A parent has a duty in common law to bury (ie, bury or cremate) their child if they can afford to and in R v Stewart (1840) Chief Justice Denman made 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 … 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.”
A hospital counts as a householder in law, which is why it will arrange and pay for a funeral for any patient who has died and whose body has not been claimed.
A local authority has a duty to arrange burial or cremation who dies in “residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.” (National Assistance Act 1948 PIII, S21)
In theory the owner of any premises (eg hotel, private house) where someone dies has a common law duty to bury or cremate at their own expense, but this has never, as far as we know, been tested in law.
If no one will accept responsibility for burying or cremating a dead person, “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 not suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority.” (Public Health (Control of Disease) Act 1984 S46). A local authority may recover expenses from the estate, if any, of the person who died: “An authority may recover from the estate of the deceased person or from any person who for the purposes of the National Assistance Act 1948 was liable to maintain the deceased person immediately before his death expenses incurred.”
A local authority funeral, or public health funeral, is a simple and dignified affair to which people are invited. It is often called a paupers’ funeral, especially by the media. This is an alarmist and stigmatising term, and it is wholly misleading. A public health funeral today is nothing like a pauper’s funeral of yesteryear.
The value of the Social Fund Funeral Payment for people on benefits is declining. When introduced in 1988 by a Conservative government it was set at a level where it would cover the entire cost of a simple, dignified funeral. It was downgraded to a ‘substantial contribution’ to funeral expenses by a Labour government in 1988 and those who are eligible for a Funeral Payment now find themselves with a shortfall which many make up for by taking out a loan.
For those who cannot afford the full cost of a simple funeral, does there exist an option of refusing to accept responsibility and, instead, leaving their local authority to do its duty? The answer to this question has to be probably. We are aware of no prosecution for failing to discharge this duty, nor of civil proceedings to recover costs from those held responsible.
However, Brent Council, as of 1 March 2013, is proposing to do just that – see here. Brent council says: “Since funeral expenses are a first charge on an estate, the deceased’s bank or building society will normally be willing to release funds directly to the undertaker for payment of the funeral account.” This is correct. “But where this is not possible, 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 Good Funeral Guide has challenged this and is awaiting a response from Brent council. The term ‘next of kin’ is close to meaningless. The responsibilities of anyone acting with Power of Attorney or as a deputy end at death. As for targeting an executor when there is no estate, well, executors cannot be held to their duty and forced to hold the legal status of executor but, on the contrary, may resign their duty at any time. An interpretation of Brent council’s intentions is that they are likely to intimidate vulnerable people.