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

3.1 New ‘exceptional circumstances’ provision

Currently only funerals held in the UK or, in certain circumstances, the EU, Iceland, Liechtenstein, Norway or Switzerland, can be eligible for FSP. The draft Island Communities Impact Assessment notes that there has been an application for FSP for a funeral which took place in the EU. The application met the general policy intention of alleviating funeral poverty but did not satisfy the current regulations, as the applicant was not exercising their right to freedom of movement as a worker or self-employed person in line with EU rules at that time.

Draft regulation 2(4)¹Inserting new regulation 9(3A) into the principal Regulations. will enable Scottish Ministers to award FSP where the deceased person’s funeral is held anywhere outwith the UK if they consider there to be suitable exceptional circumstances. In effect, this means that support could be provided with the cost of a funeral anywhere in the world, including funerals in the EEA where the applicant is ineligible under the current rules. Normal residency rules will apply. SCoSS welcomes this development, but notes that guidance on the sort of exceptional circumstances that will be considered as grounds for eligibility will be required.

Draft regulation 2(6)(d)²Amending regulation 13(5) of the principal Regulations. caps the burial/cremation and transport cost elements of an FSP award for a funeral held outwith the UK to the cost of a funeral in the local authority area in which the deceased person was ordinarily resident. This offers greater clarity than the previous wording (see discussion above). It is also legitimate to limit awards in respect of non-UK funerals when direct funeral costs could vary between countries and transport costs in particular could be much higher. This arguably helps ensure the sustainability and value for money of the scheme, in accordance with principle (h).³Principle (h): The Scottish social security system is to be efficient and deliver value for money.

However, SCoSS notes that it in the case of funerals outside the UK, it remains unclear how this regulation can be applied if no facilities for the preferred form of funeral exist in the relevant local authority area against which costs could be benchmarked. In the case of alkaline hydrolysis, which is available for funerals in countries including Ireland but not yet in the UK, an applicant could be seeking support with the cost of a funeral type for which no benchmark exists anywhere in Scotland.

In response to a question from SCoSS, the Scottish Government has explained that, in this kind of scenario, it would base eligible costs on a crematorium within a ‘reasonable’ distance of the deceased person’s place of residence and would envisage basing eligible costs for alkaline hydrolysis on actual costs in Ireland or anticipated costs in the UK. The Government plans to provide ‘robust guidance’ on how appropriate comparisons should be made.

This seems a pragmatic response to the problem, but it is not clear that it is one that the regulation permits. There might be merit in further revising the regulation so that it is legally certain that costs outside the deceased person’s local authority area can be used for benchmarking where necessary. For example, the regulation could stipulate the costs of the nearest practical provider where the service required does not exist in the area of residence, or simply require Social Security Scotland to award up to what would be considered reasonable costs for a funeral within either Scotland or the UK.

Recommendation 1: The Scottish Government should consider revising draft Regulation 2(6)(d) so that it is clear that the cost of a funeral outside the deceased person’s local authority area of residence can be used for the benchmarking of eligible costs for a Funeral Support Payment award where necessary.

3.2 EU Exit

Certain eligibility criteria in the current principal Regulations relate to the UK’s previous position as a member state of the EU; following the UK’s withdrawal these criteria need to be amended.

For funerals within the UK, and those outside the UK under the new ‘exceptional circumstances’ provision introduced by draft regulation 2(4), someone who is ordinarily resident in Scotland is entitled to FSP if they or their partner receives a qualifying low-income benefit, unless they are subject to immigration control and do not fall within a limited set of exceptions.⁴These exceptions are set out in the schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. The draft Regulations do not change this.

Draft regulation 2(4)(b)⁵Amending regulation 9(3) of the principal Regulations. does make changes to the rules on eligibility for support with the cost of a funeral in a large number of European countries⁶Specifically, any EU member state plus Iceland, Liechtenstein, Norway or Switzerland. when exceptional circumstances do not apply, solely in respect of a defined group of European nationals who were already resident in the UK before completion of the EU withdrawal process. Many of these individuals will have applied for and been awarded ‘settled status’, so that their access to FSP is now on the same basis as UK nationals (as described in the paragraph above). However, people with another lawful basis for residence in the UK (for example, Irish citizens who have a right to reside through the common travel area) may not have applied for settled status. The draft Regulations aim to preserve the pre-Brexit rights that such people had to assistance with the cost of a funeral outside the UK.

Draft regulation 2(4)⁷Amending regulation 9 of the principal Regulations. therefore substitutes the existing provisions in relation to status by virtue of the EEA regulations 2016 with new provisions. These aim to ensure that a person who would have been entitled to support with the cost of a funeral in an EU member state, Iceland, Liechtenstein, Norway or Switzerland prior to the UK’s withdrawal from the EU on 31 December 2020, or their partner, will continue to be entitled to FSP for funerals in those countries.

This change will ensure that individuals who would likely have been eligible for the EU settlement scheme, but did not apply for settled status, will not lose rights they previously held for reasons that are essentially bureaucratic. It is therefore arguably in keeping with the Scottish Government’s commitment to a rights-based model of social security and will certainly prevent affected individuals losing protection against funeral poverty, in keeping with principles (b)⁸Principle (b): Social security is itself a human right and essential to the realisation of other human rights. and (e).⁹Principle (e): The Scottish social security system is to contribute to reducing poverty in Scotland.

The draft Regulations referred to SCoSS included a drafting error in draft regulation 2(4), which the Scottish Government has said it will correct to ensure it is clear that the provision only confers entitlement upon an individual who was, or whose partner was, a person with entitlements derived from EEA citizenship prior to EU exit.

Some questions do arise from the application of different rules on when FSP may be awarded in respect of a funeral outside the UK depending on the applicant’s nationality. The Equality Impact Assessment appears to indicate that the new ‘exceptional circumstances’ provision, which potentially applies to funerals anywhere in the world and regardless of the applicant’s nationality, will largely be used if someone has died abroad unexpectedly, in order to avoid the cost of repatriating the body. EEA nationals covered by the amended version of regulation 9(3) of the principal Regulations, on the other hand, would be able to claim FSP in more routine, foreseeable circumstances, for example the fulfilment of the deceased person’s wish to be buried in their country of origin. It is not clear why UK nationals or people with settled status should not also be eligible in these circumstances. An EEA national might wish to be buried in their ‘home’ country, but if all their relatives in Scotland were UK nationals then no one would have an automatic right to seek a FSP – although consideration might be possible under the ‘exceptional circumstances’ provision.

It is possible to argue that it would be more equitable to extend eligibility to UK nationals and people with settled status paying for funerals in European countries on a par with long-term resident EEA nationals without settled status. The need to argue exceptional circumstances in order to access support could be an additional source of stress at an already-distressing time. To remove this requirement would arguably be in keeping with the Charter commitment to “support your wellbeing and make your contact with us as positive and stress-free as possible.”¹⁰‘Processes that work’, commitment 4. There might also be advantages to Social Security Scotland in the form of more efficient administration of claims, in line with principle (h).¹¹Principle (h): The Scottish social security system is to be efficient and deliver value for money.

On the other hand, the change made by draft regulation 2(4) applies to a specific, relatively small and gradually diminishing cohort of individuals who would enjoy similar entitlement to a Funeral Expenses Payment if they lived in England or Wales. Equity could also be achieved through clear guidance that a deceased EEA national’s wish to be buried in their country of origin constitutes sufficient exceptional circumstances for an award to be made under new regulation (3A) of the principal Regulations. In any case, widening UK nationals’ eligibility for support with the cost of a funeral abroad would have cost implications, which would have to be taken into account.

Recommendation 2: The Scottish Government should develop (non-exhaustive) guidance on what could constitute ‘exceptional circumstances’ under which Funeral Support Payment could be awarded in respect of a funeral outside the UK, in particular where the deceased person is a foreign national who wished to be buried or cremated in their country of origin.

In line with both the Our Charter¹²Social Security Scotland – Our Charter (www.socialsecurity.gov.scot) commitments to processes that work and a learning system, and Scottish social security principles (f)¹³Principle (f): The Scottish social security system is to be designed with the people of Scotland on the basis of evidence. and (g),¹⁴Principle (g): Opportunities are to be sought to continuously improve the Scottish social security system in ways which (i) put the needs of those who require assistance first, and (ii) advance equality and non-discrimination. it would be useful for the Scottish Government to monitor the impact of these changes.

Recommendation 3: As part of their ongoing evaluation and monitoring, the Scottish Government should gather such data as is required to monitor and assess the impact of the changes introduced through these regulations, with particular regard to take-up in respect of funerals abroad and the application of guidance on exceptional circumstances.