Funeral Expense Assistance regulations: consultation analysis

Request for a Re-determination

Timescales for requests

Re-determination provides the right for an individual to ask that any determination is looked at again if they think Social Security Scotland has not made the right decision. Unlike existing DWP arrangements, the Scottish Government proposed that, in such cases, a fresh determination would be made, rather than a review of the original decision. It would also be made by a different, independent officer. Any request for a re-determination would, however, require to be made within 31 calendar days of an individual being notified of the determination (the original decision).

Q11. We have proposed that requests for an FEA re-determination should be made within 31 calendar days of receipt of notification of the original determination.

	Number	Percentage
Yes	31	76%
No	4	10%
No response	6	14%
Total	41	100%

Almost all respondents agreed with this proposal with only four offering views against. Those who did not support the proposal indicated that the re-determination period should be longer, with suggestions that it be extended to six weeks or even up to three months. The extension would help people to better deal with administrative demands placed on them during the grieving period (including any need for translation of documents and sourcing relevant papers from abroad, etc.):

“This would enable individuals to gather and submit further evidence, as well as being able to seek and receive independent advice if they need it.”

At the organised event, some commented that this point was particularly salient for those in communities who may choose to travel outside of the UK in the aftermath of a death, to visit wider family/friends, the risk being that people who were out of the UK might miss a letter determining the outcome of their FEA application, and would only receive the letter on their return to the UK, by which time it may be too late to request a re-determination. It was also suggested that there might be technological ways to reduce the possibility of this issue occurring, such as using text alerts or email in addition to hard copy letters to advise applicants of outcomes.

Others who supported the proposal also provided the caveat that there should be flexibility to allow the timescales to be extended in exceptional circumstances (especially where delays have been introduced by third parties). One organisation specifically highlighted that reference to ‘calendar days’ was unclear and that a less jargonistic and more easily understood reference point would be number of weeks or working days. The term ‘re-determination’ may also be confusing for some, it was suggested.

One organisation suggested that it was difficult to reconcile the 31-day approach with the proposal that an individual may make an FEA application at any point within the 6-month application window. The six-month window was seen as necessary given that personal circumstances may be subject to change following the death of a loved one, and was seen as being flexible and welcomed. Unless the 31-day re-determination period also remained open for the same six-month period (and given that a re-determination will not be a re-examination of the original decision, but a fresh consideration of the FEA application) this flexibility may be counteracted:

“If the closing of the re-determination window has no bearing on an individual’s eligibility to make a new FEA application, we have no issue with this proposal. However, if it is the case that an applicant whose circumstances genuinely change will be prevented from making a second application simply because the re-determination window for an earlier application has closed, this would seem unjustifiably unfair.”

Another organisation expressed a view that this would only be acceptable if re-determination could be considered at any point up to a year after being notified of the original determination, where good cause could be established.

On a more general note, one organisation expressed a view that the whole re-determination process should become part of a single appeal process:

“Our suggestion is where a person appeals a decision that there is an option for the decision maker to reconsider their decision. However, in absence of a favourable revision the matter would then progress to an appeal without further action required from the claimant.”

Others simply offered support for the proposed re-determination process, welcoming in particular that a different independent officer would undertake the full process of making a new determination. In the main, this timeframe was considered to be proportionate and consistent with other benefits^[3].

Timescales for processing

The regulations set out that, on receipt of a request for a re-determination of entitlement to FEA, Scottish Ministers should have 15 working days to make a fresh determination. This period is to be counted from the next working day after Social Security Scotland receives a re-determination request in the format required by it.

Q12. We have proposed that a FEA re-determination should be processed within 15 working days of receipt of a request. Do you think that is an acceptable time period?

	Number	Percentage
Yes	30	75%
No	5	11%
No response	6	14%
Total	41	100%

Again, most respondents agreed with the proposed timescales for FEA re-determinations to be processed, i.e. within 15 working days of receipt of a request.

Some suggested that the timescales should be extended, with one respondent suggesting 20 days as an alternative, comparable to other statutory response timescales. Some of those attending the event also suggested 31 calendar days was a more suitable time period.

In contrast, several others suggested that a shorter period may be more appropriate, and suggested 10 days, the same as the commitment to process applications in that timescale (one participant at the event simply suggested that re-determinations should be made as soon as possible). Shortening the re-determination period was seen as particularly important given that claimants in these cases will already have waited for the original decision to have been made, and would require certainty as soon as possible:

“We believe a re-determination should be treated with at least the same level of urgency as an initial application.”

Some suggested that the shorter time period was necessary to reduce undue stress and anxiety for claimants at a difficult time, and was thus better aligned with the Scottish Government’s policy intentions.

Overall, there was perhaps a lack of clarity as to why initial applications could be processed in 10 days, while re-determinations would take 15 days and there was some concern about the lack of clarity in the wording of this proposal in general. One organisation sought clarity around whether eligibility would be assessed based on the same day as the original application and one questioned what would happen in the event of delays in getting support evidence or paperwork. Another noted that, whilst mentioned in the consultation document, these provisions do not appear directly in the draft regulations, and so clarity was sought on the intention to add them. Finally, one comment was received that, while the commitment to process applications in 10 working days was supported, the Scottish Government should be encouraged to publish data regularly to show the percentage of applications processed on time.

Other Comments

Although not directly answering any specific questions within the consultation, several comments were made by respondents that funeral costs have been increasing in the UK, above the rate of inflation, for a number of years. One respondent suggested that this has resulted from a number of external factors, including:

• a scarcity of cemetery resources;
• a land shortage for new graves, particularly in urban areas, driving up costs for scarce burial sites;
• a rise in demand for crematories, as a consequence of the graveyard shortage, which has driven up crematoria costs;
• changes made to the death registration process, prolonging the period between death and confirming funeral arrangements; and
• an increase in the prevalence of adult obesity, which has required funeral directors to invest in new equipment (hoists, wider trolleys and refrigerators, deeper, more expensive coffins, etc.).

Other changes to consumer behaviour which may have also impacted on increased costs include:

• longer waiting periods being sought before the funeral takes place, often resulting in additional, complex treatment of the body and longer periods of support for grieving families;
• a shift away from religious services, towards a greater use of civil celebrants, which can cost more; and
• a growing demand for bespoke, personalised and therefore more expensive services.
  

Finally, costs have risen as a result of third-party ancillary costs, it was suggested, including increases in cemetery interment fees and crematoria fees. All of this needed to be considered by the Scottish Government in deciding flat rate payments for FEA now and in the future, and ongoing monitoring of charges from local authorities and private companies was also needed, it was suggested.

One organisation also commented that there had been no opportunity in the consultation to comment on the removal or otherwise of the lower of the two flat rates, although there was an intention to retain that rate for those who have made certain arrangements for covering most or all of their costs:

“This section of the consultation narrative is ambiguous, and assumptions made appear to be weak; the rationale for retaining the rate is ultimately not clearly stated. This should therefore be revisited.”

The same respondent expressed disappointment that there were no questions which related to the consultation narrative on payments to cover transport costs:

“There is an assertion that this is a complex payment area and lack of clarity on how it works in practice and therefore that the emphasis of a new approach should be on better communication on entitlement. Whilst improved communications are a good intention this area should be bolstered by a commitment to review arrangements in due course, say after three years.”

It is also important to note that some strong views were expressed on behalf of those working in the industry which suggested that many of the statements in the consultation lacked robust foundations and seemed to lack substance when considering the actual contents of the draft regulations. There was a perception that some earlier contributions to the development of the draft regulations had been selectively ignored and that the Scottish Government had not consulted widely enough with those in the industry. A very specific contention was raised against the statement that there would be no additional enforcement, sanctions or monitoring of the services provided by funeral directors, burial and cremation authorities or any other businesses that supply funeral services to FEA applicants. While this assertion appeared to suggest that there will be no new burdens for businesses, local government or the third sector generated by these regulations, this was queried since the ongoing review by the HM Inspector of Funeral Directors (an independent ministerial appointment) was still ongoing and no firm conclusions had been reached around funeral director regulation or licensing, the prospect of increased charges and provisions placed onto funeral directors. The findings from the HMI review need to be considered alongside the promises made in the FEA consultation, it was suggested.

There were also some questions that related to specific minority ethnic communities which the consultation had not perhaps addressed, including:

• whether the FEA could be used towards the cost of sending a body abroad;
• if extra charges for next day/weekend burials that are imposed by local authorities would be met (which was especially important for those following Islamic traditions); and
• if the premiums for single interment plots needed for Muslim burials would be covered by FEA.

A final general point was also raised that the consultation had, in parts, been difficult for some respondents/participants to understand and this pointed towards a need for careful consideration for any future FEA documents, forms, communications, etc. to be prepared in easy-read and accurately translated versions. It is also important that the Scottish Government keeps providing updates to support workers and community champions about FEA as the system is introduced, it was suggested.

On the whole, however, respondents seemed content that the consultation was clear and that there had been scope to provide feedback on both the specific proposals and the wider policy intentions.