DP v Secretary of State for Work and Pensions [2013] UKUT 40 (AAC) (23 January 2013)

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Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference SC228/11/02935, made on 30 March 2012 at Sunderland, did not involve the making of an error on a point of law.

Reasons for Decision

1. Mr P made a claim on the social fund in respect of the funeral expenses for his late mother on 24 June 2011. She had died on 9 June 2011. The Secretary of State refused the claim on 8 July 2011. That decision was confirmed by the First-tier Tribunal on 30 March 2012, but the tribunal gave Mr P permission to appeal to the Upper Tribunal. The Secretary of State has not supported the appeal and Mr P has replied. The case is now ready for decision.

A. The law

2. The relevant law is contained in regulation 9(10) of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 (SI No 3061):

Where items and services have been provided on the death of the deceased under a pre-paid funeral plan or under any analogous arrangement-

(a) no funeral payment shall be made in respect of items or services referred to in paragraph (3) which have been provided under such a plan or arrangement; and

(b) paragraph 3(g) shall have effect in relation to that particular claim as if for the sum of £700, there were substituted the sum of £120.

B. The facts

3. Before Mr P’s mother died, a plan was taken out with Age UK. At the time of her death, this had not been fully paid. I am not sure whether this was because Mr P’s mother died before the plan was fully paid up or because future payments were cancelled. For the purposes of this appeal, it does not matter which is the case.

4. Although all the instalments had not been paid, Age UK met the full costs of the funeral and then wrote asking for the balance of the plan contributions. There was a discount for early settlement. This was in accordance with the terms of membership:

If you choose to pay for your Age Concern Funeral Plan by instalments but die before all the instalments have been paid, we will provide the funeral in accordance with these terms but your Personal Representative will be responsible for paying the total of outstanding instalments at the time of the funeral.

5. Age UK explained in a letter to the tribunal dated 4 July 2012 that the family had the option to pay up the plan or receive a refund:

When a funeral plan is in place and there is an outstanding balance, the family have the option either to cancel the plan, receive a refund and make arrangements with the funeral director or alternatively, on agreement to pay the amount outstanding on the plan we will honour the guaranteed services provided by the plan.

The writer then confirmed that the family had signed to pay up the plan. In his reply to the Secretary of State’s submission on the appeal, Mr P has denied that the family was given this choice. However, the fact that Age UK paid the funeral director is confirmation that the family did take that option.

C. The appeal

6. If the plan had been fully paid up, there could be no doubt that regulation 9(10) applied. The issue identified by the judge who gave permission was this: does it makes a difference that the plan had only been partly paid? Having considered the evidence, I do not agree that that is the issue. The family chose to retain the plan and pay the remaining instalments. In those circumstances, there was a plan in place. That is the only reason why Age UK met the cost of the funeral. I do not know whether the outstanding balance had been paid before Age UK paid for the funeral. But that does not matter. The fact is that there was a plan in place that Age UK accepted as being fully paid. It paid the costs on that basis. It accepted the commitment to pay the balance as sufficient to honour the plan. The plan was pre-paid for the purposes of regulation 9(10).

7. The judge who gave permission also pointed out that the full cost of the plan exceeded the cost of the funeral. The fact that the cost of the plan exceeded the cost of the funeral does not make a difference. Regulation 9(10) applies if the costs are met from a plan. The price that has to be paid for the plan is not relevant. Moreover, as the Secretary of State’s representative has pointed out, Age UK gave the family the option of paying up the plan or paying for the funeral themselves.

Signed on original
on 23 January 2013

Edward Jacobs
Upper Tribunal Judge

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	Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> DP v Secretary of State for Work and Pensions [2013] UKUT 40 (AAC) (23 January 2013) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2013/40.html Cite as: [2013] UKUT 40 (AAC)

Upper Tribunal (Administrative Appeals Chamber)

A. The law

B. The facts

C. The appeal