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Burial and Cremation (Scotland) Act 2016

Local authority functions

Section 87 – Burial or cremation: duty of local authority

233.Section 87 places a responsibility on a local authority where someone has been found dead in the local authority area and it appears to the authority that no arrangements have been or are being made under sections 65(2) or 66(2) for the disposal of their remains. Under subsection (2) the local authority must make the arrangements for disposal of the remains either by cremation or burial in such circumstances.

234.Subsections (3) and (4) provide that a local authority that looked after a child who has died or cared for or provided assistance to an adult who has died must make arrangements for that person’s remains to be buried or cremated if no other arrangements are being made for the disposal of the remains.

235.Subsection (5) requires that when making such arrangements the local authority should have regard to any wishes the deceased person had about the method of disposal, if those wishes are known to the local authority. They must also have regard (as far as known to the authority) to the deceased’s religion or belief when deciding whether to bury or cremate the remains. “Belief” and “religion” have the meanings given by section 10 of the Equality Act 2010. The local authority is entitled to recover any expenses it incurs in making arrangements for the burial or cremation under subsection (2) from the deceased’s estate.

Section 88 – Expenses of attending funeral

236.Subsection (1) provides that this section applies where a child dies and was being looked after by a local authority immediately before their death, or an adult dies who was in the care of, or receiving assistance from, a local authority immediately before death. As per subsection (2), in such cases the local authority may pay the expenses for attending a funeral in certain circumstances. Expenses can cover the cost of travelling to the funeral, and other costs incurred by the person attending.

237.Expenses may be paid only where the person meets the conditions set out in subsection (3). These are that the person (referred to as a “relevant person”) would not be able to attend the funeral without suffering undue hardship if the local authority did not make the payment, and that the circumstances justify the payment being made, in the opinion of the local authority.

238.Where a child has died, a “relevant person” is a relative of the child or another person connected with the child. Where a person other than a child has died, a “relevant person” is a relative of the child or some other person connected with the person who has died. Subsection (5) defines a child who is “looked after” by a local authority as being construed in accordance with section 17(6) of the Children (Scotland) Act 1995.

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Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.


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