Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CIS 2729 2006

ADMINISTRATIVE APPEALS CHAMBER

Secretary of State for Work and Pensions v FS

Hearing 19 10 2007 and 13 05 2009

Martin Chamberlain of counsel, instructed by the Solicitor to the Department for Work and Pensions, for the appellant

Tim Buley of counsel, instructed by Nottingham Law Centre, for the respondent

DECISION

The decision of the tribunal on 4 10 2005 is set aside. The decision of the Secretary of State of 11 08 2003 is confirmed. The appellant is not entitled to a Social Fund funeral payment in respect of the death of her late son. This is because she was not entitled to any qualifying benefit at the date of claim.

REASONS FOR DECISION

1 This appeal concerns a claim made by the claimant and respondent to this appeal, FS, for a funeral payment for the funeral of her late son, who was 21 when he died. The claim was refused because she was not in receipt of a qualifying benefit. She appealed to a social security tribunal. The tribunal allowed the appeal. It decided that FS should be paid a funeral payment. The tribunal decided this by disapplying the relevant British regulation about qualifying benefits. It did so because of the appellant’s rights under the European Convention on Human Rights and the Human Rights Act 1999.

2 The Secretary of State for Work and Pensions appealed. I held a hearing in October 2007. The appeal was then stayed while other cases were appealed to the higher courts. The final hearing of this appeal was held only in May 2009. At that hearing I heard witness evidence from Julie Munt, giving policy evidence about the regulations for the Secretary of State for Work and Pensions. This decision deals with issues discussed at both hearings.

Following the hearing I sent a draft decision to both parties. Both parties asked for additional time to respond, but I have now received comments from both of them and thank the parties for them. This decision takes those comments into account.

The original decision and appeal

3 The decision to refuse the payment was taken in August 2003 in respect of a claim made by FS. She claimed a Social Fund funeral payment for her late son. The funeral took place on 7 July 2003, and a bill had been submitted. The Secretary of State accepted a late appeal in respect of that claim.

4 It was asserted for FS that FS was entitled to a funeral payment under the relevant regulations despite the fact that she was not entitled to a qualifying benefit at the time of her claim. The reason for this was that she was not entitled to a qualifying benefit as she was imprisoned under a custodial sentence at the time. However, she does not appear to have made any claim for one of the relevant benefits at the time.

5 FS’s representatives challenged the decision of the Secretary of State on the grounds that it failed to take into account FS’s rights under the European Convention on Human Rights. A point was also taken about comparison with the former death grant, but this point was not pursued.

6 After several case management hearings and directions, lengthy submissions on paper, and two full hearings, the social security tribunal decided in October 2005 that a Social Fund funeral payment was a possession under Article 1 of Protocol 1 (“A1P1”) to, and that FS was within the scope of Articles 8 and 14 of the European Convention on Human Rights. It found as fact that FS was entitled to a Social Fund funeral payment save for the receipt of a qualifying benefit. It then disapplied the relevant British legislation on that point so far as incompatible with its decision. As the legislation was secondary legislation, and not an Act of Parliament, it had power to do that.

7 The Secretary of State made an application for a statement of reasons about the decision. That application did not reach the chairman who took the decision until, in the view of that chairman, it was too late for a proper statement of reasons to be made. It is common ground that this was not the fault of either party. Nor was it the fault of the chairman. The chairman declined to make a statement. The Secretary of State then applied for permission to appeal. That application was rejected for want of the statement of reasons. That was obviously most unfortunate given the effort clearly devoted by the tribunal and chairman to the proceedings. One result was that the appeal was then sidetracked into procedural issues arising from the failure to produce the statement of reasons. Those issues arose under the Social Security and Child Support (Decisions and Appeals) Regulations 1999, the procedure rules then applying. Those rules have now been replaced by different provisions in the Tribunal Procedure Rules. As nothing now turns on the points in this appeal, I do not repeat the details here. I granted permission to appeal and directed a hearing.

The issues in the appeal

8 I held a hearing in October 2007. It became clear that the decision in this appeal should be stayed, and it was, while the House of Lords decided the appeal in R (RJM) v Secretary of State for Work and Pensions. The decision of the House of Lords is now published as [2008] UKHL 63. The European Court of Human Rights also made relevant decisions while that decision was under consideration. Following those decisions, there is now significantly more common ground between the parties.

9 I indicated at the close of the first hearing that the decision of the tribunal below should be set aside as inadequate. In the absence of any statement of reasons, it failed to make adequate findings or give adequate reasons for its decision. That was accepted by the respondent. I confirm that view. The decision of the tribunal is set aside.

10 Mr Chamberlain, for the Secretary of State, put six substantive points in issue at the original hearing. Because of the intervening case law, he withdrew some ahead of the second hearing. His position at the second hearing on those points was:

(1) Social Fund funeral payments are in the ambit of Article 8, but not A1P1 of the European Convention on Human Rights.

It is now accepted for the Secretary of State that this was no longer maintainable in the light of the decision of the House of Lords in RJM.

(2) FS cannot establish interference with her rights under article 8 read alone.

(3) If there were any interference with her article 8 rights, they were proportionate and justified.

(4) FS cannot claim to be a victim of discrimination based on her prisoner status.

(5) The status of prisoner is not one of the grounds under which discrimination under article 14 is prohibited and was not an “other status” within article 14.

It is now accepted that this is no longer maintainable in the light of the decision of the European Court of Human Rights in Shelley v UK (Appn No 23800/06) of 4 January 2008.

(6) Any discrimination on the grounds that she was a prisoner is justified.

Mr Chamberlain’s position at the second hearing was therefore based on grounds (2), (3), (4) and (6).

11 Mr Buley’s reply focussed the case even further. He based his case on the argument that article 8, article 14, and A1P1 of the European Convention on Human Rights were engaged. But he advanced no argument that FS had any rights relying on article 8 alone. Issues (2) and (3) were not contested. The issues for decision were therefore (4) whether FS was a victim of discrimination, in the sense required by the European Convention on Human Rights, because she was as a prisoner and, if so, (6) whether the discrimination against FS in refusing her a Social Fund funeral payment could be justified.

The basis of the claim

12 There were few clear findings of fact by the tribunal. And, unfortunately, key documents such as FS’s original claim forms are no longer held by either party. I must therefore decide the legal issues in this case by assuming some unfound facts in the light of the submissions to me at both hearings.

13 For the purpose of this decision I accept or assume as follows. FS was a prisoner serving a custodial sentence at the time she made her original claim for a funeral payment for her late son. She was the responsible person in respect of the funeral of her late son, but he was no longer a child or young person. The claim was originally refused because FS was not in receipt of a qualifying benefit when she made the claim. But she had not claimed such a benefit as she was serving a custodial sentence at the time. And she was not receiving a qualifying benefit when she started serving the term of imprisonment.

Qualifying benefits

14 The Social Fund funeral payment is one of a number of benefits or allowances to which entitlement arises through what are known as passport benefits or qualifying benefits.

A passporting benefit automatically qualifies a recipient to a second benefit. A qualifying benefit is one that a recipient must receive in order to claim a second benefit. In this case the regulations provide that entitlement to one of the qualifying benefits is a condition (but not the only condition) for claiming a funeral payment.

15 That link is central to the arguments of both parties. The formal decision under appeal to the tribunal below was that FS was not receiving a qualifying benefit when she made her claim. She therefore could not claim the funeral payment successfully. The formal decision of the tribunal below was that FS was refused the funeral payment because of unlawful discrimination in the relevant secondary legislation. It was unlawful because the requirement of receipt of a qualifying benefit imposed an impossible condition on FS. She was not able to claim successfully any of the qualifying benefits that qualified her for this benefit, and she had no other way of claiming this benefit. The effect of the tribunal decision was to sidestep the qualifying requirement that FS needed to be receiving another benefit in order to receive this benefit. The tribunal agreed with the proposition for the appellant that the legislation was fundamentally wrong in its approach of making this benefit only a benefit available to those receiving qualifying benefits.

16 The specific argument for FS was that she was prevented from receiving such a benefit because she was a prisoner. That was unlawful discrimination because it prevented her from claiming the funeral payment successfully in circumstances that breached her rights under her rights not to be discriminated against (article 14) in the exercise of her family rights under article 8 of the Convention and her property rights under A1P1 to the Convention.

17 It was argued for the Secretary of State that this was not so. FS’s representative had misunderstood the nature of the link between the qualifying benefits and the funeral payment. There was no such discrimination as alleged. But even if there were discrimination, then it was discrimination of a kind proportionate to the objectives behind the provision of Social Fund funeral payments.

18 I must therefore examine the list of qualifying benefits in the legislation and how they apply to prisoners. Because the original decision was made in 2003, I must apply the law at that time to the dispute. The relevant rules were in the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (SI 1987 No 481). These were replaced from 5 12 2005 by the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 (SI 2005 No 3061). The references below are to the 1987 regulations unless otherwise indicated.

Regulation 7

19 The provision requiring that the applicant for a funeral payment is in receipt of a qualifying benefit is regulation 7(1)(a) of those Regulations (funeral payments: entitlement). This sets out the following condition (to which I have added extra spacing to emphasise the list of benefits involved):

“(a) the claimant or his partner (in this Part of these Regulations referred to as “the responsible person”) in respect of the date of claim for a funeral payment-

(i) has an award of

income support,

state pension credit,

income-based jobseeker’s allowance,

working tax credit where the disability element or the severe disability element of working tax credit as specified in regulation 20(1)(b) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 is included in the award,

child tax credit payable at a rate higher than the family element,

housing benefit or

council tax benefit where, in the case of council tax benefit, that benefit is awarded by virtue of the claimant or his partner having fulfilled the conditions of entitlement specified in sections 131(3) to (5) of the Social Security Contributions and Benefits Act 1992 (certain conditions for entitlement to council tax benefit); or

(ii) is a person to whom (by virtue of subsection (7) of section 131 of that Act subsection (6) of that section applies where, on a claim for council tax benefit, the conditions of entitlement specified in section 131 (3) and (6) for an award of an alternative maximum council tax benefit are fulfilled.”

That regulation has now been replaced by, and rewritten in, regulation 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 in which the list of qualifying benefit has been set out in numbered list form but is otherwise unchanged.

The list of qualifying benefits

20 That is a complex list as it involves social security benefits administered separately by three administrative bodies for any one individual claimant: the Department for Work and Pensions and the Commissioners for Her Majesty’s Revenue and Customs at the national level and the relevant local authority at the local level.

21 What is now a complicated list in regulation 7(1)(a) started life in 1987 as a simple provision:

“(a) the claimant or his partner is, in respect of the period during which the claim for a funeral payment is made, in receipt of supplementary benefit, family income supplement or housing benefit”

See the original text before amendment of SI 1987 No 481. Its evolution towards the current list can be seen by reference to the form the regulation had taken in 1994, when the list of benefits in regulation 7(1)(a)(i) was:

“(i) has been awarded income support, family credit, disability working allowance, housing benefit or council tax benefit where, in the case of council tax benefit, that benefit is awarded by virtue only of the claimant or his partner having fulfilled the conditions of entitlement specified in section 131 (3) to (5) of the Social Security Contributions and Benefits Act 1992 (entitlement to the appropriate maximum council tax benefit)”.

See Mesher and Wood, Income Related Benefits: The Legislation, 1994 edition, Sweet & Maxwell.

22 Two separate issues arising from that regulation require fuller analysis here. The first is the link to each benefit. Originally this was receipt of the benefit, but it is now that in respect of the date of the claim the individual has an award of the benefit. The second is whether someone in FS’s position, that is while undergoing a custodial sentence, could be awarded the benefit for the date of claim.

“has an award of …”

23 The decision taken for the Secretary of State on FS’s claim was technically wrong. It was that FS was not receiving a qualifying benefit at the time. As noted above, that was the original test under the 1987 regulation but it was changed to the current wording in 1989 (SI 1989 No 379, regulation 3).

24 The difference in wording may be important as an understanding of the general position of prisoners for these purposes. This would be so if the wording of the decision were correct, because it might being into play section 113(1)(b) of the Social Security Contributions and Benefits Act 1992 applies to this case. That section provides that:

“(1) Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Parts II to V of this Act … for any period during which the person –

(a) is absent from Great Britain; or

(b) is undergoing imprisonment or detention in legal custody.”

This is given effect by regulations 2 and 3 of the Social Security (General Benefit) Regulations 1982 (SI 1982 no 1408). These are complicated provisions that provide exceptions to the general disqualification. However, they did not provide an exception for the case of a prisoner claiming any of the relevant benefits while in prison in respect of a time during the custodial sentence.

25 In CIB 3645 2002 a Tribunal of Commissioners decided that section 113(1) dealt with receivability of a benefit and not entitlement to it (see paragraphs 28 and following of the decision). That decision was about the application of section 113(1)(a) so does not assist further with the other issues in this case. But it does decide authoritatively that that section does not stop prisoners applying for any of the benefits to which it applies, or being awarded the benefit, if entitlement exists.

26 It follows that the fact that a prisoner cannot receive a benefit does not stop the qualifying rule from operating, and therefore does not prevent a prisoner making a claim for that benefit, if there is underlying entitlement.

27 This change of wording also introduced a timing point. The requirement of the regulation now is that the individual concerned has an award in respect of the date of claim. That is not the same thing as an award at the date of claim or an award at the date of the funeral. The rules about advance claims and late claims vary from benefit to benefit. They are in the Social Security (Claims and Payments) Regulations 1987. Section 113 does not stop advance claims or late claims or awards being made on those claims. What it stops is any benefit being received under any such claim if the claimant is a prisoner at the relevant time.

28 If officials were refusing to allow prisoners to make claims, or were refusing to decide claims, otherwise that in accordance with that position, then that would be wrong in law. I do not have any facts before me suggesting that that has been the case here.

The individual qualifying benefits

29 The second of the issues requiring fuller analysis that of the qualifying benefits. FS was not within the scope of most of the qualifying benefits, for example by reason of age, parentage or her state of health. The argument for her is that there is discrimination against her as a prisoner. I must therefore examine each of the qualifying benefits listed in regulation 7 to identify whether or not they may be claimed by, and awarded to, a prisoner. I do so in the order of priority as between the benefits, and not in the historical but somewhat random order they appear in regulation 7.

(1) Child tax credit

30 The qualifying entitlement is an award of “child tax credit payable at a rate higher than the family element”.

31 Entitlement to child tax credit is separate from that for working tax credit and does not require that the claimant be working. It requires that claimant be responsible for one or more children or young persons. That link is defined by regulation 3 of the Child Tax Credit Regulations 2002 (SI 2002 No 2007). The main test is that the child or young person is normally living with the claimant. But both in law and in practice if there are two or more individuals with entitlement to claim and they jointly agree on who should claim then that claim will be accepted. So a prisoner could claim for child tax credit for her child (assuming that her income was limited) if the child was living with her in prison in a prison mother and baby unit or if her claim was made in agreement with anyone else entitled to claim. The regulations bar a claim for a child or young person in custody for a term of at least four months (see Case C in regulation 3 of those Regulations). They do not bar claims by prisoners.

(2) Working tax credit

32 The qualifying entitlement is an award of:

“working tax credit where the disability element or the severe disability element of working tax credit as specified in regulation 20(1)(b) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 is included in the award.”

33 One of the conditions for receiving working tax credit is that the individual is in work for at least 16 hours a week. That prevents a claim for either jobseeker’s allowance or income support. Regulation 4(2)(g) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 excludes work done by an individual from being qualifying remunerative work for the purposes of this benefit if, among other situations, the individual is serving a custodial sentence and is engaged in work while serving the sentence. That applies only since 6 April 2007. This was by an amendment to that regulation made by SI 2007 No 824, regulation 4. According to the explanatory note to that regulation, this was done:

“to clarify that a person serving a custodial sentence or remanded in custody awaiting trial or sentence (other than a person on remand who would qualify by virtue of regulation 7B) and is engaged in work (whether inside or outside a prison) while serving a sentence or remanded in custody shall not be regarded as being in “qualifying remunerative work” for the purposes of a claim to tax credits.”

That suggests that the assumption of those drafting the original regulations was that a prisoner could not claim working tax credit successfully. I am personally aware of schemes under which prisoners worked, and could in principle have claimed and been awarded working tax credit. I was told that the Secretary of State was aware of a scheme that did result in such claims, and that this had led to the clarification. I take from that the policy stance that there was no intention that such claims be allowed.

34 The qualifying link from tax credit to Social Fund funeral payment is narrower than a general entitlement. It is limited to those cases where an individual would have been entitled to disability working allowance before that allowance was abolished. To qualify for that allowance, the individual must have a degree of disablement such that he or she is also entitled to one of the benefits or allowance listed in regulation 9 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002. In other words, this is double qualifying. To claim Social Fund funeral payments under this category of qualifying benefit, you have to meet one of the Cases A to G for entitlement to the disability element of working tax credit. And to be within one of those Cases, you have to “in receipt of” or have “received” one of the benefits or allowances set out in that regulation, or to be someone to whom such a benefit is “payable”. There is no consistent single test in regulation 9. But they are all couched in terms of payment and receipt rather than entitlement.

35 This creates a problem for a prisoner because section 113, noted above, breaks the link between any underlying entitlement to, say, disability living allowance, and the double qualifying to a right to claim a funeral payment. It would be enough for regulation 7 of the 1987 Regulations that the claimant had an award of any of the benefits. But that is not enough for working tax credit entitlement. There has to be payment or payability, and section 113 stops that for all the benefits under Parts 2 to 5 of the Social Security Contributions and Benefits Act 1992. Regulation 9 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 sets out seven cases, Cases A to G, that constitute routes to entitlement to this aspect of working tax credit. Several of these are closed to prisoners by section 113. The routes left open are through receipt of income support, income-based jobseeker’s allowance, housing benefit or council tax benefit if they were payable with a disability premium or through the receipt of statutory sick pay or occupational sick pay for an extended period. It is possible, although I suspect unlikely, that there is someone who could meet that narrow test. While I do not accept Mr Chamberlain’s analysis of the position with regard to this benefit, it cannot be said therefore that there is any express rule preventing prisoners obtaining a funeral payment through this route.

(3) Jobseeker’s allowance

36 The qualifying entitlement is to income-based jobseeker’s allowance. Entitlement to contribution-based jobseeker’s allowance is not included. Entitlement is therefore confined to those who have an inadequate National Insurance contribution record in the two years leading up to the year of claim. I consider this before income support because one of the conditions for receiving income support is that the claimant (or any partner) is not entitled to this allowance: Social Security Contributions and Benefits Act 1992 section 124(1)(f).

37 There was at the relevant time for this decision, and is, no express provision preventing a prisoner claiming jobseeker’s allowance. However, in order to be able to claim the allowance an individual must show that he or she is both available for employment and actively seeking employment. “Available for employment” is defined by section 6 of the Jobseekers Act 1995 as being “willing and able to take up immediately any employed earner’s employment”. The Secretary of State accepted that some prisoners could be available for employment. That was precisely why the specific bar was put into the conditions for claiming working tax credit. I do not therefore accept that this is the basis for stopping all prisoners claiming jobseeker’s allowance. But I am prepared to accept that the second of those conditions cannot be met by a prisoner under a custodial sentence because he or she could not be available for work without the consent of the prison authorities. It is assumed both officially and in all the commentaries that this consent will not be obtained. That would apply equally to someone claiming contribution based jobseeker’s allowance.

38 That is not the full picture. Regulation 7(1)(a) requires that:

“the claimant or his partner … in respect of the date of the claim for a funeral payment –

(i) has an award of … income-based jobseeker’s allowance.”

If a claimant has a partner then they must make a joint claim for jobseeker’s allowance: section 1(2B) of the Jobseekers Act 1995. This is also subject to complex limitations, the most important of which is that it does not apply if one of the couple claims child benefit. See Jobseekers Act 1995, section 1(4) and Jobseeker’s Allowance Regulations 1996, regulations 3A – 3E. In practice the provisions of regulation 3E(2) of those regulations will allow the non-imprisoned partner to make a claim ignoring the prisoner partner because, if no other limit applies, prisoners will almost certainly not be available to attend the required interview with an employment officer at the time and place specified by the officer.

39 That must be read with, and is subject to, regulation 78 of those Regulations. This operates to stop partners being regarded as living in the same household when a prisoner partner is temporarily living away from it. This applies, under regulation 78(2)(b) where:

“one, both or all of them are –

(i) detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court…”

The effect is to exclude such a couple from the definitions of both “married couple” and “unmarried couple” in the provisions then set out in section 35 of the Jobseekers Act 1995. It is a condition of the existence of either category of couple that the two are members of the same household. (Those definitions have now been replaced by a common definition of “couple” but the point remains the same.) There is therefore a specific provision excluding the prisoner being part of a couple with a non-prisoner, and so excluding a need for the two to make a joint claim. The overall effect is to prevent a prisoner making a joint claim with the prisoner’s partner. It also means that the prisoner and partner are not, for this purposes, partners. So any entitlement to a qualifying benefit of someone who is in fact a partner will not be relevant for the purposes of a claim by a prisoner for a funeral payment. This blocks the operation of regulation 7(1)(e) of the Regulations, which allowed the claim to be made either by the person accepting responsibility for the funeral expenses and the partner of that person if the individual was in prison at the time of the deceased’s death.

40 This is therefore a benefit that a prisoner cannot claim. Further, the reason that the prisoner cannot claim makes any entitlement to contribution-based jobseeker’s allowance, rather than income-based jobseeker’s allowance irrelevant. I therefore do not accept Mr Chamberlain’s submissions about the terms of the regulation being limited only to one kind of that allowance. The reason why a prisoner cannot claim is partly the result of express provisions (such as that preventing a prisoner claiming a funeral payment using a qualifying benefit claimed by the prisoner’s partner) and partly because of the practical requirements that must be met by a claimant.

(4) State pension credit

41 The qualifying entitlement is to state pension credit whether claimed by the claimant for the funeral payment or the claimant’s partner. It includes entitlement to either kind of state pension credit (guarantee or savings). This has priority over income support. Income support is not payable to someone who has attained the qualifying age for state pension credit or is a member of a couple the other member of whom is entitled to state pension credit: Social Security Contributions and Benefits Act 1992 section 124(1)(aa) and (e).

42 Prisoners are expressly excluded from entitlement to an award of state pension credit by regulation 6(2) and (3) of the State Pension Credit Regulations 2002 (SI 2002 No 1792). This provides that the standard minimum guarantee for prisoners, other than remand prisoners, is nil. That operates to give prisoners a nil minimum guarantee credit under section 2 of the State Pension Credit Act 2002. In other words, the entitlement in section 1 of that Act is made into a nil entitlement. It might be argued that such a prisoner is entitled to ask the Secretary of State for a nil award. Such awards are now routine for tax credits, and are accepted by Her Majesty’s Revenue and Customs as being awards for the purposes of that legislation. But I am not aware of any legislative or judicial authority, or any practice or guidance of the Secretary of State, from which the same argument could be applied to state pension credit. And for current purposes it is enough to note that the Secretary of State does not make nil awards, even if the law allowed that, so preventing any possibility of a claim by a prisoner being based on such an award. My conclusion is that because of an express prohibition prisoners cannot claim this credit.

(5) Income support

43 The qualifying entitlement is to income support whether claimed by the claimant for a funeral payment or the claimant’s partner.

44 To claim income support since 1996 a claimant must “fall within a prescribed category of person”: Social Security Contributions and Benefits Act 1992 section 124(1)(e) as amended by the Jobseekers Act 1995, Schedule 2, paragraph 30. The prescribed categories of person are those listed in Schedule 1B to the Income Support (General) Regulations 1987. The only prisoners identified in that Schedule are those in paragraph 22: “A person remanded in, or committed in, custody for trial or for sentencing”.

45 Regulation 21 of the Income Support (General) Regulations 1987 also makes express provision for prisoners. It applies Schedule 7 to those regulations to any person identified in the Schedule, and it makes provision for the applicable amount of support for that person. Paragraph 8 of Schedule 7 applies as follows:

“Prisoners

8 A person –

(a) except where sub-paragraph (a) Nil;

(b) applies, who is a prisoner;

(b) who is detained in custody (b) only such amount, if any, as

pending trial or sentence may be applicable under

following conviction by a regulation 17(1)(e).

court.

46 The combined effect of these provisions is that someone undergoing a custodial sentence cannot claim income support sucessfully. If a claim is made involving that individual, then there is a nil entitlement in respect of that individual.

47 To complete the picture, reference must also be made to regulation 16 of the Income Support (General) Regulations 1987. This is the equivalent of regulation 78 of the Jobseekers Allowance Regulations noted above. Regulation 16(3)(b) of the Income Support (General) Regulations 1987 has an identical regulation to regulation 78(2)(b)(i) set out above. So again this stops a couple being treated as members of the same household if one is in prison, so allowing the other to make a claim without reference to the prisoner and preventing the one including the other in the claim. This therefore imposes an express bar on a prisoner using a partner’s qualifying benefit to make a claim for a funeral payment.

(6) Housing benefit

48 The qualifying entitlement is to housing benefit, whether claimed by the claimant for the funeral payment or the claimant’s partner.

49 The relevant provisions for entitlement to housing benefit at the relevant time for this appeal were in the Housing Benefit (General) Regulations 1987 (SI 1987 No 1971). Section 130(1)(a) of the Social Security Contributions and Benefits Act 1992 gives entitlement to claim housing benefit in respect of liability to make payments for a dwelling that the claimant occupies as his or her home. Regulation 5 of those regulations makes express provision for temporary absences. There is an express provision in regulation 5(8B) for an absence of up to 52 weeks to be ignored in respect of someone absent because of detention in custody pending trial or sentence or required to live in a bail hostel. There is no express rule dealing with other prisoners. However they will be entitled to the benefit of the general provision in regulation 5(8). This is a conditional provision allowing a period of up to 13 weeks to be ignored regardless of the reason for the absence. There is also provision regarding release on licence as not involving the cessation of the detention of the individual.

50 There is no direct equivalent in the Housing Benefit (General) Regulations 1987 of the provisions in regulation 78 of the Jobseeker’s Allowance Regulations 1996 about prisoners. The equivalent regulation, regulation 15 of the 1987 Regulations, applies to stop a person being regarded as in the same household as another person if either the person is living away and does not intend to return, or the absence is likely to exceed 52 weeks unless there are exceptional circumstances and the absence is unlikely to be substantially more than 52 weeks. That would appear to allow claims for funeral payments to be made through a prisoner’s partner save where the custodial part of a prison sentence is likely to last substantially longer than a year.

(7) Council tax benefit

51 There are two qualifying entitlements from council tax benefit to Social Fund funeral payment. They are where a claimant or partner:

- has an award of council tax benefit where “that benefit is awarded by virtue of the claimant or his partner having fulfilled the conditions of entitlement specified in sections 131(3) to (5) of the Social Security Contributions and Benefits Act 1992 (certain conditions for entitlement to council tax benefit)” or

- “is a person to whom (by virtue of subsection (7) of section 131 of that Act) subsection (6) of that section applies where, on a claim for council tax benefit, the conditions of entitlement specified in section 131 (3) and (6) for an award of an alternative maximum council tax benefit are fulfilled.”

52 Regulation 4C(2) to (4) of the Council Tax Benefit (General) Regulations 1992 lay down similar provisions to those in regulation 5 of the Housing Benefit (General) Regulations 1987 above about periods of absence of up to 13 weeks generally and 52 weeks for remand prisoners and pre-sentence prisoners. There are no specific rules dealing with the question whether a prisoner partner and non-imprisoned partner are members of the same household and so still to be regarded as partners. This is therefore a question of fact.

53 The second qualifying entitlement allows a claimant’s entitlement to council tax benefit to be extended in circumstances that do not need to be explored here.

54 The general position with regard to claims by prisoners or their partners to this qualifying benefit is therefore similar to that of housing benefit. In practice it is much wider because housing benefit applies only to those paying appropriate forms of rent to someone else for occupying their homes. Council tax applies to all occupants.

The policy behind the list of qualifying benefits

55 In all the above cases the fact that an individual who was awarded benefit, or was a partner of someone awarded benefit, was sentenced to a term of imprisonment would require to be reported to the relevant administering authority or authorities as it would alter at least some of the circumstances in which the individual or partner could continue receiving the benefit.

56 I was given evidence about this by Julie Munt. That evidence was not challenged by the respondent. She took me through a selected history of the former death grant and the exceptional needs payments part of supplementary benefit and their replacement in 1987 by this provision. She also outlined some aspects of the evolution of the provision since 1987 to date.

57 The key statement of government policy with regard to the approach taken in regulation 7 was set out in chapter 4 of the Government’s White Paper, Reform of Social Security: Programme for Action in December 1985. The policy was stated as follows:

“4.20 Payments will also be made to help low-income families who are unable to meet the reasonable cost of a funeral for which they are responsible. This will replace the death grant which has remained at £30 for nearly 20 years. The new system will also take the place of the existing supplementary benefit provisions for meeting actual funeral costs borne by supplementary benefit claimants. There will therefore be a common approach to low-income groups.

4.21 The Government accepts that it will be important to handle this part of the fund with a minimum of detailed investigation into personal circumstances at a distressing time for the person seeking help. We believe this is best done through making clear that receipt of any of the main income-related benefits – income support, family credit and housing benefit – will qualify someone for help. This avoids a separate assessment of income. It also means that more people, not less (sic), will be able to get proper help with the costs of a funeral.”

Qualifying benefits: summary

58 At the end of 2003 there may have been some mothers able to claim successfully child tax credit for their children. They would be able to claim funeral payments successfully for their children or any other individual for whom they were responsible. A prisoner could continue claiming and receiving housing benefit or council tax benefit if the total absence from the home was likely to be less than 13 weeks. Such a prisoner could claim a funeral payment successfully if otherwise entitled to claim. And claims could be made in most cases through the partner of a prisoner if the absence was less than a year. Few if any prisoners would have been entitled to the disability element of working tax credit at the time because they would be prevented from receiving most relevant disability benefits because of their status as prisoners. Prisoners then had a nil entitlement to income support and to state pension credit. Prisoners would be prevented by the circumstances of their imprisonment from being entitled to jobseeker’s allowance. No such prisoner could claim a funeral payment successfully.

Was there discrimination?

59 It cannot be said that there is an express general prohibition against prisoners generally incorporated directly or indirectly in regulation 7. But there are express prohibitions against prisoners receiving some of the benefits. In FS’s case, on the facts, she was not responsible for any children (in the child tax credit sense of the term), nor was she disabled, nor was she over pensionable age. So the only benefits she could claim, even in principle, if her status as a prisoner serving a custodial sentence were ignored would be jobseeker’s allowance (assuming she did not have an adequate contribution record) or income support (if she did not have to be available for work), and the two benefits payable by her local council. If otherwise entitled, she could claim the two local benefits for a limited period when in prison but not the other benefits. I have no information about whether that could have applied to FS on the facts. But that is to add in additional factors to her status as a prisoner – and her case was not argued on the basis of a status as a prisoner serving a sentence of over 13 weeks with no children for whom she was responsible and who was not disabled and was under pensionable age and had no partner claiming, at least, council tax benefit.

60 Nor do I agree that one can take a narrower approach to the question of direct discrimination by looking at a specific qualifying benefit alone by arguing that she would have been entitled to income support (or some other benefit) but for her status as a prisoner. The regulation encompasses a range of qualifying benefits and in my view they should be looked at as a whole in considering this point. I do not therefore accept that FS was subject to express direct discrimination in the application of regulation 7 to her because of her status as a prisoner undergoing a custodial sentence.

61 Was there indirect discrimination, in the sense that there was discrimination in breach of Article 14? That is more difficult because undoubtedly the appellant was excluded from certain of the benefits by which she could qualify for the funeral payment, and the conditions for claim and award for the others were (aside from the two benefits payable locally) very limited. A full analysis of the way in which, as a totality, the qualifying benefits for entitlement to a Social Fund funeral payment apply to prisoners, or some prisoners, as set out above leads to a level of complexity that it in my view makes it difficult to argue any direct or indirect discrimination being evidenced by the rules as a whole. However, if attention is focussed on the underlying qualifying benefits, some of the rules provide discrimination in the terms of entitlement of the qualifying benefits. Some do not discriminate on this basis either expressly or by necessary implication. The issue whether as a result this rule discriminated indirectly was not addressed specifically at the second hearing. That proceeded on the basis that if there were discrimination then, in the view of the Secretary of State, there was justification while that was challenged for the appellant while the appellant did not accept that there was justification.

62 My view, in so far as I should arrive at a decision on this point, is that as a claimant can qualify by reference to any of the qualifying benefits, and on the arguments and evidence before me, the discrimination alleged has not been established. My conclusion is therefore that I accept Mr Chamberlain’s argument that there was no discrimination. However, with regard to indirect discrimination in particular, the focus of the second hearing was on the issue of justification. I therefore consider whether, if discrimination is established, the Secretary of State can show that the provisions of the regulation are proportionate to the situation with which the regulation is dealing and so are within the proviso to article 8 or A1P1, read as appropriate with Article 14. It is only if I consider that justification for any discrimination is not established that it is necessary that I rest this decision on the presence of absence of indirect discrimination.

63 The tests are:

(a) in respect of Article 8 (right to respect for private and family life):

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention or disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

(b) in respect of Article 1 of Protocol 1 (protection of property):

“The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The policy behind the Government’s approach

64 The evidence of Miss Munt and the submissions of Mr Chamberlain between them put forward a series of justifications for any violation of FS’s rights by regulation 7.

65 The central justification was that the original policy of the Government, as accepted by Parliament in the original regulation and continually since, was to use the technique of qualifying. It was submitted that that was and is a proper way for a specific benefit such as a funeral payment to be paid. It is a one-off payment for a specific and stressful occasion. It is not a general entitlement to benefit. The argument is that the Government is fully entitled to target such a benefit, and in doing so it is fully entitled to use other targeted benefits to achieve that targeting. Neither FS nor anyone else has a general right to a funeral payment.

66 I accept that argument. The starting point is, as Mr Chamberlain submitted and Mr Buley accepted, that there is no general right to a funeral payment aside from the specific regulation making provision for it. The Act authorising the regulations is enabling, not entitling.

67 Once the right has been created, then anyone within the scope of the right also has a property right under A1P1 equally with all others to that right, and has a right under Article 14 not to be the subject of unfair discrimination in being excluded from that right. I have analysed the list of qualifying benefits, and the extent of that right, in detail above. It is an attempt to list the income-based benefits that are currently equivalent to those listed originally in 1987, and so to maintain in the context of the increasing complexity of our income-related benefit system that same targetting.

68 I have examined the list of qualifying benefits in detail. As we have seen, that list does not interlock at all tidily with the rules about awards of benefits to prisoners and/or their partners. Indeed, I am left with the view that the interlocking leaves so varied a set of results that there is no one policy evidenced by the existing situation. As a result, it is clear that there is no one rule, or consistent set of rules, excluding prisoners entirely from entitlement. At the same time, it must be borne in mind that most of the benefits are aimed at providing for the needs of the individual claimant, or at least the claimant and immediate family. In an immediate sense, the immediate needs of a prisoner are met by the prison authorities and do not warrant further provision from another source. This case arises because the funeral payment is to meet one-off needs arising because of the death of a member of the family where no other family member takes responsibility. I do not have evidence as to possible incidence of such claims, but they are clearly not central to the reason for the award of any of the qualifying benefits.

69 Is there a case for having an additional set of tests for this benefit to ensure that all prisoners are included within that entitlement? Mr Buley argues, as he must, that this must be so to avoid the discrimination he alleges. He did not seek to justify the decision of the tribunal, which if applied generally would simply sidestep the need for a qualifying benefit if the claimant was unable to claim any of the benefits successfully while in prison. His argument therefore required the addition of a further means test or income-related condition of entitlement to those in regulation 7 even if it were not my task as a judge to invent that condition.

70 Mr Chamberlain submitted that, in considering this, it is relevant to note that there are underlying public duties on public authorities to ensure the dignified disposal in England and Wales of any person’s corpse. Miss Munt drew attention to the duty of all local authorities to provide a funeral for the corpse of any individual that would not otherwise receive a proper cremation or burial. That duty is imposed by law under the Public Health (Control of Diseases) Act 1984, section 46. While the main purpose behind that provision is obvious from its title, that does not detract from the fact that the duty is there. (I am dealing in this decision only with the position in England and Wales, to which this Act applies). It is subject to a right of recovery of the costs from the estate of the deceased or certain other sources but that does not remove the general duty where there are no available funds.

71 I accept both from that evidence and from my own knowledge that such funerals are not now restricted to a “pauper’s burial”. I was shown a download from one local authority website. I have to say that that was one of the most welcoming sites maintained by local authorities, and the entries on the equivalent sites of some other local authorities still refer to a “pauper’s burial”, to the National Assistance Act and that they will provide burials only in extreme circumstances. But those are all presentational matters as the one statutory duty applies to all of them. I reminded Mr Chamberlain during the hearing that his submission or evidence should also have included the practice of the National Health Service to provide such a funeral to anyone who died in hospital, in an ambulance, or otherwise while in the care of the NHS if no other person accepts responsibility for a funeral.

72 The fact that FS was not given a funeral grant did not therefore prevent her late son’s body from being given a funeral, even if she did not have the means to provide it and the father did not pay or contribute. Whether on the facts the residual duty would have fallen on the local authority or the National Health Service does not matter. It would have fallen somewhere in the public domain. Failure to make provision for FS, or any other specific individual, to pay for the funeral was not therefore a failure of the state to make provision for the funeral at all. The overall position is that if surviving relatives or others will not or cannot pay for a funeral, there are two systems available to help. One is a funeral payment of the kind that the appellant wishes to claim. The other is the provision of a funeral by a public authority. This is directly relevant to any assessment of any disproportionate effect of any gaps in the extent to which the Government decides to provide the funeral payment as a way of enabling the proper disposal of the body of a deceased person.

73 Taking those points together, I find that any discrimination against prisoners, or some categories of prisoners, that is present by reason of the interaction of the conditions in regulation 7 with the conditions applying to the qualifying benefits is not disproportionate to the objective being attained in regulation 7, namely focussing entitlement to cash assistance towards funeral costs on those family members with limited income or other resources through the technique of using qualifying benefits rather than by making specific provision of an additional means-testing regime for that benefit alone.

74 So far as it is necessary to consider it for the purposes of this decision, I also accept that the limitations in the individual qualifying benefits by reference to the status of a prisoner are separately justifiable where they exist. As was submitted in evidence, prisoners do not need income support or equivalent benefits to meet their basic personal needs, or their long term accommodation needs, when they are held under a custodial sentence. Those are being met by the state in any event, and the prisoner is not required to pay for them.

75 While I accept that those grounds justify any discrimination, I reject the other ground for justification offered by Miss Munt in evidence. In her evidence, it was considered that there was a separate justification of exclusion of prisoners serving a custodial sentence from benefit entitlement as part of their punishment. I am frankly surprised that she gave this evidence, even though Mr Buley did not challenge it. I have to accept from her that that is the view of the Secretary of State. But that is not what the law itself provides. Section 113, for example, does not take away entitlement to benefits because individuals are in prison. It stops payment, which is a different matter. And the social security rules do not prevent prisoners from making successful claims while in prison. Nor do they stop all benefits being paid to all convicted prisoners. So if this was a punishment it might be open to a separate criticism that any such punishment was discriminatory as between different prisoners and arbitrary in that it formed no part of the decision of the judge or magistrates who imposed the punishment.

76 There is nothing in any of the legislative provisions that I have analysed in detail that shows any clear intent by Parliament to use deprivation of social security entitlement as a punishment for those sentenced to a period of imprisonment. And I consider that to be a particularly unlikely approach to this specific welfare provision, as it does not actually benefit the claimant at all in cash terms. I do not need to take the matter further but I anticipate that if this were the only justification for the approach taken in these rules then a challenge could probably be mounted against any penal provision in the rules on the basis that they were ultra vires - or beyond the powers of - the enabling legislation - if they sought to achieve this suggested justification by Miss Munt. That argument could be mounted without any need to turn to the European Convention on Human Rights. Penal measures need express legislation, and there is none.

77 Further, in human rights terms, an appeal against the imposition of a penal measure would involve the additional protections of Article 6 paragraph 3 of the European Convention on Human Rights in this and similar cases. I do not think that Miss Munt has taken that into account. I see nothing “criminal” in these provisions.

78 Leaving that issue aside, I nonetheless conclude to the extent that I need to do so that any discrimination resulting from the complexities of the way in which regulation 7 of the 1987 Regulations uses qualifying as the basis for a claim for Social Fund funeral payments does not create any discrimination that is disproportionate to the objectives of the regulations with regard to claimants who are prisoners or who are in particular groups of prisoners.

Conclusion

79 The legal issues raised by this case are far from straightforward. They illustrate that there are a number of gaps in entitlement of prisoners to the qualifying benefits identified in regulation 7 of the 1987 Regulations that do not appear to evidence any consistent policy with regard to entitlement of prisoners to those benefits. But I am not persuaded that the resulting picture is one that justifies the decision of the tribunal below to disapply the whole approach when assessing the entitlement of a prisoner to a Social Fund funeral payment.

80 I am also not persuaded that I should, in effect, require that some additional direct income-based test be introduced to those regulations to avoid disproportionate discrimination even if I do not have to invent it myself.

81 I set aside the decision of the tribunal for the reasons stated at the first hearing. I must now replace that decision with the decision that the tribunal should have taken. That is a decision confirming the decision of the Secretary of State to refuse a Social Fund funeral payment to SF, though I do so for different reasons to those given by the decision maker acting for the Secretary of State in the original decision. Those reasons are set out above.

David Williams

Upper Tribunal Judge

27 01 2010