A little known, but long-established area of funeral legislation that is becoming increasingly relevant
The parliamentary research paper on Key issues for the new Parliament 2015 identified Funerals and burial space as an important issue in the area of social change which should be addressed by the incoming administration. The paper noted that
“[t]he costs of a basic funeral have nearly doubled over the past ten years. Meanwhile, space for burials is becoming increasingly scarce. Can people afford the cost of dying, and even if they can, will there be space for a burial if this is what they choose?”
It cited a report published by the University of Bath in 2014 which found a small but notable increase in demand for “public health funerals” and commented that “[i]n light of ongoing issues with the Funeral Payments scheme, there is concern that local authorities may be required to provide more Public Health Funerals as the number of deaths per year rises”.
This post reviews the legislation associated with “public health” funerals (sometimes referred to, incorrectly, as “pauper’s funerals”), and the related, but much more recent practice of “direct cremation” or “direct disposal”.
Legislation in this area encompasses a spectrum of issues from those in which an executor cannot be identified, instances where there are insufficient funds for a funeral, to those making the deliberate choice of “direct cremation”. However, these are not mutually exclusive categories, such as in cases of intestacy where sufficient funds are available to cover the cost for a funeral, but no executor can be identified – circumstances for which the label “pauper’s funeral” is clearly a misnomer.
The treatment of a body prior to its final disposal is subject to a quasi-hierarchy of rights, based upon its ‘custody and possession’. This was summarized by Kennedy and Grubb (Kennedy, I and A Grubb (1989. Medical Law Text and Materials. London: Butterworths. 10) as:
“‘the person who has actual physical custody of the body has lawful possession (and the duty of disposal) of it until someone with a higher right (e.g. an executor or parent) claims the body … In the absence of the executors there is a common law duty to see that the body is buried and the person lawfully in possession is normally the occupier of the premises where the body lies, or the person who has the body”.
This quasi-hierarchy relies upon a number common law and statutory provisions, and operates by default; it therefore cannot be regarded strictly as a ‘stand-alone’ hierarchy.
Public health funerals
Section 46(1) Public Health (Control of Disease) Act 1984 places a duty on 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”.
Section 46(2) extends this to any council which is the local authority for the purposes of the Local Authority Social Services Act 1970 with regard to any deceased person who immediately before his death was being provided with accommodation under Part III of the National Assistance Act 1948 by, or by arrangement with, the council or was living in a hostel provided by the council under section 29 of that Act.
The Local Government Association (LGA) publication Public health funerals A survey of authorities in England and Wales, 2010 interprets this as [emphasis added]:
“when a resident in the area passes away outside of a hospital and there is no one else willing to pay, councils make the necessary arrangements for a public health funeral. Councils will do everything in their power to try and locate living relatives or friends of the deceased, and in some cases, pass the responsibility on to them.
Under their obligation the council will deal with all aspects of the organisation of a state-assisted funeral, including registering the death, dealing with the undertakers and organising the details of the funeral, involving where possible, friends and relatives of the deceased in the process, and paying for the funeral. There are however certain caveats that apply to this provision. Councils will not accept part payment for funerals, contribute to the costs of funerals organised by other persons or administer estates on behalf of others.”
In response to a Freedom of Information request (DE00000886329, September 2014) the Department of Health stated that if such a person dies at a hospital run by an NHS Trust, the responsibility for the funeral arrangements rests with the respective NHS Trust; however, whereas some hospitals follow this guidance, others pass these cases to the relevant local council.
Social Fund funeral payments, (SFFP)
The House of Commons Work and Pensions Committee considered Social Fund funeral payments and bereavement benefits in its report Support for the bereaved, 9th Report of Session 2015-16, HC 551. The summary explained:
“SFFPs are means-tested and claimants must meet eligibility criteria in order to receive a payment. The scheme pays for the purchase of: a grave and burial fees; or a crematorium fee and any medical fees necessary for a cremation to take place. The amount awarded to meet these fees is uncapped. The scheme also pays up to £700 towards other costs associated with a funeral, such as a coffin, a hearse, funeral director fees and flowers.
The maximum award for other essential funeral costs has been fixed at £700 since 2003. It now does not cover the cost of a simple funeral. In addition, funeral director fees have risen well above the rate of inflation.”
The Local Government Association submitted written evidence to the House of Commons Work and Pensions Committee which is included in its report. The Committee noted  that there is no set standard for Public Health Funerals (PHFs) and different local authorities have different practices. The LGA said
“The role of public health funerals is to ensure that public health is protected when a person dies and no-one is able to make the funeral arrangements. Councils often enable families to take part in the funeral service, however councils are also mindful of the cost to the public purse of performing these funerals, especially when they appear to be on the increase.”
Chapter 1 of the Committee’s Report addresses funeral costs, and the definition and cost of a “simple funeral” are considered in sections 15 to 24. The cost of a funeral is comprised of:
- Disbursements: Non-discretionary items [cemetery fees & internment fees or a crematorium free & doctor’s fee for completing the cremation forms] and discretionary items [church fee, cremated remains plot or storage space, celebrant/minister fee, organist fee, press notices], Figure 2; and
- Funeral directors’ fees: Non-discretionary items [collection of the deceased person from the place they died; storage of the deceased until the day of the funeral; hearse on the day of the funeral; professional fee for meetings, administration, correspondence, liaison, paying third parties and provision of funeral director and sufficient coffin bearers on the day of the funeral; provision of a lined and fitted coffin and the deceased person presented in it] and discretionary items [embalming and memorialisation], Figure 3.
When the Social Fund Maternity and Funeral Expenses (General) Regulations 1986 were introduced, they in effect defined a “simple funeral” for which the cost of prescribed items would be met for qualifying claimants [Figure 4 of the Report]. However, the Committee observed :
“The original Funeral Expenses Regulations made provision for a simple funeral service for those otherwise unable to afford one. The removal of any listed items in the Regulations, and the freezing of the £700 cap for the last 13 years, has devalued the SFFP to the point where it does not cover a simple funeral.”
Direct cremation and direct burial
In its consideration of funeral costs, the Report commented :
“The definition of a simple funeral varies and even the label attached to it can cause confusion. The written evidence we received refers to ‘simple’ or ‘basic’ funerals, which sometimes include costs associated with a service (for example Minister’s fees). Other companies however offer direct cremations or burials that do not involve services.”
The Good Funeral Guide’s Factsheet, Direct cremation and direct burial, states that increasing numbers of people are turning to direct cremation or direct burial as alternatives to a conventional funeral; those using direct cremation and direct burial include:
- People who, in line with their beliefs and values, do not feel they need to have a formal, public, ceremonial funeral at which the body of the person who has died is present. Most people who opt for direct cremation or direct burial could easily afford a traditional funeral but they choose not to.
- People who cannot afford a traditional funeral. Because of its simplicity, direct cremation is the cheapest way of disposing of a dead person. Direct cremation costs as little as £1,000 all in.
To this should be added local authorities fulfilling their duty under the 1984 Act. The Factsheet itemizes the associated costs, which include: funeral director’s time and overheads; storage in funeral director’s mortuary; removal of pacemaker, prosthetic(s) &c if necessary; simple coffin; transport; crematorium fee; doctor’s fee x 2 @ £82 each (sometimes referred to as “ash cash”). Two doctors must certify the cause of death but if the person who has died has been seen by the coroner there is no fee.
The Report identifies the options not generally included in such an option, though local circumstances may be different: any service at the Crematorium; any mourners to attend the Crematorium; a choice of coffin; a choice of vehicle used to transport the deceased to the Crematorium; flowers; and obituary notification.
As with Public Health Funerals, there is a stigma associated with direct cremation. These are often arranged at unpopular times, (c.f. the “9 o’clock trot” of horse-drawn hearses in Dickensian times), and whilst many funeral directors now offer direct cremation and direct burial, some use separate branding, often on the internet, to keep it well away from their “conventional” business. The Good Funeral Guide cautions:
“The direct cremation market has grown very fast in recent years. Google it and you’ll find all sorts of websites offering great deals. If you want the body of the person who has died to be treated with respect, be very careful. A precious few of these outfits are excellent but there are some are dreadful ones, too. This is an unregulated industry, remember: the bad guys can get away with… anything. The good guys ask us to visit them and check them out so that we can confidently recommend them. The bad ones, obviously, don’t”.
We are not in a position to confirm or deny these comments other than to suggest, as with any purchase, caveat emptor.
The government published Support for the bereaved: Government Response to the Committee’s Ninth Report of Session 2015–16, Second Special Report of Session 2016–17, HC 230 on 22 June 2016; this stated inter alia:
“1. … the cost of funerals is not just an issue for Government and those providers of funeral services including the church, funeral directors, local authorities and owners of crematoria all have a role to play.
2. The Government believes, and the Select Committee acknowledges, it should not take responsibility for meeting the full cost of funeral arrangements when there is a family that can take part of that responsibility. Additionally, as the Select Committee agrees, it is important that, where possible, individuals take responsibility for their end of life planning and do not leave their family or taxpayers with the financial burden of meeting their funeral costs.
- The Government is committed to providing the most effective support possible by taking a holistic approach to addressing the issues, particularly around communication and guidance, faced by the bereaved.
Following its detailed review of all aspects of cremation and burial, in the Burial and Cremation (Scotland) Act 2016 was passed by the Scottish Parliament on 22nd March 2016 and received Royal Assent on 28th April 2016. Section 98 relates to guidance on funeral costs under which: (1) The Scottish Ministers may publish guidance on the costs associated with making arrangements for a funeral. (2) The guidance in particular cover the desirability of such costs being affordable. (3) Before issuing such guidance, the Scottish Ministers must consult— (a) burial authorities, (b) cremation authorities, (c) funeral directors, (d) any other persons they consider appropriate. (4) The Scottish Ministers must lay a copy of any guidance published under this section before the Scottish Parliament.
Section 98, (guidance on funeral costs) of the Burial and Cremation (Scotland) Act 2016 came into force on 1st June 2018, The Burial and Cremation (Scotland) Act 2016 (Commencement No. 2) Regulations 2018.