), and I shall do likewise.
The appeal tribunal held that sub-paragraph (b) was applicable. Their reasoning was expressed as follows:
.... Regulation 6(6) 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 that 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 ....
In this passage the tribunal have re-written the statutory language. The question asked by sub-paragraph (b) (and by sub-paragraph (c)) is whether the close relative and the claimant were "in equally close contact". The tribunal re-formulated the question so that it became a question whether the close relative and the claimant had "equal contact". This re-formulated question is not the statutory question. The significance of the adjective "close" is ignored. So is the significance of the preposition "in".
The social security commissioner, on appeal, upheld the decision of the tribunal. On the point at issue in relation to sub-paragraph (b), having cited the relevant passage from the tribunal's decision, the commissioner said this:
I conclude that the tribunal decided that no one had 'closer contact' than the claimant but the other siblings were in 'equally close contact' or had 'an equal amount of contact', which constitutes, in the particular circumstances of this case, a finding of 'equally close contact'.
It is understandable that the tribunal did not describe any of the relationships as close but this merely reflects the appropriate approach in the context of the evidence in this case. It does not appear to be an error of law.
So the commissioner held explicitly what the tribunal had held implicitly, namely, that the statutory requirement of being "in equally close contact" simply meant having had "equal contact".
In the Court of Appeal, Carswell LCJ (as he then was) expressed his agreement with the proposition that "an equal amount of lack of close contact can constitute equally close contact within the meaning of regulation 6(6)" (p 8 of his judgment).
My Lords, I must respectfully dissent from this construction of sub-paragraph (b). In my opinion, both a literal construction and a purposive construction are inconsistent with it. As to a literal construction, some meaning must be attributed to the adjective "close". Underlying the question whether A's contact with X was an "equally close contact" when compared with B's contact with X is the assumption that B's contact with X was a close one. If B's contact with X was not a close one, the question cannot be asked, or, if asked, cannot be answered. The premise of the question is simply absent. The comparison contemplated by sub-paragraph (b) (or by sub-paragraph (c)) cannot be made. And the concept of being "in close contact" with someone is not the same as the concept of having had close contact with that person. They are two quite different things.
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 brother — he was not in contact with him at all — but 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.
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, e.g. "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".
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.
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).
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.
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
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
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.
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.
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."
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?
EVOLUTION OF THE PRESENT ENTITLEMENT REGULATIONS
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:
the claimant or his partner was in receipt of a qualifying benefit,
the claimant or one of his family took responsibility for the costs of the funeral,
the funeral took place in the United Kingdom, and
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.
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
was the partner of the deceased, or
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
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.
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:
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."
HISTORY OF THE PRESENT CLAIM
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.
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.
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.
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.
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.
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.
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.
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.
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.
There are now, therefore, two issues:
What sort of process is involved in the determination of a claim?
What happens if, at the end of the process, relevant facts are simply not known?
NATURE OF THE PROCESS
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.
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).
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.
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.
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).
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:
A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds .... Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action.
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.
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.
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.
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.
CONSEQUENCES OF IGNORANCE
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.
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.
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.
This, therefore, is a case in which the department should bear the burden of the collective ignorance and pay the claim.
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.
I would therefore dismiss this appeal.
Irving v Minister of Pensions 1945 SC 31; R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble  2 QB 228; Nimmo v Alexander Cowan & Sons Ltd  AC 107; Rees v Hughes  KB 517; R v Secretary of State for Social Services, Ex p Child Poverty Action Group  2 QB 540; R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble  2 QB 228
Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987: reg.6
Social Security Contributions and Benefits (Northern Ireland) Act 1992: s.134(1)(a)
Social Security Act 1998: s.3, s.87(4)(b)
Social Fund (Maternity and Funeral Expenses) (General) (Amendment) Regulations (Northern Ireland) 1994 (SR 1994/68), SR 1994, No 6BN: reg.3
Social Security (Social Fund and Claims and Payments) (Miscellaneous Amendments) Regulations (Northern Ireland) 1997, (SR 1997/155)
Authors and other references
Shorter Oxford English Dictionary
Professor Anthony Ogus, 14th Report of the Social Security Advisory Committee (2001), Annex D
Declan Morgan QC for appellant.
Bernard McCloskey QC for respondent.
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