Editorial : Funeral Dignity for the Poor

Reprinted from The Common Good, No 67, Advent 2013

‘Mrs Brosnahan lived and died in poverty.’

These were the chilling opening words of the recent Judgment delivered in the High Court by Justice Stephen Kos in response to an application by Mrs Brosnahan’s husband (aided by the CW) seeking clarification as to who should receive the WINZ funeral grant.

The judge found that the crux of the case involved whether the funeral grant (available on application from WINZ, maximum $1971.30) should be given to the surviving spouse, or to the decease’s estate. It was originally intended by parliament to aid the spouse or family during the early weeks of bereavement.

But WINZ have been paying it to the estate of the deceased and arguing that it can then be used to help pay for funeral costs. The judge said ‘no’ – ‘the purpose of the four-week terminal benefit is to provide immediate financial aid to the deceased’s immediate family.’ He ruled that the terminal benefit should be paid to the surviving spouse. It was not designated for funeral costs.

As outlined in an accompanying article (p 4), current policy has resulted in a real injustice to those we number among the poorest of the poor in this country. The Catholic Worker has helped bury many such people over the years. Justice Kos was in no doubt that the Department erred in its policy and needs to change it.

The funeral grant is only available, under strict conditions, to those who cannot afford a funeral for a loved one. Currently a family can apply for a grant or a portion thereof to cover certain nominated costs eg cremation fee, burial costs, newspaper notice etc. Some 5,504 grants were paid in year ending June 2012, of which 1659 were paid to surviving spouses. The decision has set a precedent that could force the Ministry of Social Development to audit thousands of payments dating back decades.

Justice Kos’s Judgment concluded (Para 51-54) that the Ministry’s current payment policy ‘is unlawful, the terminal benefit should have been paid to the spouse not to the estate, and the Appeal is allowed.’

It might only mean a few more crumbs from the table, but sometimes, that is all the poor ever get.

In Quest of the Funeral Grant

Our friend Blanche Brosnahan died in August 2011 in Princess Margaret Hospital in Christchurch. Married to Barry for more than 20 years, she had been in poor health for some time. She died peacefully. Members of the Catholic Worker transported her body from the hospital and took her back to Suzanne Aubert CW house where some of our women laid her out.

A few days later, we conducted a funeral service for her to which about 15 of her friends came. We provided a casket built by Mike Coughlan, prepared some readings and celebrated her life with prayer and music. After taking her body to the crematorium in our station wagon, we returned to the CW for shared afternoon tea and more story telling.

We have facilitated many of these funerals for the poor over the years. From time to time, we apply for a WINZ funeral grant to help pay for the basics – a casket, a grave or cremation fee and a newspaper notification. The rest we do ourselves – preparation of the body, providing transport for the deceased, for relatives, refreshments, and filling out paperwork for government departments.

Blanche left no estate, so we decided to apply for a funeral grant to cover the basics. We sought $1450 re-imbursement. The maximum grant is $1956 (a funeral director charges on average between $6,000-$10,000), so we were well under the maximum available. No price gouging here!

Imagine our surprise when the local WINZ office declined our application. We went to see why. They explained that because her estate had been paid four weeks of Blanche’s benefit after her death, this should be used for the funeral costs. We argued not so, that the extra payments were intended by parliament to help the surviving spouse adjust to widowhood and ease things in the first few weeks after a death. If it was meant to be used for funeral expenses, this would have been spelt out in the legislation. They disagreed.

By now our ‘injustice’ antennae were up good and proper. This seemed to be yet another trick to wheedle the poor out of an entitlement in the interests of saving money. It seemed to be grossly unfair. There was a principle which could affect other families in similar situations. We decided to fight the issue.

Appeals

Our first appeal was held in a small room at Nga Hou e Wha Marae where three senior government officials came to hear our case for reimbursement. They listened for an hour as Francis Simmonds and I outlined the circumstances of this impecunious couple. We asked whether or not the legislation was intended specifically for these sorts of people who owned nothing of substance. The officials were sympathetic but declined to change the ruling.

We next appealed to a three-person national panel. WINZ flew me to Wellington for this hearing. This was held in a formal court type-setting, with a top lawyer from the Ministry of Social Development (MSD) appearing for the Crown. I presented a substantial case prepared by a very good lawyer, Simmonette Boele, from Community Law in Christchurch. I must say I felt a bit like Perry Mason (minus the wheelchair!) as we batted the case to and fro in front of three distinguished public officials. Forty years of preaching stood me in good stead! I thought we had done enough to win. But I hadn’t realized the intransigence of the bureaucratic mindset. A week later we were notified we had lost again.

Our lawyer urged us to go to the High Court. I pointed out that the Crown had already spent several thousand dollars in defending the status quo. But Simonette would have none of it. ‘It’s the principle of the matter. There will be other families denied their just entitlements. We are among the few strong enough to challenge this injustice. Let’s take them to court.’

So we did. On 19th August our case was called in the Christchurch High Court. A Crown lawyer was flown from Wellington to appear for the Ministry of Social Development and the case was held before Justice Stephen Kos, a High Court judge, also from Wellington. This time Simonette argued our case. She was brilliant. It took the whole morning. Justice Kos seemed very fair-minded, asked lots of questions, and acknowledged the strength of our case and its presentation. Both parties accepted that the nub of the question was: to whom should the terminal benefit have been paid – to Blanche’s estate or to Barry, her surviving spouse? We adjourned at lunchtime.

Judgment was delivered on 9 October. We had won our case. Justice Kos ruled that the MSD process of rejecting our application was unlawful. In a 14 page decision he outlined where successive appeal panels had erred in their interpretation of the law. He ruled that parliament clearly intended that the purpose of the four-week terminal benefit was to ease the transition of the surviving spouse into widowhood and that the funeral grant was something separate. It could be applied for and used to pay for funeral expenses regardless of the transition benefit. As the judge’s statement said, ‘Mrs Brosnahan lived and died in poverty…The terminal benefit should have been paid to Mr Brosnahan… The Ministry’s payment policy was unlawful.’

This clearly is a victory for justice, for the poorest who can’t afford a decent funeral for a loved one. It has involved more than two years of struggle. The judgment found the Ministry of Social Development have been squeezing the poorest of their funeral entitlement at their most vulnerable time.

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