The Funeral Expense Assistance (Scotland) Amendment Regulations 2024: scrutiny report

1.1 Overview

The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the draft Funeral Expense Assistance (Scotland) Amendment Regulations 2024 (henceforth referred to as the ‘draft Regulations’). The draft Regulations amend the Funeral Expense Assistance (Scotland) Regulations 2019¹The Funeral Expense Assistance (Scotland) Regulations 2019 (legislation.gov.uk) (henceforth referred to as the ‘principal Regulations’).

The draft Regulations set out five key changes to Funeral Support Payment (FSP):

1. Allow full application of a reasonability test when a person has been buried or cremated outwith the area in which they resided and the place of the funeral is within the UK.
2. Extend provision to allow FSP to be awarded in exceptional circumstances if a funeral is held outwith the UK and an award is not allowable under current regulations (assuming residency conditions are met).
3. Ensure a person who would have been entitled to support for funerals abroad prior to the UK’s withdrawal from the EU will continue to be entitled; this includes Irish citizens and EU/EEA or Swiss nationals who have obtained leave to remain in the UK by means other than the EU settlement scheme, and those who have applied under the EU settlement scheme and are awaiting a decision.
4. Introduce a change to explicitly deduct any available and accessible assets of the deceased person that can be used for funeral costs from the award of FSP in all cases.
5. Amend the definition of funeral so that financial support may be awarded for the disposal of human remains by alkaline hydrolysis.

The regulations relevant to each aim are examined in detail below.

1.2 Human rights and principles

As required by the Act, our scrutiny was undertaken with regard to the Scottish social security principles²Social Security (Scotland) Act 2018 asp 9 s 1. and relevant provisions of human rights law. Where particular changes made by the draft Regulations have an impact on the fulfilment of specific principles, human rights obligations or social security charter commitments, we highlight this in the sections that follow. At this stage, we make some general points.

The Commission notes that the draft Regulations and associated policy positions have been developed in consultation with the Funeral Poverty and Funeral Support Payment Reference Group along with various funeral industry stakeholders and Local Authorities. This means there has been an opportunity for input from stakeholders with relevant expertise, and who will be particularly affected by the draft Regulations. Efforts have been made to establish a firm evidence base for the Scottish Government’s proposals, in keeping with principle (f).³Principle (f): The Scottish social security system is to be designed with the people of Scotland on the basis of evidence.

While it would presumably have been possible to carry out further work with a view to developing the relevant policy ‘with the people of Scotland’, it would also be possible to question the proportionality of a widespread public consultation on what the Commission deems a largely uncontroversial set of amendments.