Funeral Expense Assistance regulations: our response to consultation

Q1 – Do you think that the draft regulations are likely to meet the policy intent?

Yes – 29

No – 5

Not Answered - 7

Respondents were largely supportive of the policy intent, however, the main counter view expressed was that the set payment amount was not adequate when considering the actual costs of burial or cremation.

The Scottish Government has widened FEA eligibility by 40% and is investing around £2 million each year above the funding expected to transfer from the UK Government to support this. There are significant financial constraints on the Scottish Government’s budget and we believe that at present, the additional investment is best used to widen the eligibility to support more people who need it and who would receive nothing from the UK Government at present, rather than increase the £700 flat rate part of the payment when the benefit is introduced. We have already committed to uprate the value of any relevant figures in the FEA regulations annually to take into account the impact of inflation. This requirement to uprate will apply to the £700 flat rate element of FEA and will mean that this will increase in 2020/21. We will continue to keep the payment amount under review in the future.

Q2 – Can you identify any potential unintended consequences of the regulations?

Yes – 15

No – 20

Not Answered - 6

Key themes highlighted included:

1. Payment amount – it was suggested that stress and debt may continue to affect people on low income due to the gap between the payment amount and the cost of the funeral. This may include circumstances where there are differences between an early estimate and a final invoice.

2. National Assistance Funerals – it was suggested this type of funeral may increase if families are unable to agree who should lead on arranging a funeral.

3. Additional travel costs – differing views were offered here; one person suggested that uncapped additional travel could be open to misuse, while another suggested these travel costs may help those living in rural areas.

4. Relationship to the deceased – there was some concern that complex family relationships had not been fully considered and applicants eligibility could be rejected on these grounds.

5. Family contributions – there was concern that if it was known that a person was in receipt of FEA then family members could be less likely to help contribute to the funeral costs.

6. Testing - FEA should be fully tested before the benefit goes live.

On the issue of:

1. Payment amount – this is addressed at question 1.

2. National Assistance Funerals – as set out in the Business & Regulation Impact Assessment (BRIA) the Scottish Government does not expect this model of FEA with eligibility widened by around 40% to result in additional National Assistance Funerals for local authorities.

3. Additional travel costs for the deceased over 80kms will continue to be supported, in certain circumstances. The Scottish Government had considered replacing this with a flat rate but lack of available data on the current payment meant that it was not clear whether this would disadvantage certain groups, for example people living in rural areas.

4. Relationship to the deceased – is addressed at question 5.

5. Family contributions – No deductions will be made from an FEA payment where there have been contributions from family, friends, or charities to help with funeral costs. Deductions will continue to be made where the person who had died has assets (for example cash in a bank account) that would be used to help meet funeral costs. Advice for applicants and advisors will be set out nearer the time of the benefit going live to ensure there is a clear understanding of this policy.

6. Testing of FEA – We are continuing to develop the business processes which will allow people to access and receive FEA. We are continually testing and evolving designs with individuals and organisations to make the application process as user-friendly as possible. We will use this and future research as we continue to develop the process to deliver FEA.

Q3 – Can you identify any gaps in the Regulations?

Yes – 17

No – 17

Not Answered -7

1. Key themes highlighted included: Payment amount - many respondents again commented on the amount of the payment. One respondent suggested that a coffin should not to be funded from the flat rate contribution for other funeral costs but instead be funded from the burial or cremation element, while another respondent suggested a new element to cover ceremonial costs.

2. Payment method – one respondent suggested the payment should be guaranteed to funeral directors, while another respondent suggested the payment be made available into Post Office accounts and not just bank or credit union accounts.

3. Widening eligibility – several comments were made about further widening eligibility to include other low income groups.

4. Communication – it was highlighted that the success of FEA would be determined by people being aware of the benefit and knowing how to apply.

5. Residency – there was a concern this does not appear to take account of an applicant who is homeless. There was also concern that if an applicant moved home to provide care and then their new residency status would affect their eligibility.

On the issue of:

1. Payment amount – this is addressed above at question 1.

2. Payment method – this is addressed at question 9.

3. Widening eligibility – this is addressed at question 8.

4. Communication – building on the Social Security (Scotland) Act 2018 framework for a social security system that is founded on dignity, fairness and respect, Scottish Ministers are committed to supporting people to access their full entitlement. Scottish Ministers will be required to prepare a strategy to promote benefit take up, including for FEA.

5. Residency - this is addressed at question 6.

Q4 – Is the application window for FEA clear?

Yes – 31

No – 5

Not Answered - 5

The majority of respondents felt the application window was clear, and supported the move doubling the application period to 6 months (from the 3 month period that applied until 1 April 2018). Although there were concerns about late applications, and the effectiveness of communications to raise awareness.

Respondents were in favour of the proposed timescale, and having considered this further, we believe that having a 6 month application period after the funeral will provide enough time for an FEA application to be submitted. However, we have responded to feedback to make provision in the regulations to allow for late award of a qualifying benefit in certain circumstances.

As noted above, Scottish Ministers will be required to prepare a strategy to promote benefit take up, including FEA, which we expect will help people who are eligible for FEA to understand that they are entitled and apply within the application window.

Q5 – New ‘nearest relationship test’ to the person who has died.

Yes – 28

No – 6

Not Answered -7

Most respondents agreed with this proposal and suggested the relevant sections of the Burial and Cremation (Scotland) Act 2016 be transposed into the FEA regulations for clarity. 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. 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.

We understand the current system asks questions that are intrusive and distressing, and where applicants may not have access to the information required. We had already proposed to use the Burial and Cremation (Scotland) Act 2016 hierarchy at s65 and 66 in response to feedback from stakeholders.

We recognise the complex nature of family relationships highlighted in consultation responses and it is for this reason we have not included provisions in the regulations that must apply to all cases, but have instead retained flexibility to consider individual circumstance and set out the principles about how this will operate in guidance for both client advisors and clients. Only one FEA payment will be made per funeral and the regulations include provisions about how cases will be considered where multiple applications for the same deceased person.

Based on feedback from our research with people with experience of the present system, we have changed our policy so that if the nearest relative of the person who has died is 16 or 17 years old they will be removed from the hierarchy for FEA, unless they explicitly request to take responsibility for the funeral. Removing these young people from the hierarchy will potentially allow other family members to receive an FEA payment.

Q6 – Residence.

Yes – 29

No – 6

Not Answered - 6

Respondents were again largely supportive of these proposals, and generally this was considered to be a reasonable approach. Some considered that the habitual residence requirement may be too restrictive, potentially excluding some individuals e.g. people who are homeless.

Despite broad support, on working through the practical implications, we have adapted our consultation proposals to make the process simpler and more accessible for applicants. Those on a qualifying benefit will have to demonstrate only ordinary residence in Scotland. This is a lower threshold than habitual residence and reflects the

fact these applicants have already met stringent residency criteria in relation to their qualifying benefit.

Q7 - UC award of more than £0 in the month before or the month in which the application is made.

Yes – 23

No – 9

Not Answered - 9

The majority of respondents agreed with this proposal. However, some concerns were raise about reliance on UC, for example the fluctuation of applicants UC eligibility throughout the application period of FEA; and the confusion that may surround UC itself. As a result it was suggested that further clarity was needed to clearly communicate eligibility based on UC.

The policy has been updated in response to the consultation so that our proposal is set out more clearly.

While we recognise that fluctuating income will have an effect on UC award levels, including the month before the application is made in eligibility, the applicant will know whether their award is more than £0 at the time when they apply and the reason for that.

As a result, where a UC award of £0 has been made because an applicant’s income is too high they would not be eligible for FEA at that time. However, we have changed our policy so that where an applicant has had their award reduced to £0 because of a sanction or debt recovery, the applicant will still qualify for FEA.

In combination with the 6 month application window, this gives applicants the option to choose when they apply so that they can qualify, or potentially re-apply if their financial circumstances change within the application period of FEA.

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

Yes – 28

No – 6

Not Answered - 7

The majority of the respondents agreed this proposal was clear, many also commented that eligibility should be extended further to account for exceptional cases where

FEA may be appropriate. This included to people with very low incomes but who are not in receipt of benefits, or who are in receipt of an alternative low income benefit.

We have sought to design the eligibility criteria for FEA so that it reaches as many of the groups identified by stakeholders as possible. At the same time, in certain cases, we have decided not to change eligibility because it would reduce the targeting of FEA on people who are on lower incomes and / or add a disproportionate amount of cost and complexity to processing.

Q9 – Payments to funeral directors.

Yes – 34

No – 2

Not Answered - 5

The majority of respondents agreed with this proposal, including the need for applicants to have choice about who is paid. However, some responses questioned the need for the applicant to consent to the payment being made to the funeral director.

The Social Security (Scotland) Act is clear that assistance to individuals can be given in a form other than money only if the individual (or someone acting for the individual) agrees to the assistance taking that other form. The consultation paper proposed to continue with the presumption that, where there is a bill outstanding and the applicant consents, the payment will be made directly to the funeral director. Where the bill has already been paid, the payment will be made to the applicant. 83% of respondents supported this approach and so the Scottish Government will design a payment process for FEA on this basis. Any FEA payment being made directly to the applicant will be made payable in the format that they would normally receive their benefit payments for example, into their bank or post office account where those arrangements are already in place.

Q10 - No deductions from the payment award where there are assets in the name of the child who has died.

Yes – 35

No – 0

Not Answered - 6

All respondents who replied to this question agreed with this proposal. It was also suggested that it was important to link up policy communications, for example the removal of local authority burial and cremation charges for children aged under 18.

FEA will not make deductions where the child had assets in their own name and we have increased the upper aged limit for this to include support for funerals for children aged 16 and 17. This is consistent with the Scottish Government and COSLA agreement to remove child burial and cremation charges.

As a result of not applying these deductions this will potentially increase the amount of the FEA for the funeral of a child and we are also working to streamline the application process for the death of a child, as we want to make this as straightforward as possible for families to complete. Our intention is to support people who are already facing particularly difficult circumstances following the death of a child.

Q11 – We have proposed that requests for and FEA redetermination should be made within 31 calendar days of receipt of notification of the original decision.

Yes – 31

No – 4

Not Answered - 6

Timescales for proposed redetermination requests and processing were largely supported, although some would prefer a longer request period for applicants.

The period of 31 calendar days to request a redetermination is consistent with the timescale provided to applicant’s seeking to bring an appeal to the First-tier Tribunal. We believe the concerns raised by some respondents have been partly addressed as re-determinations can be requested up to 1 year after receipt of the original determination if there are ‘good reasons’ for lateness. The Agency will take a supportive role during this process and will assess every request individually, on a case by case basis.

New evidence does not need to be submitted in order to request redetermination; this will be gathered (if required) when the Agency is undertaking the redetermination. Guidance will be provided to help people better understand the redetermination process, their rights and the support the Agency will make available.

Q12 – We have proposed that a FEA redetermination should be processed within 15 working days of receipt of a request.

Yes – 30

No – 5

Not Answered - 6

Again, most respondents agreed with the proposed timescales to have FEA redeterminations processed within 15 working days of receipt of a request was acceptable. However, some would prefer a longer time period suggesting 20 or 31 days, while another applicant suggested this should reflect the 10 day processing of the original decision period.

We have clarified that the timescale will now be 16 working days and will be clearly explained to applicants as will their appeal rights which are triggered when the Agency breaches the timescale. We believe the timescales balances the operational needs of the Agency whilst ensuring applicants do not have an unduly long wait for a response. The Agency will take a proactive role in ensuring that it has the necessary evidence to make a new decision.

Q13 – Do you have any additional evidence or impacts which are not covered in the EQIA or CRWIA.

Yes – 16

No – 12

Not Answered - 13

Impacts were identified for the following groups of people:

1. race - asylum seekers and individuals subject to immigration controls.

2. disability & age -

a. physical disability or elderly who may face –

i. additional transport costs linked to their condition;

ii. recognition of appointees or Power of Attorney;

iii. accessible format of information & application, e.g. BSL, audio, braille, and easy read versions;

b. learning disabilities – persons may face additional challenges in applying for a qualifying DWP benefit.

3. gender – adverse impact of poverty on women.

4. gender reassignment & sexual orientation – need to ensure the policy and process in no way discriminate.

5. religion or belief - these funerals may face additional funeral costs that are to be funded from the £700 contribution for other funeral costs.

Other impacts -

6. effective communication support – e.g. different languages, and different formats to engage.

7. homeless person.

8. communities with low benefit take up due to stigma of claiming any benefits.

An Equality Impact Assessment has been published alongside the FEA regulations.

Q14 – Do you have any additional evidence or impacts which are not covered in the draft BRIA?

Yes – 8

No – 16

Not Answered - 17

Impacts on businesses were identified for the BRIA as:

1. Payment amount – the main issue raised was the concern about the level of award and the impact this has, not only on the applicant but also on the business from which the goods or services are purchased. It was again suggested that a coffin should not be funded from the flat rate contribution for other funeral costs but instead be funded from the burial or cremation element, and suggested a new element to cover ceremonial costs.

2. Burial or Cremation costs – it highlighted the draft regulations do not address the disparity in costs across Scotland.

3. Ability to shop around – it was suggested that people in rural areas face lack of competition and as result may face higher costs.

4. Clear communications for FEA – this was suggested should highlight FEA is payment and not a loan.

A Business Regulatory Impact Assessment has been published alongside the FEA the regulations.