Kerr v Department for Social Development

The House of Lords considered entitlement to a means‑tested funeral payment under section 134(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and the operation of regulation 6 of the Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987 (as amended). The court held that the statutory scheme is administered by an inquisitorial process: the department and the claimant must each supply the information they can reasonably be expected to provide. Where a disqualifying condition in regulation 6(6) is relied on, that condition is in the nature of an exception and, if the material facts to establish the exception are peculiarly within the knowledge of the department, the department must make proper inquiries. If the department fails to make those inquiries and the claimant has provided the information reasonably available to him, the department cannot defeat the claimant by relying on its own unexplored ignorance. Accordingly the claimant was entitled to the funeral payment.

The respondent, Thomas Kerr, had arranged and paid for his younger brother's funeral and claimed a funeral payment under section 134(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, relying on the eligibility criteria set out in regulation 6 of the 1987 Regulations (as amended). The Department refused the claim after initial administrative errors and, when obituary notices revealed other surviving relatives, treated the claim as potentially disqualified by regulation 6(6).

The principal issues before the House were (i) the nature of the decision‑making process for such social fund claims (adversarial or inquisitorial) and (ii) where relevant facts are unknown at the end of the inquiry, whether the burden of proof or consequence of ignorance falls on the claimant or on the department — in particular for the disqualifying conditions in regulation 6(6) relating to whether another close relative was "in closer" or "in equally close" contact and, if so, whether that relative was on qualifying benefits or had capital above prescribed limits.

The House analysed the statutory scheme and administrative procedure, emphasising the inquisitorial character of social security adjudication and the cooperative allocation of tasks: the department must ask the questions which it knows are necessary and the claimant must answer what he reasonably can. The court distinguished earlier authorities where specific burdens were placed on claimants or where statutory language expressly shifted the onus. The court held that paragraphs in regulation 6(3) and 6(6) are framed as disentitling exceptions. Where the department could, by reasonable inquiries using information it holds or can readily obtain (for example national insurance data), have established whether other close relatives were on qualifying benefits or had disqualifying capital, it was for the department to do so. On the facts the claimant had provided all information reasonably available to him and the department had not made inquiries it could and should have made; accordingly the department could not defeat the claim and the funeral payment should be paid.

Procedural posture: appeal from the Court of Appeal in Northern Ireland ([2002] NICA 32; [2002] NI 347). The House dismissed the Department's appeal and upheld the conclusion that the claimant was entitled to the funeral payment.

Appeal dismissed. The House held that the social fund decision procedure is inquisitorial rather than adversarial; regulation 6(6) contains disentitling exceptions and, where material facts relevant to those exceptions are peculiarly within the department's knowledge, the department must make proper inquiries. Because the department failed to pursue information it could reasonably have obtained and the claimant had supplied all information reasonably available to him, the claimant was entitled to the funeral payment.

[2002] NICA 32; [2002] NI 347 (Court of Appeal in Northern Ireland). Appeal to House of Lords dismissed [2004] UKHL 23.