Funeral Expense Assistance regulations: consultation analysis

Eligibility for Funeral Expense Assistance

While the overarching intention of FEA is to reduce financial and associated burdens on those most economically vulnerable families, the Scottish Government also wants to ensure that the process to determine eligibility and provide support is handled as sensitively as possible.

The intention is to reach more people with the benefit, improve the application process and make eligibility clearer to people in advance of application. As such, the Scottish Government has already committed to processing completed FEA applications within ten working days, responding to feedback that the current DWP process takes too long to reach a decision.

Prior to launch, the Scottish Government also plans to develop clear communications to ensure that applicants and the services that they come in to contact with are aware of the new benefit; the eligibility criteria; and how to apply for it. The second part of the consultation sought views on the application process, eligibility criteria and communications that would support delivery of FEA.

Applications

The application window for FEA opens on the date of the death of the person whose funeral is being arranged and closes six months after the date of the funeral. An application can be made at any point during that window.

Q4. Is the application window for FEA clear?

	Number	Percentage
Yes	31	76%
No	5	12%
No response	5	12%
Total	41	100%

Most respondents felt that the application window for the FEA was clear, and supported the extension of this window to six months (from the three month period that applied until 1 April 2018). It was generally felt that six months was a suitable timescale for the majority of claims, and that this would allow applicants to seek independent advice and support with the application process.

Despite the overall support for the application window, some respondents were concerned that there needed to be some flexibility over the deadline for submitting applications. They felt that late claims needed to be considered, either in exceptional circumstances and/or for the most vulnerable. One respondent also suggested that, should late claims not be considered, then the application window required to be extended as a safeguard for the most vulnerable.

It was also highlighted that some religious groups may find the application window difficult to accommodate. For example, it was suggested that, culturally, Muslim widows (women) may observe four months of mourning where they don’t leave the house. It was felt that extending the deadline for claiming up to one year after death would accommodate this.

It was also suggested that, in some cases, people may be unaware of the available benefits and/or their eligibility, which could impact on the timeliness of applications (and constitute a legitimate reason for the consideration/payment of late claims). Strategies were required for awareness raising, including promotional strategies to increase the uptake of all Scottish Government benefits, specific advertising campaigns for the FEA, and working with advice services and partner organisations to ensure the correct information is given to individuals:

“… it will be essential for the Funeral Expense Assistance to continue to be promoted as part of a Scottish Government benefits take-up strategy in order for individuals to be aware of their entitlement.”

“…the funeral director should be able to provide information as well as assistance on funeral payment application. The religious and community organisations, registrar of death office should also have information to provide assistance on funeral payment application.”

A few respondents questioned when the application process should/could be opened and closed, with some noting that, for some claimants there could be a delay in being informed of the death, for example, where the next of kin are in prison, or are travelling/uncontactable, or have diminished capabilities. In such circumstances it was felt that greater flexibility/fluidity in the application dates may be justified:

“The new rules could be clearer by stating the six-month window is open from the date of death or the date when the applicant has been informed of the death.”

While some respondents agreed that the application window should not/could not be opened before the death, others felt that in certain circumstances this should be considered. One felt that, where medical advice indicates a condition is terminal, and death imminent, allowing an early application could afford terminally ill patients some comfort, provide grieving families with a decision at an earlier stage, allow for funeral arrangements to be made sooner, and take an additional burden off of families upon the death itself. Anxiety around funeral plans and costs often commence before the date of death where terminally ill patients are concerned, and it was felt that these unique needs should be taken into consideration.

One respondent also noted that some religions, particularly Islam and Judaism, have particular cultural expectations around death, which may include a desire for the burial to take place within 24 hours after death. They had concerns, therefore, that the current draft and stipulated timescales could disadvantage such families as they will, on average, have less time to submit an application.

There was some confusion over the terminology used among those who attended the organised event, with many indicating that they did not understand the term ‘window’ and feeling that the language needed to be simpler, for example, using ‘time period’ or ‘length of time’ instead. Others at the event also appeared to be confused about the timing/purpose of the application window, with some respondents suggesting they understood this to mean they could not apply until six months after the funeral.

Other specific areas of concern and/or clarification sought by individual respondents included:

• why the assessment day is the day it is received rather than the day it is sent. This respondent felt that someone completing the paperwork cannot sign a declaration saying it is accurate if the day in question is in the future;
• whether the 'responsible person' would have to first enter into a contract with a funeral director before being able to claim; and
• whether an invoice would be required to submit a claim. This respondent felt that there was potential for an award to be made before the funeral takes place and hence before a funeral director has issued their invoice with the final amount.

Relationship to the Deceased

To be eligible, the person applying for FEA must be responsible for paying for the funeral, and is usually the nearest relative or friend of the person who has died.

Q5. We have proposed that the applicant must usually have the nearest relationship to the person who has died, and in exceptional family circumstances, such as estrangement, that they explain to Social Security Scotland why they should be considered to be the appropriate person who will take financial responsibility for the funeral. Do you agree with this approach?

	Number	Percentage
Yes	28	68%
No	6	15%
No response	7	17%
Total	41	100%

Again, most respondents agreed with this proposal, feeling it was appropriate in most circumstances. Some also noted that the proposed hierarchy used in the Burial and Cremation (Scotland) Act 2016 was helpful in such situations, with one respondent suggesting that parts 65(3) to 65(6) of this Act should be transposed into the FEA regulations to ensure ease of reference.

The main comments and concerns with this proposal focused on how strictly the hierarchy of relationships would be enforced, stressing that this may not always be appropriate, and queries around how ‘exceptional family circumstances’ would be defined.

Several respondents highlighted examples where the hierarchy would not identify the most appropriate person, or indeed the person who wished to take responsibility for the funeral. They noted that families can be complex and relationships can be complicated and fluid. For example, step-parents or kinship carers may take on the role of arranging a funeral for a child rather than an estranged parent, a partner of many years may not be eligible as the hierarchy might identify an estranged spouse, the parent of a young adult may not be eligible where the deceased had lived with a partner, a parent of the deceased wishing to arrange and pay for the costs of a funeral may not be eligible where there is an adult child, etc. It was also noted that, the eligible person based on the hierarchy may not want to arrange the funeral or pay for it, even where they were not estranged from the deceased.

One organisation also felt that ranking the partner, parent and children of the deceased, was problematic. Rather, they felt that these three relationships should hold equal weighting on the hierarchy list, with the individuals concerned able to choose between themselves who was best placed to organise the funeral, without having to evidence 'exceptional circumstances'.

Generally, it was felt that, while the hierarchy provided a helpful guide/starting point, there needed to be flexibility built into the regulations in relation to how this was applied in practice. Insufficient information had been provided around exceptional circumstances, it was felt, and the terminology could be adapted to be more flexible/inclusive:

“It is important that the bar for what is accepted as exceptional is not set too high and it may be that the word exceptional is replaced with a term such as ‘reasonable in the given circumstances’.”

Other aspects that were particularly welcomed, however, were the removal of the need to assess other family members financial circumstances within the application process, and the acknowledgement and eligibility of long-standing friends for the FEA. Although it was suggested by one respondent that, in relation to a child’s funeral the definition of “a friend of long standing of the child” should perhaps be extended to “a friend of long standing of the child or the child’s family”, others stressed the importance of allowing community leaders to apply where no family members were available (although some were concerned about how this would be defined/enforced).

Some respondents suggested that clarity was required around who would be responsible where more than one person was available within the same relationship category. Others queried how the responsible person would be selected if there was either a dispute within the family and nobody had entered into a contract with a funeral director or where more than one family member applied. One of these respondents also queried the status of those with ‘Power of Attorney’.

Some event participants suggested that paying the money to a member of the family was risky, as this person may not ultimately pay for the funeral. Rather they felt that the money should be paid directly to the funeral director (discussed more below); while the application should still be made by the family they felt there should be a section of the form for the funeral director to fill in so they can be paid directly.

Other comments made by separate respondents included:

• if the person eligible is under 16 (e.g. the child of a deceased single parent) then they should be, a) able to nominate another person as the main contact and, b) be automatically eligible for FEA;
• that clarity is needed that the person eligible for FEA does not have to be the person in contact with the funeral directors;
• that, while there was reference regarding the need to consider not only the applicant’s circumstances but also those of their partner in other parts of the consultation, this was not revisited in this section of the consultation document, but should have been;
• that the consultation covered eligible applicants in the case of a child’s death, but that it would be helpful to link this with the intention to remove the local authority/private provider charges for a child’s burial or cremation (and to also ensure that this is part of the promotion of the new FEA benefit); and
• that the proposals, as presented, risked fraudulent claims.

Again, it is important to note that the majority of respondents agreed with the proposals as set out and these views were offered by only a small number of individual respondents.

Residence

In line with the current UK system, an FEA applicant must be habitually resident in Scotland and the deceased person must have been ordinarily resident in the UK. Recognising the complexity of different family relationships and living arrangements, the Scottish Government welcomed feedback on the treatment of complex residency cases as part of the consultation.

Q6. We have proposed that applicants must be habitually resident in Scotland, and the person who has died must be ordinarily resident in the UK to qualify. Do you agree with this approach?

	Number	Percentage
Yes	29	70%
No	6	15%
No response	6	15%
Total	41	100%

Respondents were largely supportive of these proposals, and generally this was considered to be a reasonable and sensible approach which should not cause applicants too much difficulty as it was consistent with the requirements for the qualifying benefits.

It was felt by some respondents, however, that the language and terminology used may cause some confusion to claimants and may lead to misinterpretation and some inappropriate applications (and, therefore, refusals). Several respondents suggested certain terminology needed to be more clearly defined (i.e. ‘properly awarded’, as well as ‘habitually’ and ‘ordinarily’ resident), and that these definitions needed to be included within the regulations. Respondents also felt there was a need to have clear guidance for both decision makers and applicants around the residency tests:

“…the wording is very confusing and should be made clearer… it is a complex area and needed to be simpler, straight forward and made easy to understand as people involved will be going through emotionally challenging and distressing times.”

One respondent also noted that linking the habitually resident requirement to that used by the DWP for other qualifying benefits could lead to confusion over eligibility for FEA. They noted that the draft regulations state that an applicant must be “habitually resident in Scotland” in order to receive FEA, yet the consultation document also notes that “In practice, the residence conditions attached to each of the qualifying benefits or tax credits may be sufficient to establish Scottish residence.” It was felt that, as the DWP’s habitual residence test requires applicants to be resident within the Common Travel Area (UK, Republic of Ireland, Channel Islands or Isle of Man), this could cause confusion for those that have just moved to Scotland:

“There is the potential for this to cause confusion in relation, for example, to applicants who have recently moved to Scotland from another part of the UK. Such applicants might be habitually resident in the UK but have only just arrived in Scotland. We would suggest applicants should be habitually resident in the Common Travel Area and living in Scotland, e.g. as evidenced by having qualifying benefits registered at a Scottish address.”

Some also felt that the habitually resident requirement may be too restrictive, potentially excluding some individuals, such as students from elsewhere in the UK now living and studying in Scotland, those from elsewhere in the UK now living and working in Scotland but on temporary employment contracts, homeless people who are not claiming any qualifying benefits, and those left without a right to reside, for example, as a result of a relationship breakdown and/or domestic abuse or as a result of DWP error. Similarly, some respondents noted that care was required as to how eligibility is established for those who have moved to Scotland recently and/or temporarily to care for relatives, with concerns that this group would be in need of FEA but may not meet the habitual residence test.

Concerns were also expressed by some respondents about the eligibility of particular vulnerable groups. It was felt that the residence requirements would exclude refugees, asylum seekers, and families of illegal immigrants. It was also noted that appeals and Home Office decisions regarding the right to reside could take longer than the FEA application window, and that provision needed to be made for this. It was suggested by one respondent that, while the FEA may not be a suitable conduit for assisting such groups with funeral expenses due to social security and immigration rules, other avenues for support could be considered:

“…the Scottish Government has previously funded the Scottish Refugee Council's Destitute Asylum Seeker Service (DASS) to provide legal and accommodation support to persons subject to immigration control and, taking this into consideration, [we] suggest that the Scottish Government consider establishing a separate, independent fund to assist destitute asylum seekers with funeral costs, via the DASS.”

One organisation questioned the habitual residence test on similar grounds but additionally pointed out that the test is administratively burdensome:

“In our experience, the habitual residency test, which is used to determine habitual residence, is difficult to administer and decisions are often subject to challenge. It relies upon the applicant being able to demonstrate their right to reside in the UK, for example, by being in paid employment. Some vulnerable groups, including single parents who are unable to work because of caring responsibilities, as well as people experiencing homelessness can struggle to pass the tests or provide appropriate documentation to support their claim and risk being excluded from support under FEA.”

The same organisation commented that the ordinary residence criterion was also more restrictive in terms of who can access support compared to the existing UK wide benefit and that it could have negative consequences for Scottish local authorities, as a consequence:

“We are concerned that in such cases where a family is unable to pay for the funeral of someone who was not ordinarily resident before they were deceased has no assets then the cost would presumably fall to the local authority. This is an additional burden on already stretched local budgets.”

Another respondent also questioned whether the proposed residency requirements and reliance on qualifying DWP benefits was consistent with the aims and principles of the Scottish Government’s proposed anti-destitution strategy and work to mitigate the impact of UK Government ‘hostile environment’ policies.

Three respondents also discussed the difficulties around the exclusion of international costs. One issue related to the funerals of UK/Scottish citizens who had been resident abroad and the financial difficulty this could place on family members resident in Scotland. It was suggested by one respondent that consideration should be given to the possibility of awarding a fixed contribution for funerals of Scottish citizens who had either been resident abroad or were resident in Scotland but died while abroad and where the funeral takes place in the UK or abroad. The other issue raised related to the costs of repatriating a body from outwith the UK, with one respondent noting that many travel insurance policies have exemptions for deaths that occur as a result of excessive alcohol consumption or terrorist attacks. They felt that, if this could not be included with FEA, then perhaps a separate ‘Repatriation Fund’ was required.

Similarly, when this proposal was discussed at the consultation event, many respondents were confused about the differences between habitually and ordinarily resident and which applied to the deceased and applicant, as well as the exclusions and restrictions over what costs could be met. This included whether applications could be made for those resident and/or funerals taking place in Scotland versus the rest of the UK, for those resident abroad and needing repatriation (either to or from Scotland), for funerals taking place outwith the EU, for parents visiting children resident in Scotland and dying during the visit, etc.

Additional comments provided by individual respondents included:

• the need for consideration of family dynamics (where no agreement has been reached and family members are competing to lead the funeral arrangements) and discretion where two applications are made by relatives at the same relationship level; and
• the residency requirements being administratively complex to implement.

Qualifying Benefits

FEA is targeted specifically at those who are in poverty and those who may be tipped into poverty by having to pay for a funeral. To do this, eligibility will be dependent on the applicant (or their partner) being in receipt of specified UK Government benefits or tax credits.

One such benefit is Universal Credit (UC) but, in developing the regulations, it was felt that the monthly variations in UC payment calculation and entitlement may make it unclear to some potential applicants if they are able to apply for FEA. To reduce ambiguity, it was proposed that the eligibility test be extended over two months.

Q7. We propose that qualification by being in receipt of UC should be an award of more than £0 in the month before or the month in which the application is made. Do you agree with this approach?

	Number	Percentage
Yes	23	56%
No	9	22%
No response	9	22%
Total	41	100%

More than half of respondents agreed with this proposal and a further nine gave no response.

Among those who did not agree with this proposal, the main sentiment was that a two-month window was not long enough to give a true reflection of the claimant’s position.

Two organisations suggested that the extension be widened further to six months to provide a stronger framework to support the most vulnerable individuals who may be transitioning off of benefits and who may still be likely to experience funeral poverty. Two respondents suggested four months as a fairer extension period. In essence, given that FEA rules allow for applications to be made between the date of the funeral and up to 6 months after, it was suggested that greater flexibility to the UC criteria could be built in (i.e. beyond two months).

Two respondents raised the potential for some claimants to be overlooked by the proposed approach if two consecutive pays were received within one assessment period (due to 28 day pay periods of those paid early due to public holidays, etc.) This would leave them unable to claim FEA until the following month. This would be avoided if consideration was given to the month in which the claim was made and the month prior and would have the added advantage that it would negate people having to make a second application if the first was refused (also avoiding the additional administrative processing this would entail).

One respondent suggested there would be a need for retrospective assessment in the event that a £0 UC award was made which was later increased after appeal. Two others suggested that it needed to be clearer that this proposal applied to UC prior to any deduction or sanction having been applied (which may have resulted in the payment amount being zero).

Some respondents felt that this proposal had not been explained clearly enough in the consultation and that greater clarity was required (not everyone understands UC, it was suggested), while another commented that, while the commitment to extending the eligibility test had been included in the consultation, it was not in the draft regulations nor in the Social Security (Scotland) Act 2018. This may raise concerns about the stability of the commitment, it was suggested.

There was also some confusion around the wording/meaning of this question among those attending the organised event. Several did not understand the question, nor how the UC system worked, and others simply expressed that the proposal seemed unfair and may discriminate against those who worked but still had low incomes (especially young adults trying to pay for funerals of parents). Participants questioned why the eligibility criteria were not broader and also queried if it would be possible for someone to apply for UC after the death, in order to also qualify for FEA. A more general concern was also raised about people seeking other qualifying benefits in order to claim FEA, meaning that less money may be available for each individual overall.

Finally, one view was expressed that having UC as a qualifying benefit with no further qualification should suffice (since adding a qualification may cause some confusion), while another commented that people in receipt of certain benefits should automatically receive FEA.

Overall, despite some confusion around the UC system and some feeling that eligibility criteria should be widened, the two-month timescale for assessment was considered fair.

Q8. Is the qualifying benefit / tax credit eligibility clear?

	Number	Percentage
Yes	28	68%
No	6	15%
No response	7	17%
Total	41	100%

Again, most people felt that this proposal was clear and offered their support, and only six suggested otherwise, although there was also some confusion expressed among those attending the organised event.

In most cases people commented that, although the eligibility criteria were clear, they felt that the rules should be extended to account for exceptional cases where FEA may be appropriate, including those with very low incomes but who were not in receipt of benefits. Examples included students, homeless, prisoners, migrants, self-employed, people aged 60 or over (especially those on Single-tier State Pension), mixed age couples (where one is not eligible for Pension Credit), couples where the non-working partner is severely disabled, those living in care homes, those on parental leave and those on statutory sick pay:

“All that is fine as far as it goes, but what about persons who qualify for none of these benefits but has an income less than these benefit levels?”

The appeal process and tribunal system should be designed in such a way that Social Security Scotland can apply discretion in such scenarios, it was suggested, to also offer assistance to those without an alternative means of paying for the funeral of a loved one.

Others suggested that a wider range of additional benefits should render someone eligible, including:

• legacy benefits (such as Severe Disability Allowance or Incapacity Benefit);
• those in receipt of contribution based benefits in the last six months;
• Council Tax Support, Support for Mortgage Interest and Council Tax Reduction receipt; and
• people on Maternity Allowance, Statutory Maternity Pay, Carers Allowance, and Statutory Sick Pay (not just where the death was of the unborn/new born).

“We would request that you give further consideration to widening the qualifying benefit rule to include women in receipt of Maternity Allowance where they do not have a partner.”

Including these as additional qualifying benefits it was suggested would ensure that some of those most in need were not excluded. Indeed, one organisation suggested that having criteria that excluded some of the above may lead to some people who need to pay for a funeral seeking to switch their current benefit arrangements to UC specifically in order to qualify for FEA (leaving them worse off in the longer term).

One person suggested that including any working tax credit may be simpler to understand and be on a par with UC. Another suggested that someone who had previously been on a qualifying benefit but was technically no longer eligible because of the death (e.g. Working Tax Credit or Child Tax Credit) should still be considered eligible. One comment was made that under 16s (or under 18s) arranging a funeral should perhaps be eligible irrespective of their benefits or employment status.

At the event, some delegates expressed views that it should be the financial status/ benefit status of the individual who had died, rather than the claimant/living relatives that should determine eligibility for FEA. Others suggested that using benefits as a gauge was less fair than using other poverty indicators.

Two comments were also received about the application period for FEA and how an individual’s financial circumstances may change during that six-month period, meaning that greater flexibility may be needed. Again, while this had been indicated in the proposal documents, a more solid commitment to this kind of flexibility was needed in the regulations, it was expressed:

“Although the criteria are clear, we note that the period of application may be up to 6 months after the date of the death and this gives a period of time for a person’s circumstances to change as eligibility is determined at the time of application…the note on policy development states that it may be possible to make exceptions for the situation where a backdated award of a qualifying benefit has been made after the date of the FEA application window has passed. There is nothing in the draft regulations to reflect this policy intent.”

A solution was offered that paying for funerals as part of the Scottish Welfare Fund for emergency cases may prevent some people "falling between the cracks" under the proposed FEA:

“The issue of having an income which is marginally too high for entitlement, or not being in receipt a qualifying benefit, is addressed by the Scottish Welfare Fund guidance, which we believe should be applied to FEA regulations…The discretion about low income, is therefore a useful tool in identifying those who should benefit from FEA.”

Finally, one organisation highlighted that to be eligible for FEA, applicants must not only be eligible for one of the qualifying DWP benefits, but have 'been properly awarded' the DWP benefit. This raises a number of potential challenges, it was suggested, including cases where the person is eligible but has not claimed due to incapacity, not knowing they were eligible, or sanctions having been applied making them not qualify during the six-month FEA application window. Similarly, participants at the organised event sought clarity around whether someone could apply for FEA if they were eligible for the above benefits, but did not claim them.

A very specific cultural issue was also raised by attendees at the organised event. Some delegates pointed out that Asian culture dictates that a daughter is responsible for her mother and father and that a daughter’s husband might be working while she might not be on benefits but the husband may refuse to pay for her mother/father’s funeral. In such cases, there should be a means by which the daughter could apply for/qualify for FEA.

Overall, although the rules seemed clear, the main comments received indicated that more consideration needed to be made of people on low income/savings yet who are not on a qualifying benefit. Again, one comment was also received that a clear communication strategy was needed to ensure that accurate/accessible information is provided to the public regarding qualifying benefit/tax credit eligibility once FEA is rolled out.