Pauper-bashing?

Charles Cowling

FREE-1

 

FREE FUNERALS HERE!

I bet you’ve never seen a banner outside your local registrar’s office with those words on it.

Because the free (aka public health) funeral is, if not a well-kept secret, not something councils bang on about. Its minimalist aesthetic might make it irresistibly attractive to the middle classes.

Seriously, the public health funeral enables us to absolve ourselves of the task of disposing of the body of kinsperson for whom, for whatever reason, we feel no responsibility, whether or not they did or didn’t, could or couldn’t, put aside enough money to pay for their funeral.

The public health funeral also enables those of us of limited means to say: I haven’t got the dough and I don’t want to get into debt over this; you do it. In these days of ‘funeral poverty’ the public health funeral offers a lifeline for an increasing number of people. Here at the GFG we always invite people of limited means to consider it — so much better than falling prey to a loan shark. The overall number of people who opt for it remains strikingly low, however. It doesn’t yet present a fiscal threat to austerity-stricken councils… but it could if more people knew about it. So it has to be in the interest of a local authority to dissuade people from availing themselves of a public health funeral. More anon. Stick with it.

The legal responsibility on a local authority to dispose of its dead is contained in the Public Health (Control of Disease) Act 1984 PIII S21. It states:

It shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority.

You notice that the Act only uses the word ‘duty’ in respect of the local authority. What about the duty incumbent on the next-of-kin? Is there such a thing?

Well, yes and no.

There is a common law ‘duty to bury’. Because it’s common law it’s not written down and its origins lie somewhere in the mists of time. In 1840 Chief Justice Denman passed this this judgement:

“We have no doubt … that the common law casts on someone the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose.”

Oh right, m’lud, and who might that someone be?

“It would seem that the individual under whose roof a poor person dies is bound to carry the body decently covered to the place of burial.” 

It’s the householder’s responsibility, that’s whose. And it is as a householder within the meaning of the law, believe it or not, that a hospital accepts responsibility for disposing of paupers who expire on its premises. Does this mean that if you invite a broken-down gentleman of the road into your house and he expires in your kitchen as the kettle boils, you will be expected to fund his funeral? Seems unlikely, doesn’t it?

Not if you’re Brent council, it doesn’t. Brent council (Labour) has no wish to fund more public health funerals than it has to.  In its Framework in respect of the responsibility owed by the local authority to provide financial assistance and / or arrangement of Funerals (2013) it points to “the duty at common law to arrange for a proper disposal of a dead body.” This duty, it says, “falls primarily upon the executors of the deceased.”

Interesting idea. We’ll come back to that.

There’s no doubting the right of a council to reclaim funeral expenses from the estate of the deceased, if there’s anything in it. But from a living person?

Brent thinks so. It thinks it can go after people other than the executor, too. In the event of its having to arrange a public health funeral:

“the Council should notify the next of kin or anyone appointed to act on behalf of the deceased (e.g. Power of Attorney, deputy or financial representative) of the debt and refer this immediately to legal services so that consideration can be given to initiating civil debt recovery proceedings either against the estate or an executor personally if appropriate.”

The council does not intend to pursue householders, you notice, though it correctly assigns responsibility to a hospital to arrange disposal: “where the death occurs in a hospital, the hospital authority is liable, as the person on whose premises the body is situated, to arrange for the burial or cremation of the deceased patient.”

So what about those acting with Power of Attorney or as deputies? Memo to Brent: they are absolved of all responsibility as soon as the person they represent dies (doh). Makes sense, doesn’t it? No, Brent, there’s no coming after them. Nor the financial representative because that is not a meaningful term.

What about executors? Bit of a moving target, I fear. Nominated executors, sadly, cannot be held to their duty and forced to assume the legal status of executor. On the contrary, executors may resign at any time — eg, when the letter from Brent council flops through the letterbox.

Next-of-kin? I have searched high and low for any instance where any nok was ever brought to trial for refusing to accept their ‘duty to bury’. I have searched in vain. I think we can accept that as duties go it is redundant. After all, it’s not so long ago that the estate of Robert Lenkiewecz was allowed by a court of law to retain ownership of the unburied corpse of Diogenes.

Nope, the ‘duty to bury’ is obsolete and has no teeth. Prove me wrong, Brent.

In conclusion, therefore, it seems to me that the Brent has no right to pursue a claim against an executor personally, nor next of kin, nor anyone appointed to act on behalf of the deceased (e.g. Power of Attorney, deputy or financial representative) nor any other living, breathing person, not even you.

I put this to Brent council. I wrote: “An interpretation of the Framework is that it could intimidate anyone who, for whatever reason, declines to undertake the disposal of a dead person.” That was on 9 Oct. I got an automated reply: “Your request has been received and a  member of our team will respond to you within 5 working days.” On 14 Oct I was flattered by a human response: “Your enquiry has been forwarded to the Registration and Nationality Service. They will aim to respond to you directly within 10 working days.”

On 25 Nov I wrote to remind them. They replied: “We confirm that your message has reached our service today and you should receive a response within five working days.”

Did I heck as like. I’ll keep trying, though.

 

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Maurice S Clarke
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I am administering an estate of a lady who died in Leeds intestate and there were no obvious heirs

Leeds CC organised a £12,500 funeral.and were paid from the estate by HM Treasury Solicitor (BV)

We traced 3 heirs to the estate in Germany who found their inheritance reduced by this excess – are there any legal actions made against CCs for similar overspends? I think I need to sue for £8,000 refund – they spend £4,700 on the coffin and £1,800 on a headstone for starters

Jonathan
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Jonathan

It is hard to understand Leeds CC’s motivation for paying three and a half times the average cost of a funeral in the first place — it’s not as if they stood to gain from it, and they can’t be so stupid as to pay out in ignorance. Please do sue them or their service provider, Maurice S Clarke, if only to bring the law on body disposal more into public awareness where it beloings.

James
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James

http://www.dailyrecord.co.uk/news/scottish-news/paupers-grave-shame-10-penniless-4766298

An article about this has appeared in the Scottish Daily Record.

Ian Quance
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Ian Quance

Like Ken, I too have conducted many of these funerals on behalf of Exeter City Council and Mid Devon District Council; probably 2-300 over a period of sixteen years. The term ‘pauper’ was a legal phrase defined by the Poor Laws, the last of which was repealed in 1948. Only the press still use the term. I have tried for years to get the terms ‘Public’ and ‘Private’ funerals used, to little avail. Many Local Authorities are woefully ignorant of the guidance offered by bona vacantia, the arm of the Government that deals with such matters. As you suggest, LAs… Read more »

Kathryn Edwards
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Kathryn Edwards

Respect.

Ken West
Guest

Fascinating stuff, Charles. I never heard of a ‘duty to bury’ and it simply does not exist. Brent council are onto a loser there. But it begs a question as to whether any council has to ‘fund’ such funerals or, indeed, whether the word pauper is relevant. In my two years managing Cardiff Bereavement Services we arranged about 30 public health funerals each year. Far from being paupers, the majority of the cases arose simply because there was nobody willing to arrange the funeral. In many cases, family strife, not least divorce, was the reason the bereaved lived alone and… Read more »