Funeral Expense Assistance (Scotland) Amendment Regulations 2024: Fairer Scotland duty assessment summary

Summary of aims and expected outcomes of strategy, proposal, programme or policy

Introduction

The purpose of these amendment regulations is to introduce improvements to the Funeral Expense Assistance, which is more commonly known as Funeral Support Payment (FSP). The amendments will help support bereaved people by introducing changes that will make FSP more equitable. These changes will also future proof the regulations to allow FSP to be awarded for a funeral which involves alkaline hydrolysis and ensure the regulations reflect policy intent. The Scottish Government published their consultation analysis report on alkaline hydrolysis in April 2024.^[1] Alkaline hydrolysis is also available outside the UK and this change to regulations will allow FSP to be awarded, assuming all other eligibility criteria are met.

The improvements were identified following the publication of the FSP evaluation on 1 July 2022^[2] and through discussions with internal and external stakeholders. When FSP was first implemented in Scotland, DWP regulations for Funeral Expenses Payment (FEP) were largely replicated under the safe and secure approach to transition of legislation.

This Fairer Scotland Duty Assessment (FSD) has been developed to accompany The Funeral Expense Assistance (Scotland) Amendment Regulations 2024. The focus of this FSD is on the changes that these amendment regulations will make to FSP. This impact assessment builds on the suite of impact assessments that were produced prior to the launch of FSP.^[3][4][5][6]

A corresponding Business and Regulatory Impact Assessment (BRIA), an Islands Communities Impact Assessment (ICIA), an Equality Impact Assessment (EQIA) and a Children’s Rights and Wellbeing Impact Assessment (CRWIA) have also been produced. A Data Protection Impact Assessment (DPIA) was not required for this set of amendment regulations.

Policy Changes – Summary

We are introducing the following changes to FSP regulations:

• Allow full application of a reasonability test when a person has been buried or cremated outwith the area in which they resided, but the place of the funeral is in the United Kingdom, to allow reasonable costs to be awarded and a consistent approach regardless of where a person is buried or cremated.
• Extend provision to allow Funeral Support Payment to be awarded in exceptional circumstances if a funeral is held outwith the UK and an award is not allowable under current regulations. This provision will have no restrictions relating to the nationality of deceased or location of funeral, but costs will be restricted. Normal residency rules of the client being resident in Scotland and the deceased being resident in the UK, will be applied.
• To ensure citizens , who would have been entitled to support for funerals abroad (EU member states, Iceland, Liechtenstein, Norway or Switzerland) prior to 31 December 2020, when the implementation period (IP), following the UK exit from the EU ended, continue to be entitled. This group includes Irish citizens and EU/EEA or Swiss nationals who have obtained leave to remain in the UK by means other than the EU settlement scheme, and those who have applied under the EU settlement scheme and are awaiting a decision – the scope of this provision also captures joining family members in the first 3 months of residence.
• Introduce a change to deduct any available assets of the deceased, including assets available with confirmation and pre-paid funeral plans, that can be used for funeral costs from the award of Funeral Support Payment in all cases.
• Amend the definition of funeral to include provision for means of disposal of human remains by alkaline hydrolysis. The Scottish Government published their consultation analysis report on alkaline hydrolysis in April 2024.^[7] Alkaline hydrolysis is available outside the UK and the first funeral involving alkaline hydrolysis in Europe is understood to have taken place in Ireland in September 2023.

Policy Aims Summary

The aims of the policy changes being introduced are to:

• Make FSP more equitable: reasonability is applied to most aspects of a FSP award, however when the funeral is held outwith the area in which the deceased resided the costs are compared against the costs had the funeral been in the area where the deceased resided. This could disadvantage clients who choose or need to have a funeral outside the local authority area in which the deceased resided. The change is to remove the comparison for funerals in the United Kingdom and instead the reasonability test will ensure a consistent approach is used regardless of where the funeral took place and takes aspects such as religious beliefs and nearest funeral facilities into consideration. The cost comparison will continue to apply for funerals outside the UK. If a cost comparison cannot take place, for example there is no crematorium in the deceased’s local authority area, reasonability will apply based on the costs the client is likely to incur for that type of funeral in Scotland.
• Allow FSP to be awarded in exceptional circumstances when a funeral takes place outside the UK. This provision will support clients who are incurring unexpected costs for a funeral outside the UK. This provision will have no restrictions relating to the nationality of deceased or location of funeral, but costs will be restricted. Normal residency rules of the client being ordinarily resident in Scotland and deceased being ordinarily resident in the UK will continue to apply.
• Ensure that citizens who would have been entitled to support for funerals abroad (EU member states, Iceland, Liechtenstein, Norway or Switzerland) prior to 31 December 2020 continue to be entitled. This includes Irish citizens and EU/EEA or Swiss nationals who have obtained leave to remain in the UK by means other than the EU settlement scheme, and those who have applied under the EU settlement scheme and are awaiting a decision – the scope of this provision also captures joining family members in the first 3 months of residence. Current regulations do not bring EU/EEA/Swiss citizens who have taken another legal route, to enter and remain in the UK within the scope of Funeral Support Payment for a funeral in EU/EEA or Switzerland. Our proposed changes to regulations will ensure that EU/EEA/Swiss citizens, who arrived in the UK before 31 December 2020 and have a legal route other than the EU Settlement Scheme, have the same entitlement to a funeral in EU/EEA or Switzerland as persons with rights under the EU-UK Withdrawal Agreement.
• Ensure clients are treated equally by taking all available funds into consideration when calculating an award of FSP. Current regulations state that FSP cannot be awarded if assets of the deceased are sufficient to meet the costs of a funeral. To ensure this aspect is considered, Social Security Scotland set a figure for what is deemed sufficient to meet the costs of a funeral. This could disadvantage clients who live in areas where funeral costs are higher.
• By including alkaline hydrolysis within the scope of the regulations we can ensure we award FSP for a funeral where alkaline hydrolysis is used as a means of body disposal. Alkaline hydrolysis is available outside the UK, and we want to future proof our regulations in the event of alkaline hydrolysis being introduced in Scotland. The Scottish Government published their consultation analysis report on alkaline hydrolysis in April 2024.^[8] We may influence the client’s choice of funeral if alkaline hydrolysis is not specified within our regulations, and this is not the policy intent.

Background

The Scottish Government replaced the DWP Funeral Expense Payment (FEP) in Scotland with Funeral Support Payment (FSP) in September 2019. This is a one-off payment for eligible people on a low income to help towards the costs of a funeral. The benefit is intended to help alleviate the burden of debt clients may face when paying for a funeral and help to reduce funeral poverty.

FSP is made up of 3 parts:

1) burial or cremation costs,

2) a flat rate payment for ‘other funeral costs’ at either -

• the standard rate of £1,257.75 for other expenses for most clients; or
• £153.50 if the person who died had a pre-paid funeral plan

3) other costs can include travel costs incurred by clients; transport cost to transfer the body of the deceased and some document costs and medical costs

FSP targets support to bereaved individuals on a low income. The client, or their partner, must be in receipt of a low-income qualifying benefit. The qualifying benefits are used as a proxy for means testing and are also used to check other criteria such as identity and residency.

To meet FSP eligibility criteria, it must be deemed reasonable for the client, or the partner of the client, to have accepted financial responsibility for the funeral. The client does not need to be the nearest relative of the deceased if it is considered reasonable for the client to have accepted responsibility for the costs of the funeral. The application must be made within 6 months of the funeral taking place. This deadline can be extended by 20 working days if the client or their partner is in receipt of a backdated qualifying benefit, which falls within the 6-month application window and is also within 3 months of the client being informed of the backdated award.

Between launching on 16 September 2019 to 30 June 2024, more than 30,000 FSP applications have been authorised. Providing £51.1 million of support to almost 27,000 bereaved people at a time when they need it most, with £3.1 million paid out in the 2024/25 financial year.^[9]