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Funeral Payment

Ben
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The Welfare Consultancy, London

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Clmt incurred burial costs for the plot £6500 - the deceased was buried in the same cemetery as his parents.

The DWP allowed £1525 for the plot - the reason given was;
   
    “The expense claimed is necessary but the amount incurred is not reasonable or is only partly necessary;

Am I correct that there is no test of reasonableness when looking at the amount claimed for the plot?

Does anyone know of any caselaw as to the what is meant by “the NECESSARY cost of a new burial plot”

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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Forgive me for asking, but was there a reason the plot cost so much? It does seem extremely expensive.

Ben
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The Welfare Consultancy, London

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High demand for the cemetery with limited spaces.

1964
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Goodness… well, in that case I think it has to be a ‘reasonable’ expense. They can hardly expect his family to bury him somewhere else- contrary to his expressed wishes- just because it’s cheaper.

Gareth Morgan
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1964 - 28 October 2016 01:12 PM

They can hardly expect his family to bury him somewhere else- contrary to his expressed wishes- just because it’s cheaper.

I should like my ashes to be scattered on the moon.

Elliot Kent
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See these two seemingly contradictory - but equally unfavourable to your client - decisions from Commissioner Rice

R(IS) 14/92 at paragraph 10 (because public funds are involved, the word reasonable is to be implied even where not written)

R(IS) 18/98 at paragraph 8&9 (the word “necessary” implies costs will be kept to a minimum - but that doesn’t mean the cheapest grave must be picked without regard to any other factors)

 

1964
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Gareth Morgan - 28 October 2016 02:07 PM
1964 - 28 October 2016 01:12 PM

They can hardly expect his family to bury him somewhere else- contrary to his expressed wishes- just because it’s cheaper.

I should like my ashes to be scattered on the moon.

Good point. I suppose it depends on what other cemeteries in the area charge and how off whack it is in comparison..

Ben
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Further to my original Post, my client asked for a MR – the decision was not changed.

The DWP state that the closest cemetery to where the deceased lived charges £1525 for the plot and interment “SUBJECT TO A 25 YEAR LEASE” after which the right to exclusivity is lost, unless a further payment is made.

My client purchased a plot with perpetual exclusive use for £6500.

I will be looking to argue that Regulation 7 makes provision for a perpetual purchase of a plot with exclusive use and when looking at whether the cost is “NECESSARY” the comparator is a plot of the same tenure.

Is anyone aware of previous authorities on this point?

Am I on the right track?

[ Edited: 18 Dec 2016 at 10:58 am by Ben ]
Elliot Kent
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Your post raises some interesting points which are not covered by authority so far as I can see.

I think there is a need for clarity on some terms. Generally speaking, nobody “purchases” a burial plot - in the sense of having the freehold or leasehold conveyed to them. The plot remains the property of the cemetery owner which is usually the local authority.

Securing the burial site is via a deed granting “Exclusive Rights of Burial” on the purchaser. A deed of this kind permits the holder to decide who can be buried in the plot for the duration of the deed. A local authority cemetery cannot grant an ERB of any more than 100 years so could not grant ERB in perpetuity (article 10 of the Local Authorities’ Cemeteries Order 1977).

You need an ERB initially so that the deceased can actually be buried in the plot. But once they are there, they are there. They can’t be exhumed from the plot simply because the ERB has expired. The purpose of renewing an ERB would be to keep the site available for further use by the family or to prevent stranger burials occurring above the deceased. 

In that context, I think the regulations only provide for the purchase of an ERB which is long enough to effect the burial. That is the necessary expense to ensure that the deceased is buried in their own plot. A longer ERB is, I think, sensibly viewed as an optional expense. In any case, if the comparator is a local authority cemetery then it would be impossible to put a price on an ERB in perpetuity because they can’t legally grant one.