Kerr v Department for Social Development

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date06 May 2004
Neutral Citation[2004] UKHL 23
Date06 May 2004

[2004] UKHL 23


The Appellate Committee comprised:

Lord Steyn

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Kerr (AP)
Department for Social Development
(Appellants)(Northern Ireland)

My Lords,


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.


My Lords,


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.

The system


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.

"Close contact"


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.

The inquiry


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...

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