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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2002] UKSSCSC CIS_4769_2001 (26 September 2002) URL: https://www.bailii.org/uk/cases/UKSSCSC/2002/CIS_4769_2001.html Cite as: [2002] UKSSCSC CIS_4769_2001 |
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[2002] UKSSCSC CIS_4769_2001 (26 September 2002)
The legislation
Factual history
The appeal to the tribunal
The appeal to me
The oral hearing
CIS/3150/99
Race Relations Acts
Human rights
Arguments for the appellant
Once it is accepted that the standards articulated in the [ECHR] are standards which both march with those of the common law and inform the jurisprudence of the European Union, it becomes unreal and potentially unjust to continue to develop English public law without reference to them.
In Wilson v First County Trust Ltd (No 2) [2002] QB 74, Laws LJ held that although pre-2 10 00 infringements of Convention rights do not give a separate cause of action under HRA s7(1), the court is under an obligation pursuant to s6(1) to act in a way which is compatible with Convention rights, in so far as it is possible. Both these citations were made to me via the report in Money Markets Ltd v London Stock Exchange [2002 1 WLR 1150, where the plaintiff failed to make them stick. But Mr de Mello relied on them in the context of HRA s11, which preserves a person's existing reliance on any other right or freedom conferred on him by UK law. He urged the undesirability of EU law (as in O'Flynn) and human rights law being out of step. He added that the ECtHR in McShane v UK (Application No 43290/98) The Times, 3 6 02 had indicated that there could be indirect discrimination where a general policy or measure had disproportionately prejudicial effects on a particular group.
Arguments for the Secretary of State
The appellant's response
My conclusions
The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference...The correctness of this decision is more appropriate for Parliament than the courts and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention.
This was a case attacking the human rights compatibility of legislation which enabled a registered social landlord, performing public functions, to secure eviction simply by service of a notice to quit.
...the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is "in the public interest" unless that judgment be manifestly without reasonable foundation.
Wilson J observed that "respect" meant not the respect which a foreign court should pay to national authorities but the respect which any court should pay to national legislatures in the areas of policy there identified. He cited the speech of Lord Hope of Craighead in R v DPP, ex p Kebilene [2000] 2 AC 326 at 381B-D, where he said
In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention...[T]he area in which these choices may arise is conveniently and appropriately described as "the discretionary area of judgment". It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.
Wilson J also referred to the Poplar case, and observed that he regarded it as unnecessary, and even inappropriate, for him to address the defendant's justification arguments with the degree of detail, including statistical detail, which he was asked to do. He "increasingly sensed the incongruity that such a debate was proceeding in court instead of in Parliament".
...still more important, in the present context [costs out of central funds], is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure.
I would therefore, even post-HRA, be hesitant to disregard cost implications without further information. Administrative simplification is a legitimate aim, and a challenge to the immediate family members rule for EEA nationals which is now under consideration before the commissioners submits that inquiries be made into the benefit systems of other EEA states to see whether an immediate family member is receiving one that is analogous to one of the UK qualifying benefits. The trouble and delay that benefit comparison (and if in EEA states, why not others if the regulations are to be read in a non-discriminatory way?) would cause is certainly a factor to be taken into account.
(signed on original) Christine Fellner
Commissioner
26 September 2002
APPENDIX
Entitlement
(1) Subject to the following provisions of this regulation...a social fund payment (referred to in these Regulations as a "funeral payment") to meet funeral expenses shall be made only where -
(a) the claimant or his partner (in this Part of these Regulations referred to as "the responsible person"), at the date of the claim for a funeral payment -
(i) has an award of income support [or other listed means-tested benefits];
(b) the funeral takes place -
(i) in a case where the responsible person is a person to whom paragraph 1A applies, in an EEA State [as defined in 1A];
(ii) in any other case, in the United Kingdom;
(c) the deceased was ordinarily resident in the United Kingdom at the date of his death;
(d) the claim is made within the prescribed time for claiming a funeral payment;
(e) the claimant or his partner accepts responsibility for those expenses and -
(i) the responsible person was the partner of the deceased at the date of death; or...
(iii) in a case where the deceased had no partner...the responsible person was, subject to paragraphs (3) and (4), an immediate family member of the deceased and it is reasonable for the responsible person to accept responsibility for those expenses;
(iv) in a case where the deceased had no partner and (ii) and (iii) above do not apply, the responsible person was, subject to paragraphs (3) and (4)...a close relative of the deceased...and it is reasonable for the responsible person to accept responsibility for those expenses
(1A) [Defines the persons to whom paragraph (1)(b)(i) applies as "workers", whether alive or dead, members of their families and persons having a right to reside in the United Kingdom, all by reference to European Council Regulations; it is not argued that the appellant was a person to whom paragraph 1A applied].
(2) For the purposes of paragraph (1)(e)(iii) and (iv), the deceased shall be treated as having no partner where the deceased had a partner at the date of death and -
(a) no claim for funeral expenses is made by the partner in respect of the death of the deceased; and
(b) that partner dies before the date upon which the deceased's funeral takes place.
(3) Subject to paragraph (4), the responsible person shall not be entitled to a funeral payment where he is an immediate family member [or] a close relative...of the deceased and -
(a) there are one or more immediate family members of the deceased;
(b) neither those immediate family members nor their partners have been awarded a benefit to which paragraph 1(a) refers; and
(c) any of the immediate family members to which sub-paragraph (b) above refers was not estranged from the deceased at the date of his death.
(4) Paragraph (3) shall not apply to disentitle the responsible person from a funeral payment where the immediate family member to whom that paragraph applies is -
[(za)-(d) define five types of person - minors, full-time students including mature students, members fully-maintained by religious orders, persons in custody and hospital in-patients, the two latter being persons who or whose partners were in receipt of a qualifying means-tested benefit immediately before their detention or treatment began.]
(5) In a case to which paragraph 1(e)(iii) or (iv) applies, whether it is reasonable for a person to accept responsibility for meeting the expenses of a funeral shall be determined by the nature and extent of that person's contact with the deceased.
(6) Except in a case where paragraph (7) applies, in a case where the deceased had one or more close relatives and the responsible person is a person to whom paragraph (1)(e)(iii) or (iv) applies, if on comparing the nature and extent of any close relative's contact with the deceased and the nature and extent of the responsible person's contact with the deceased, any such close relative was -
(a) in closer contact with the deceased than the responsible person; or
(b) in equally close contact with the deceased and neither that close relative nor his partner, if he has one, has been awarded a benefit to which paragraph 1(a) refers; or
(c) in equally close contact with the deceased and possesses, together with his partner, if he has one, more capital than the responsible person and his partner and that capital exceeds,
(i) where the close relative or his partner is aged 60 or over, £1,000; or
(ii) where the close relative and his partner, if he has one, are both aged under 60, £500,
the responsible person shall not be entitled to a funeral payment under these Regulations in respect of those expenses.
(7) [disapplies the results of (6) where a better-qualified close relative is a minor and was the only close relative.]
Amount of funeral payment
(1) Subject to paragraphs (4) and (5) [and provisions for income and capital deductions which are not here material], the amount of a funeral payment shall be an amount sufficient to meet any of the costs which fall to be met or have been met by the claimant or his partner or a person acting on their behalf and which are specified in paragraph (2), inclusive of any available discount on those costs allowed by the funeral director or by any other person who arranges the funeral.
(2) The costs which may be met for the purposes of paragraph (1) are -
[(a) and (b) set out the alternative allowable costs for a burial or a cremation respectively];
[(c) covers the cost of obtaining documentation necessary to release assets of the deceased which may be deducted from the funeral payment under regulation 8];
(d) where the deceased died at home or away from home and it is necessary to transport the deceased within the United Kingdom in excess of 50 miles to the funeral director's premises or to the place of rest, the reasonable cost of transport in excess of 50 miles;
(e) where transport is provided by a vehicle for the coffin and bearers and by one additional vehicle, from the funeral director's premises or the place of rest to the funeral and -
(i) the distance travelled, in the case of a funeral which consists of a burial where no costs have been incurred under sub-paragraph (a)(i) above [new burial plot with exclusive right of burial], exceeds 50 miles; or
(ii) the distance travelled, in the case of any other funeral, necessarily exceeds 50 miles,
subject to paragraph (4A), the reasonable cost of the transport provided, other than the cost in respect of the first 50 miles of the distance travelled;
(f) subject to paragraph (4B), the necessary cost of one return journey for the responsible person, either for the purpose of making arrangements for, or for attendance at, the funeral;
(g) any other funeral expenses which shall not exceed £600 in any case.
(3) All references in paragraph (2)(d) and (e) to 50 miles shall be construed as applying to -
(a) in a case to which paragraph (2)(d) applies, the combined distance from the funeral director's premises or the deceased's place of rest to the place of death and of the return journey;
(b) in a case to which paragraph (2)(e) applies, the combined distance from the funeral director's premises or the deceased's place of rest to the funeral and of the return journey.
(4) The cost of items and services which may be met under paragraph (2)(a), (d) and (e) shall not be taken to include any element in the cost of those items and services which relates to a requirement of the deceased's religious faith.
(4A) Costs shall only be met pursuant to head (i) of sub-paragraph (e) of paragraph (2) to the extent that the cost incurred under that head, together with the costs incurred under paragraph (2)(a)(ii) [cemetery fees], does not exceed the costs which would have been incurred under paragraph (2)(a)(i) and (ii) and, where appropriate, (e)(ii) if it had been necessary to purchase a new burial plot for the deceased with an exclusive right of burial in that plot.
(4B) Costs shall only be met pursuant to sub-paragraph (f) of paragraph (2) to the extent that those costs do not exceed the costs which would have been incurred in respect of a return journey from the home of the responsible person to the location where the necessary costs of the burial or, as the case may be, cremation, would have been incurred pursuant to paragraph (2)(a) or, as the case may be, (b).
[(5) Provides for deductions and limitations where there has been a pre-paid funeral plan or any analogous arrangement.]
(1) Payments may be made out of the Social Fund...
(a) of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, ...funeral expenses;
(4) In this section "prescribed" means specified in or determined in accordance with regulations.
By s175
(1) ...regulations and orders under this Act shall be made by the Secretary of State
(2) Powers under this Act to make regulations, orders or schemes shall be exercisable by statutory instrument.
(3) ...any power under this Act to make regulations or an order may be exercised -
(a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case;
(b) so as to make, as respects the cases in relation to which it is exercised -
(i) the full provision to which the power extends, or any less provision (whether by way of exception or otherwise),
(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case or different provision as respects the same case or class of case for different purposes of this Act,
(iii) any such provision either unconditionally or subject to any specified condition.
Right to respect for family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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 of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
article 9:
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
and article 14:
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Article 34, in the section dealing with the European Court of Human Rights, although not incorporated into UK law, has some relevance in determining whose human rights are involved. It reads
Individual applications
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.