Draft guidance on funeral costs consultation: analysis of responses

Impact Assessments

Equality Impacts

The consultation document highlighted the legal duty placed on public bodies (via the Equality Act 2010) to have due regard to the need to: eliminate discrimination; advance equality of opportunity; and, foster good community relations in relation to the relevant protected characteristics^[11] with the exception of marriage and civil partnership. Equality of opportunity is also identified in the document as a founding principle of the Scottish Parliament. As such, the consultation document asked respondents to identify any potential impacts the current proposals may have on those with protected characteristics.

Q21. Please tell us about any potential impacts, either positive or negative, that you consider the proposals in this consultation may have on people who may be differently affected in relation to the protected characteristics.

Overall, most respondents failed to identify any potential impacts, either positive or negative, on people with protected characteristics. Indeed, around half either did not respond to the question or indicated that there were no potential equality impacts. Several respondents again simply acknowledged that any guidance which sought to improve access to affordable funerals was universally positive, and welcomed any proposals which may reduce stresses (financial or otherwise) for people at a time of dealing with the loss of a loved one:

"There is a potentially positive impact as the proposals would create a system without barriers, with the same options for funeral services available to all citizens…"

Some who provided comments, while not related specifically to protected characteristics, suggested that the proposals would assist those struggling financially/on low incomes, while others felt that the guidance would bring benefits to the whole population by providing transparency and greater clarity, thus empowering people to understand and compare costs. One respondent, however, suggested that the development of wider understanding of the funeral industry may be required in order to avoid greater confusion over costs:

"Providing the public with figures without background knowledge or understanding of the bigger picture, for example health and safety regulations which may lead to purchasing new equipment or long-term sick leave incurring additional overtime charges, may lead to further confusion."

A few commented that it was too early to provide an informed assessment of impacts, and others noted that they did not feel sufficiently knowledgeable to comment in this regard.

Only a few respondents identified any possible impacts of the proposals on people with protected characteristics. The main such comments focused on faith groups and religion. One respondent noted that some faith groups may require urgent burials and so families may have less time to consider any information presented to them by burial or cremation authorities or funeral directors. This reinforced earlier comments that any information should, therefore, be as accessible as possible. However, another noted that the increased flexibility in relation to permitting disposals without funeral director intervention may also be of benefit to some faith groups who have non-standard requirements (i.e. a positive impact of the proposals).

Several respondents also highlighted that certain rituals, ceremonies, and spiritual practices associated with death were important to take into account, and as a consequence it is likely that some inevitable additional costs would be accrued by people from certain religions/beliefs/faith groups (including, as noted above, that the simple funeral may not accommodate specific cultural or religious needs):

"The definition [of a simple funeral] proposed by the Scottish Government, which is very similar to the NAFD's previous definition, risks indirectly discriminating against certain religious and cultural groups - and also restricting the choices and ability of families to arrange a funeral in line with the wishes of the deceased person… Encouraging funeral directors to offer a standardised service that fails to meet the basic requirements of all of the United Kingdom's major religious and cultural groups would send out a negative message to these communities and risks placing them at an unfair disadvantage in terms of finding affordable funeral options."

One organisation suggested that specific guidance or advice for faith groups may be helpful/required.

One organisation also commented that women, more than men, may be responsible for organising funerals, given that female life expectancy is higher across the UK. This may mean that they are affected more by the proposals in general.

It was also suggested by one respondent that the elderly and those with lower socio-economic means may find it more difficult to access the required information, particularly information provided online:

"There are also certain groups of people who may not have internet access such as elderly consumers and those in lower socio-economic groups… even if the information is made available online, consumers may not avail themselves of the information or be able to access it."

Further, another respondent felt that those with protected characteristics could be poorly informed due to social norms around the lack of discussions about death and dying:

"People don't talk about death and dying… so people with protected characteristics will be doubly poorly informed."

There were suggestions from two respondents that the guidance should provide greater information and encouragement for 'green funerals' and one respondent urged that consideration be given to the funeral poverty experienced by migrants and traveller communities, especially with regard to their limited eligibility under the proposed Funeral Expense Assistance. A further two respondents felt that the draft guidance was fundamentally flawed as it relied on advice from funeral directors who were not seen as impartial, but rather as having a financial interest in the development of the industry.

Business and Regulatory Impact Assessments (BRIAs)

The consultation document also outlined that Business and Regulatory Impact Assessments (BRIAs) are conducted to assess the likely costs, benefits and risks of any proposed primary or secondary legislation, voluntary regulation, codes of practice, or guidance that may have an impact on the public, private or third sector. The Scottish Government's initial assessment of the proposals was that they would not directly impose any new regulatory burdens on the public, private or third sector as they were intended as guidance only. However, the consultation document sought views regarding any potential business or regulatory impacts which may arise.

Q22. Please tell us about any potential business or regulatory impacts, either positive or negative, costs and burdens that you think may arise as a result of the proposals within this consultation.

Again, in relation to business or regulatory impacts many respondents failed to identify any potential impacts, either positive or negative, or costs and burdens that may arise from the proposals presented. Nearly two thirds of respondents either did not answer the question or indicated that the proposals would have no significant business impacts.

A few respondents indicated potential benefits of the proposals. These included the view that providing transparency to the public was commendable, and that the provision of clearer information on costs from the outset may assist in reducing the prevalence of 'bad debt'. The proposals may also lessen the impact on National Assistance burials, it was suggested.

The main comments linked to business impacts, however, focused on additional burdens and potential for increased costs. For local authorities, these were linked mainly to costs being incurred due to the need to consult on price changes, and/or to provide an advice and support service to those clients that are struggling to pay, thus requiring additional staff time and resources. One respondent noted that there may also be potential additional resource implications for both local authorities and undertakers in explaining costs and supporting and accommodating specific family wishes.

Some respondents also highlighted potential impacts related to the proposal that "local authorities should be encouraged to take actions to support individuals who are struggling with the costs of a funeral". Again, for many this was linked to the cost implications for local authorities absorbing this responsibility, with one respondent calling for any new costs to be fully funded by the Scottish Government, and another suggesting that current budget constraints would not allow local authorities to provide any additional financial support.

One respondent was concerned that subsidising local authority burial and cremation services could lead to a reduction in investment and a decline in infrastructure. Another was concerned that any extension of the scope of local authority responsibility beyond support with costs, i.e. to provide funeral services directly, would have a significant detrimental effect on the viability of local funeral service businesses and their suppliers. One respondent, however, felt that local authorities should perhaps offer a basic state-run service, with the option to sub-contract when necessary.

One respondent also discussed concerns that smaller funeral directors may find it difficult to reduce their costs in the way large firms/franchises might. They worried that this may affect small local businesses who have more personal relationships within their communities.

Other respondents identified specific areas of confusion or potential impacts, including:

• terminology used in the guidance not matching existing contracts;
• new standardised services not matching existing pre-paid packages;
• the need to itemise each aspect of the service could lead to clients changing their minds regarding which options to include/exclude. It was felt that the timing of such change requests could be problematic for providing optimal results and thus detracting from perceptions of the professionalism and ability of the firm;
• itemised costs would need to be flexible enough to allow further disaggregation of specific costs, e.g. where a sub-contractor provides a service and an admin fee is charged and different rates of VAT are added to each;
• the requirement to display price lists at offices was seen as unnecessary when administrative offices are located separately from burial grounds/crematoriums;
• in relation to burial and cremation, one respondent questioned if it would be appropriate to consider multiple interments in communal areas as a way of helping with the reduction of land available for burials;
• public health risks and damage to cremation chambers were also cited as risks associated with 'DIY funerals';
• there were concerns that the variety and complexity of requirements were not fully understood and that many other parts of the required legislation were still in their infancy, therefore meaning that it was impossible to offer guidance on costs at this time;
• concerns were raised over the development of inappropriate business models developing ahead of the proposed changes to the legislation. It was felt these services often offered "no gravitas or dignity from the outside and no over watch"; and
• questions were raised over the legality of the proposed guidance.

Finally, one respondent felt that, while making information about costs available was generally a good thing, the geographical make up of Scotland may ultimately mean that people will not have much choice regarding who/where they go to arrange a funeral.

Other Comments

A small number of comments were received in response to various questions throughout the consultation which were either cross-cutting or did not answer any particular question asked. Other comments were provided by some organisations in support of their formal response, and these are summarised here.

As set out above, some funeral provider organisations commented that they perceived the provision in the Burial and Cremation (Scotland) Act 2016 for Scottish Ministers to publish guidance on the costs associated with making arrangements for a funeral, had not been achieved by the current exercise. Specifically, the draft guidance appeared to be more for the profession than for the public, which they deemed was not appropriate:

"De facto the draft guidance being consulted on is potentially inappropriate and out with the remit of the Act. Therefore [organisation] would ask for an immediate clarification to this vital issue."

These respondents understood that the guidance was not statutory, but indicated that, as the guidance will be laid before parliament, it would receive the gravitas of such legal documents, and could, therefore, be a miss- or re-interpretation of the primary legislation, forcing price control onto the profession. Further clarification by government legal counsel was requested around this issue. Two suggested that it may risk the unintended consequence of increasing the cost of funerals, as a result (and be seen as inadvertent market interference):

"…many funeral directors may feel obliged to comply with all of the recommendations in the guidance which may in turn, increase funeral costs. This is especially applicable around the 'simple funeral' in its current form, as defined in this consultation paper, as the proposed ability to upgrade and add additional services may be seen to imply that the 'simple funeral' should be the entry level standard funeral and not a restricted service funeral package offered at a discounted charge. If that interpretation was to be adopted by funeral directors generally, the cost of a 'simple funeral' would undoubtedly increase to accommodate the proposed definition and conditions suggested in this draft guidance paper."

One organisation responding on behalf of the private sector noted that, although the draft guidance had been developed for those in the industry, there may be merit in developing a form of the guidance specifically aimed at a consumer audience, potentially in partnership with consumer groups.

While several other respondents noted that they generally welcomed the opportunity to respond to the consultation, and the invitation that had been extended by the Scottish Government to engage during the production of the draft guidance, some commented that gaps remained. Specifically, one respondent noted that there had been no opportunity in the consultation to comment on burial costs and, specifically, there had been no recognition of:

• ongoing capital costs linked to replacement for cremators/ abatement system;
• ongoing costs linked to cemetery capacity and the need to continually extend existing or build new cemeteries;
• ongoing investment required for cemetery infrastructure (paths, roads and walls); and
• ongoing costs associated with headstone inspection programmes and repairs where lair holders cannot be traced.

Each of these are currently funded through bereavement charges and this required some form of explanation, it was suggested.

Another commented that the links between cost and quality had not perhaps been explored in sufficient detail in the draft guidance or consultation, and that concentrating on cost alone may mean that service standards could fall as an unintended consequence.

The importance of ensuring that the guidance did not constrain product innovation was also highlighted.

Linking the guidance to other ongoing and recently completed guidance, research, consultation or legislation in the area may also be useful, it was suggested, e.g. exploring overlaps with the Funeral Expense Assistance legislation, the ICCM Charter for the Bereaved - Guiding Principles for Burial and Cremation, giving regard to the work of the Competition and Markets Authority around funeral price comparisons and the UK Government's (HM Treasury's) call for evidence on pre-paid funeral plans. It was important that the guidance did not repeat, duplicate or contradict other guidance, it was stressed, especially not the forthcoming statutory Code of Practice being developed by the Scottish Government:

"We are also concerned that parts of the draft costs guidance for funeral directors, which imply a certain required level of standards, risk overlapping, and potentially contradicting, the statutory code of practice that is being developed by the Scottish Government."

One national organisation also suggested that there may be scope for the Scottish Government to support the sharing of best practice between local authorities and others in the funeral industry. This may be something to comment on further in the guidance.

One final respondent communicated their more general concerns that families, friends and loved ones should not be picking up the costs a funeral system which they perceived "neither has to justify its costs, price increases or moral ethos of celebrating the life in death of those departed." The consultation would do nothing to challenge this wider concern, they suggested.