House of Lords
|Session 2003 - 04
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Kerr (AP) (Respondent) v. Department for Social Development (Appellants) (Northern Ireland)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Kerr (AP) (Respondent)
Department for Social Development (Appellants)
THURSDAY 6 MAY 2004
The Appellate Committee comprised:
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Kerr (AP) (Respondent) v. Department for Social Development (Appellants) (Northern Ireland)
 UKHL 23
1. 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
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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:
14. 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.
15. 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.
16. 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:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
17. 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.
18. 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.
19. 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
20. 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".
21. 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.
22. 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:
23. 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.
24. 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:
25. 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.
26. The appeal tribunal held that sub-paragraph (b) was applicable. Their reasoning was expressed as follows:
27. 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".
28. 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:
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".
29. 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).
30. 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.