RM CIS 2147 2007
| Jurisdiction | UK Non-devolved |
| Judge | Judge H. Levenson |
| Judgment Date | 01 July 2010 |
| Neutral Citation | 2010 UKUT 220 AAC |
| Subject Matter | Human rights law |
| Respondent | Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 2147 2007 |
| Appellant | RM |
[2011] AACR 8
(RM v Secretary of State for Work and Pensions (IS) [2010] UKUT 220 (AAC)
Judge Levenson CIS/2147/2007
1 July 2010
Human rights – funeral payment – whether statutory scheme discriminatory contrary to Article 14 of the Convention in case of Jewish funeral
The claimant, who was a solicitor, was an executor of the will of the deceased and took responsibility for the funeral arrangements. The deceased was Jewish but at the time of his death was not a member of a synagogue or burial society. At the time of death it was not clear whether the estate had sufficient funds to pay for a funeral, but Jewish law required a prompt burial and the local synagogue authorities agreed that he would be buried in their cemetery according to orthodox Jewish practice. In the event the estate was insolvent. The claimant made a late claim for a funeral payment under section 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005. The Secretary of State refused the payment. The claimant appealed. The tribunal found that he was the responsible person and that it was reasonable for him to accept responsibility for the funeral expenses but dismissed the appeal because he was not in receipt of one of the means-tested benefit listed in regulation 4. The claimant appealed further. Before the Upper Tribunal it was common ground that, subject to arguments about irrationality and human rights law, the claimant could not be entitled to the payment as the domestic legislation and regulations stood. His contention was that the funeral payments scheme as made under sections 138(1) and 175 of the Social Security Contributions and Benefits Act was irrational because it had not provided for a personal representative to be eligible for a payment in the case of an insolvent estate or allowed for an appropriate exemption from the qualifying benefit requirement or that there had been a breach of Article 14 when read with Article 9 because the scheme had a disproportionately prejudicial effect on a particular group defined by religion.
Held, dismissing the appeal, that:
- the funeral payments scheme is provided under the authority of social security legislation to help alleviate financial hardship in relevant cases and is a rational workable scheme, made within the authority of the legislation, albeit with limitations and exclusions, which may be frustrating but that comes nowhere near affecting the validity of the regulations (paragraphs 54 and 55);
- the operation of the scheme engaged Article 8 (the right to respect for private and family life) (Esfandiari and Others v Secretary of State for Work and Pensions [2006] EWCA Civ 282, reported as R(IS) 11/06) and Article 9 (the freedom to manifest religion or belief) but did not breach either Article (paragraphs 61 and 63);
- there was no direct discrimination as the statutory scheme applied to people of all religions and no religion alike and there was nothing in the scheme that prevented the burial of the deceased in accordance with his religious views (paragraph 66 to 68);
- it was clear that in relation to entitlement to a payment from the social fund for funeral expenses, the claimant was treated differently from the way in which a person who was entitled to one of the qualifying benefits would have been treated but there is only discrimination for the purposes of Article 14 if the difference in treatment does not pursue a legitimate aim or is disproportionate to the aim pursued (paragraphs 69 to 71);
relative wealth is not one of the “suspect” grounds listed by Lord Hoffman in paragraph 15 of R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 and in the present case the difference in treatment was not demeaning to the claimant and did not deprive him of entitlement to equal respect, but it did require rational justification, and that consisted in the policy of the State to focus financial assistance on those of more limited means, which policy had been implemented in a proportionate manner (paragraph 72).
DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) Hearing and decision
1. On 3 November 2008 this matter was transferred to the Upper Tribunal.
2. This appeal by the claimant does not succeed. I confirm the decision of the appeal tribunal made on 26 March 2007 under reference 068/07/00045. This is that, in respect of the funeral expenses incurred after the death of the deceased, the claimant is not entitled to a payment from the social fund.
3. I held an oral hearing of this appeal on 14 May 2009. The claimant, who is a solicitor, attended in person and was represented by Desmond Rutledge of counsel. The Secretary of State was represented by Ms Deok-Joo Rhee of counsel, instructed by the Solicitor, Department for Work and Pensions. I am grateful to all of them for their assistance. 4. I am aware of the delay in producing this decision but it is right to point out that following that hearing further written submissions were not received until 24 September 2009 and that some of those submissions went administratively astray and were only seen by me on 5 February 2010. Meanwhile, on 27 January 2010 Upper Tribunal Judge Williams had decided Secretary of State for Work and Pensions v FS [2010] UKUT 18 (AAC) concerning discrimination in relation to the denial of funeral expenses to a convicted prisoner. Then on 10 February 2010 the Court of Appeal decided the case of Ghai and Others v Newcastle City Council [2010] EWCA Civ 59 allowing an appeal from the decision by Mr Justice Cranston in the Administrative Court at [2009] EWHC 978 (Admin), to which the parties had referred in the hearing. On 12 February 2010 I invited further submissions on matters arising from these decisions. This resulted in a further 90 pages being added to the file, which now numbers 405 pages. Final submissions were received on 27 April 2010 and the file was returned to me on 14 May 2010. Background and procedure
5. In the case of a funeral expenses payment from the social fund (to which I refer below as “the statutory scheme”), a claim is not made until after the death of the deceased and is not made on behalf of the deceased or by or on behalf of his or her estate (indeed, the estate itself is not a legal person or party: R(IS) 6/01, followed by me in CIS/3735/2006) but by the person who has accepted responsibility for payment of the funeral expenses. This person might or might not also be a personal representative, or responsible for administering the assets of the estate, but the claim is not made in that capacity. The claim is made in the capacity of a person who has accepted responsibility for the payment. If there is no such person, there is no provision for any claim to be made. Thus, although the application to the Social Security Commissioner was initially registered in the name of the deceased, when granting leave to appeal on 16 July 2007 (as a Social Security Commissioner), I directed that the file be amended to show the claimant as the proper appellant.
6. Mr Rutledge has suggested that when the claimant appealed to the Commissioner it was in the role of a personal representative, but this cannot be correct. It was in his personal capacity that he had made the claim in respect of which the tribunal decision had been taken, and it was in this capacity and as the losing party that he sought leave to appeal to the Commissioner, not as a personal representative.
7. The deceased was born on 15 February 1935. He was married for about ten years but divorced many years ago and had only occasional contact with an adult daughter of his ex-wife. He was Jewish and until about 1980 he was a member of an orthodox synagogue serving a Jewish community in an urban area of England but outside London. His parents had both been members of the same synagogue and on their deaths (his father in 1957 and his mother in 1981) they had each been buried in the cemetery maintained for members of that synagogue. Burials and associated activities are conducted on behalf of the members of the synagogue by its Burial Society. I shall refer collectively to the officials of the synagogue and its Burial Society as “the synagogue authorities”. I give more detail below about such arrangements.
8. The deceased also had two brothers, from whom he was estranged. One of them lives...
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