Kerr (AP) (Respondent) v. Department for Social Development (Appellants) (Northern Ireland)

The determination of entitlement to a social-security funeral payment is a co-operative and inquisitorial process. The department must ask the questions needed to decide entitlement and make reasonable use of information available to it. The claimant must answer honestly and, so far as reasonably possible, provide facts within the claimant’s knowledge.

Strict burdens of proof will rarely be decisive. If material facts remain unknown, the consequence ordinarily falls on the person who failed to take reasonable steps to obtain them. Under regulation 6 of the Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987, the basic qualifying requirements are distinct from the provisions which disentitle a claimant because of a more suitable relative. The department bears the consequence of collective ignorance concerning such an exception where it failed to seek information that it could obtain.

Thomas Kerr, a disabled man receiving benefits, accepted responsibility for his estranged brother’s funeral and paid the expenses. He claimed a funeral payment under section 134(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

The Department refused the claim. A social security appeal tribunal and a commissioner upheld that refusal, holding that Mr Kerr had not shown whether his other estranged siblings received qualifying benefits. The Court of Appeal in Northern Ireland, by a majority, reversed that decision: [2002] NI 347; [2002] NICA 32.

The Department appealed. The central issues were the nature of the benefits-determination process and the consequences where information relevant to regulation 6(6) was unavailable.

1. Appeal dismissed unanimously. Baroness Hale delivered the leading speech. Lords Steyn, Hope and Rodger agreed with it, and Lord Scott agreed with its reasons as well as giving an additional reason. Mr Kerr was entitled to the funeral payment.

2. Per Baroness Hale, social-security adjudication is not ordinary adversarial litigation. It is a co-operative investigation. The Department knows what information it needs and must ask the appropriate questions. The claimant must provide information reasonably within the claimant’s knowledge and answer the questions as fully as possible. The Department must take reasonable steps to obtain information available to it, including through its records.

3. On the facts, Mr Kerr supplied all the information he possessed once the error in the form was identified. The Department could have sought sufficient identifying information to investigate whether the other siblings received qualifying benefits or had relevant capital. It did not do so. It could not rely on that failure to defeat the claim.

4. Baroness Hale held that regulation 6(3) and regulation 6(6) of the Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987 are disentitling exceptions to the basic conditions in regulation 6(1), read with regulation 6(5). If reasonable inquiries by both sides still leave a matter unknown, the party relying on the exception bears the consequence. Lord Hope reached the same result, describing the enquiry as fact-gathering rather than adversarial and treating the statutory exceptions as matters for the Department to establish.

5. Baroness Hale also accepted that it had been reasonable for the claimant, as the eldest brother who had grown up with the deceased, to accept responsibility despite their long estrangement. She expressly left open whether persons with no contact for 20 years could be described as being in equally close contact under regulation 6(6). Lord Scott would additionally have held that they could not; Lord Hope took a different view on the temporal scope of contact. That issue was not necessary to the result.

• House of Lords: dismissed the Department’s appeal and upheld the claimant’s entitlement to a funeral payment: [2004] UKHL 23.
• Court of Appeal in Northern Ireland: by a majority, reversed the commissioner’s decision, holding that the Department bore the burden concerning the other relatives’ benefit and capital position: [2002] NICA 32; [2002] NI 347.
• Social security commissioner and appeal tribunal: upheld the refusal of the claim, treating the claimant as responsible for establishing the relevant circumstances of the other siblings.