Posted in Fairness Campaigns
Our ongoing research into the relationships between heir hunters and local authorities has uncovered a minefield of misunderstandings about public health funerals and the related duties of local authorities. In this article, we take a long, considered look at both the myths and the facts – and ask whether public authorities are needlessly exposing themselves to legal and reputational risk by providing information to heir hunters as an exclusive arrangement.
Local authorities are increasingly using heir hunters to trace family members of those who die in their district without known next of kin.
To understand this trend, we sent Freedom of Information Act (FoI) requests to over 350 local authorities in England and Wales, followed by more detailed requests to the 117 local authorities that we were aware had made use of heir hunters.
Of the 112 local authorities that responded to the detailed requests, 86 said they used heir hunters. Many said they used them extensively.
Of the 86 local authorities that have used heir hunters or probate researchers, 51 cited financial reasons as a motivation. The dominant consideration given was either to save money and resources that they might otherwise have to spend on locating next of kin or on a public health funeral, or to recoup money spent on a public health funeral after the event.
The assumption appears to be that next of kin (even when remote) will take over the funeral arrangements or, alternatively, where the funeral has already taken place, funeral costs can be recouped from the estate of the deceased via the entitled kin.
Significantly, many local authorities did not appreciate that these funeral expenses can usually be recouped as a preferential debt direct from the deceased’s estate, regardless of when the next of kin are identified or the estate administered.
What the law says about public health funerals
Under section 46(1) of the Public Health Act 1984 (‘the Act’) district and unitary authorities are under a duty 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”.
In other words, when someone dies with no apparent family and nobody is willing to arrange the funeral, a legal duty falls on the local authority to perform a public health funeral for them. There are similar provisions for deaths in hospitals.
Many councils are acutely aware of the costs of public health funerals. Nevertheless, section 46(5) of the Act clearly states that “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 under subsection (1) or subsection (2) above”.
The reasonable funeral expenses are akin to a first charge on the estate. This means that they take priority over any other debts. Where there is a bank/building society account belonging to the deceased, savings institutions will often release funds to cover funeral expenses in advance of a grant of probate or letters of administration. All they require are the relevant invoices and proof of standing (where section 46(5) of the Act is relevant).
Consequently, if there are assets in the estate, the refund of reasonable funeral expenses and associated administration costs is guaranteed, regardless of when the next of kin are identified or the estate administered. It should be noted that in making arrangements for the funeral and then recovering the costs, the authority will not assume liability and accountability as an executor de son tort.
Statutory duty or discretionary power?
Many of the local authorities we contacted reported or implied that they had a duty to locate next of kin, with 32 stating (incorrectly) that they had a legal obligation to locate relatives under the Public Health Act 1984.
Others referred to the Administration of Estates Act 1925, the Local Government Act 1972, Localism Act 2011 or the Care Act 2014. Taken together, the responses reveal considerable confusion about local authorities’ obligations to locate next of kin.
While there are no statutory provisions in the Public Health Act, or elsewhere, that relate to locating next of kin as part of the process of carrying out a public health funeral, it is likely that councils are doing so under the ‘general power’ conferred by the Localism Act.
Section 1 of the Localism Act 2011 grants local authorities a far-reaching ‘general power of competence’ that allows them the freedom to ‘do anything that individuals generally may do’ and thus minimises the scope for claims that they have acted beyond their legal power.
In this context, it’s easy to see that there’s some confusion between duties and powers, with many councils seeming to believe that they have a statutory duty to locate next of kin, when in fact this is something they can choose to do at their discretion.
Why does the distinction matter?
This is important, because discretion must be exercised lawfully or decisions are open to challenge through judicial review. For example, if an authority acts irrationally, or takes into account an irrelevant factor, or fails to take into account something relevant that is drawn to their attention, that decision could be overturned by the courts.
Given that finding next of kin is a discretionary power, authorities need to be crystal-clear that the reasons for, and consequences of, using this power are genuinely beneficial overall. It is our contention that, as things stand, they are not - for the reasons set out below.
The established procedure of referring intestacies with no known next of kin to the Government Legal Department’s Bona Vacantia Division (BVD), or to the Duchies of Cornwall and Lancaster, relieves authorities of the question of whether to exercise a discretionary power to find relatives.
Of course, as 22 of the local authorities we contacted pointed out, BVD will not accept referrals where there is known to be a living relative. However, the evidence of our FoIA investigation suggests that the decision to find kin can also be motivated by a host of other reasons (from financial concerns to the fear of reprisals from kin who have been unable to arrange or attend their relative’s funeral). This further suggests that many more cases are bypassing BVD than strictly necessary.
What is even more worrying is that, whether authorities choose, or are forced, to find next of kin, many of them proceed in a way that circumvents competition.
The law of unintended consequences
Amazingly, the responses to our FoI requests revealed that some authorities were engaging in the anti-competitive practice of supplying information to heir hunters on an exclusive basis.
As we argue elsewhere, providing heir hunters with exclusive knowledge of an intestate estate increases the likelihood that relatives will pay higher fees and that entitled next of kin will be overlooked.
Not one of the reasons that LAs gave us for choosing to locate next of kin justifies circumventing competition.
By eliminating competition from the process, local authorities are inadvertently creating an environment in which the interests of heir hunters are prioritised over the interests of next-of-kin. When their actions place consumers at a disadvantage, local authorities place their own reputations at risk.
It was evident from the FoI responses we received that there is a desire for clear guidance as to what local authorities should do when dealing with a person who dies within their boundaries without known next of kin. You can read our own suggested code of practice here.
This article is an overview only: legal advice should be sought by any local authority which is considering a departure from the standard mechanism of referral to the BVD or the Duchies of Lancaster or Cornwall of estates of deceased people with no known next of kin and assets of over £500.