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Neutral Citation Number:	2010 UKUT 220 AAC
Reported Number:
File Number:	CIS 2147 2007
Appellant:	RM
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	01/07/2010
Date Added:	03/08/2010
Main Category:	Human rights law
Main Subcategory:	article 14 (non-discrimination)
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 8. Human rights – funeral payment – whether statutory scheme discriminatory contrary to Article 14 of the Convention in case of Jewish funeral The claimant, who was a solicitor, was an executor of the will of the deceased and took responsibility for the funeral arrangements. The deceased was Jewish but at the time of his death was not a member of a synagogue or burial society. At the time of death it was not clear whether the estate had sufficient funds to pay for a funeral, but Jewish law required a prompt burial and the local synagogue authorities agreed that he would be buried in their cemetery according to orthodox Jewish practice. In the event the estate was insolvent. The claimant made a late claim for a funeral payment under section 7 of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005. The Secretary of State refused the payment. The claimant appealed. The tribunal found that he was the responsible person and that it was reasonable for him to accept responsibility for the funeral expenses but dismissed the appeal because he was not in receipt of one of the means-tested benefit listed in regulation 4. The claimant appealed further. Before the Upper Tribunal it was common ground that, subject to arguments about irrationality and human rights law, the claimant could not be entitled to the payment as the domestic legislation and regulations stood. His contention was that the funeral payments scheme as made under sections 138(1) and 175 of the Social Security Contributions and Benefits Act was irrational because it had not provided for a personal representative to be eligible for a payment in the case of an insolvent estate or allowed for an appropriate exemption from the qualifying benefit requirement or that there had been a breach of Article 14 when read with Article 9 because the scheme had a disproportionately prejudicial effect on a particular group defined by religion. Held, dismissing the appeal, that: 1. the funeral payments scheme is provided under the authority of social security legislation to help alleviate financial hardship in relevant cases and is a rational workable scheme, made within the authority of the legislation, albeit with limitations and exclusions, which may be frustrating but that comes nowhere near affecting the validity of the regulations (paragraphs 54 and 55); 2. the operation of the scheme engaged Article 8 (the right to respect for private and family life) (Esfandiari and Others v Secretary of State for Work and Pensions [2006] EWCA Civ 282, reported as R(IS) 11/06) and Article 9 (the freedom to manifest religion or belief) but did not breach either Article (paragraphs 61 and 63); 3. there was no direct discrimination as the statutory scheme applied to people of all religions and no religion alike and there was nothing in the scheme that prevented the burial of the deceased in accordance with his religious views (paragraph 66 to 68); 4. it was clear that in relation to entitlement to a payment from the social fund for funeral expenses, the claimant was treated differently from the way in which a person who was entitled to one of the qualifying benefits would have been treated but there is only discrimination for the purposes of Article 14 if the difference in treatment does not pursue a legitimate aim or is disproportionate to the aim pursued (paragraphs 69 to 71); relative wealth is not one of the “suspect” grounds listed by Lord Hoffman in paragraph 15 of R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 and in the present case the difference in treatment was not demeaning to the claimant and did not deprive him of entitlement to equal respect, but it did require rational justification, and that consisted in the policy of the State to focus financial assistance on those of more limited means, which policy had been implemented in a proportionate manner (paragraph 72).
Decision(s) to Download:	[2010] AACR 8 ws.doc