Does anybody have any suggestions about this really unfair scenario?!

I've been helping a client with a protracted HB contrived tenancy appeal which we have just won. Unfortunately the appellant died just before the decision was made. They had been paying as much rent to the landlord as they could afford throughout the appeal, but this was not enough to cover the contractual rent. Their daughter now wishes to claim a funeral expenses payment but there is a few thousand pounds due to the deceased’s estate, a portion of which is owed to the landlord to cover the shortfall. However, it seems that the residual amount will be counted as capital in the estate available to pay the funeral expenses.

This really seems unfair because they have been struggling to pay as much rent as possible throughout the appeal and had they not done so, or if the appeal had not been necessary, they would not have had this capital. Is there any possible way around this?

"....and had they not done so, or if the appeal had not been necessary, they would not have had this capital."

from that I gather that the capital is solely made up of arrears of Benefit - it use to be the case that arrears such as these were ignored for Benefit purposes for 12 months and, without looking it up, am assuming that this is still the case....but you'd really have to make enquiries.

Our local 0845 number for Social fund say that they would take it into account - however, was your client one of a couple - were they joint tenants and did they have a joint bank account into which this sum was paid? If so, does not 50% of the acct belong to the surviving partner?

Yes, no other capital other than arrears of benefit. Died intestate leaving no surviving spouse/partner but 2 children, one aged 15, the other 19. It's the 19 year old who is making the claim for the Funeral Expenses Payment. Unfortunately no joint accounts etc. Arrears to be paid direct to 19 year old's account as deceased's accounts have been closed.

I'll do some digging re 12 month disregard. Something I hadn't considered.

the 19 year old will, therefore, hold half of it in trust for his younger sibling (given that the parent died intestate and thus the children take equally in equally shares, i defer to Ariadne on probate/trusts though).

also, he needs advice on setting up said trust!

Don't worry, Probate department on the case! I'm wondering whether we could argue that because of the need to set up a trust, the money would only really be available with letters of administration and as such should not be taken into account and deducted from the award. (Or am I cluthing at straws?!)

I've checked the possible disregard of backdated benefit for 52 weeks, but come up against a brick wall with R(IS) 12/93.

"I'm wondering whether we could argue that because of the need to set up a trust, the money would only really be available with letters of administration and as such should not be taken into account and deducted from the award."

worth arguing surely .. the DWP do have to take account of law other than social security law, after all! and if your client can't access the money because it isn't his (another reason for it not to be paid into his account as well, of course...)

The problem is that the trust for beneficiaries only comes into effect once the debts of the estate have been paid; and the cost of the funeral is as a matter of law the very first liability of the estate. If it swallows up the whole estate - or if other debts do too (you know, fuel, bank, credit cards) then thre can literally be nothing left for the beneficiaries.

Nice try, then - but it won't run, The reason why the Social Fund has first call on the estate is precisely because the probate rules have this provision about paying for the funeral before anything else. It isn't in conflict with the underlying law.

whichh was why i defer to ariadne on such things....