Just picked up a case where a funeral payment was refused because the claimant, who was deceased's partner, is not being accepted as such because it was an incestious relationship - claimant was deceased's niece as well as his partner. Won at tribunal, but SoS appealed on basis that unlawful relationship could not be recognised for benefit purposes. Tribunal chairman set aside decision without matter going to commissioner - even though SoS had not quoted any law to back up the assertion. DM has produced supplementary submission for the new hearing - again, no law is quoted. Any one know of any legal principles - social security or general - which address this issue?

Any other thoughts? My initial thoughts are that the sexual realtionship is the only illegal part of the relationship, and as sex is only one of a number of aspects which determine whether a couple are LTAHAW for benefit purposes then there is a strong factual argument to support a LTAHAW ruling.

Hmm, so the DWP are saying they cannot recognise unlawful relationships for benefit purposes. So when couples claim IS are qustions asked and checks made to see if the relationship is lawful? I suspect not, particularly as it could cost the DWP more to pay out on 2 claims for single people than 1 claim for a couple. It would be worth asking how such a stance is implemented with regards to all benefits, not just funeral payments where money can be saved by such an approach.

Also are the DWP saying that they don't believe there was a relationship becasue the couple were related, or that they accept there was a relationship but cannot treat him as being her partner becuase the relationship was unlawful?

was the relationship unlawful? marriage between neice and uncle is forbidden under scottish law, but i don't think it is under english law - i'm no expert on this. you can find some guidance in aog 14121 and it refers to the Marriage Act 49 and Marriage (Prohibited Degrees of Relationship) Act 86.

did the funeral expenses claim _crucially_ rely on the partnership relationship?

any idea why a set aside was given instead of consideration of leave to appeal to the commissioner?

is a 'no relationship because they were related' argument scraping the bottom of the barrel? why did the appeal submission not quote any regs - was it written by a fraud officer?

Sex between an uncle and his niece is an offence under section 27(2)of The Sexual Offences Act 2003.

In England a man may not marry his own brother or sister's daughter but there is nothing in law to prevent him marrying, say, his ex-wife's niece.

No offence will be committed if uncle and niece co-habit and refrain from sex. Many marriages/partnerships are bonafide and genuine where the partners have embraced celibacy.

Partner in the SF Regs defines a partner as a member of a married or unmarried couple. As far as I can see there is nothing unlawful about an uncle and niece being a couple as long as they don't marry. Even if they had sex, they would still, in my view, be a couple.

my mind is boggling at the idea of the DWP insisting that someone maintaining they were an unmarried couple was not an unmarried couple...

a posthumous not - LTAHAW situation in connection with a funeral expenses claim must be a first!

i seem to recall a dirty joke about the cadbury's milk -tray man, but can't remember the words...

there is a well established principle of common law that a person cannot benefit from their unlawful actions - in this case, the relationship was unlawful and therefore, under common law, the claimant cannot benefit from the relationship.

Would there be any grounds from moving away from the claim as partner and to look at claim on grounds that they were close friend and it was reasonable for them to accept responsibility for the funeral costs.

the relationship of uncle and niece is not an unlawful relationship. uncle and niece cannot legally marry. they did not do so in this case.
sex between uncle and niece is a sexual offence.
there is nothing to prevent a non-sexual relationship between uncle and niece.
a sexual relationship is not determinative of an LTAHAW relationship for the purposes of social security legislation.

the 'responsible person' for funeral expenses may be the
(i) the partner of the deceased;
(ii)an immediate family member of the deceased, and it is reasonable for him or her to accept responsibility for the funeral expenses;
(iii) a close relative of the deceased and it is reasonable... etc
(iv) a close friend...and it is reasonable etc.

it will be a feat of engineering to show how a payment for funeral expenses is benefitting from an unlawful action.

perhaps it's worth adding that the job the public thinks it pays social fund officers for is to pay funeral payments as quickly as possible where the claimant satisfies the conditions of entitlement to the payment.

they have a duty to process claims fairly and impartially, and decision-making should be objective.

undoubtedly, they will have to make payments to people they may not like or approve of. this is quite immaterial, and their personal likes and dislikes, opinions and biases matter not one jot. unless they interfere with their ability to make decisions fairly and impartially.

human decency requires that claims from bereaved persons are dealt with urgently and with compassion.

when decision-makers appear to approach claims, not from a neutral position of 'is this claimant entitled or not entitled?' but from 'can i refuse this person's claim', the public can have no confidence in the ability of the DWP to apply a non-discriminatory policy, (act lawfully) or that it will not abuse it's power.

but perhaps the 'public' in general, will not know about it?


jj