The Funeral Market Investigation Order 2021

The Competition and Markets Authority has this month published its Funeral Market Investigation Order 2021. V. Charles Ward looks at how bereavement-service managers can comply with new regulatory requirements.

The Funeral Market Investigation Order 2021, published by the Competition and Markets Authority on 16th June 2021, has implications for everyone operating a crematorium in the United Kingdom, both public and private. Unusually the order also extends to the devolved administrations of Scotland, Wales and Northern Ireland.

The making of the Order follows a CMA investigation into the funerals industry, which reported in December 2020 with a recommendation that measures be put into place to ensure greater price-transparency amongst funeral-directors as well as crematoria. It is to make it easier for bereaved families to compare prices when they are at their most vulnerable.

The Order achieves its primary purpose by requiring funeral directors to display detailed price-information in a similar way to a pub or petrol station. As well as price-information, funeral directors must also display their terms of business, including the amount of any deposit required and when any final balance must be paid. 

To assist price-comparison, that information must be populated within a prescribed template. Price-information must also distinguish between ‘attended’ and ‘unattended’ funerals as well as between a standard funeral director’s service and additional bespoke items. An ‘attended’ funeral is one which includes a funeral service and where mourners may attend. 

As well as displaying price-information, funeral directors must also periodically feedback financial information to the CMA. The order also prohibits funeral directors from entering into any referral-arrangement with a hospice, hospital, care home or other provider of palliative care. This includes a prohibition on funeral directors donating money or offering other gifts to those institutions. Of particular importance to bereavement service-managers are Articles 8 and 10 of the Order.

Article 8 requires a crematorium operator to supply local funeral directors with the following price-information relating to the cost of cremations:

• A cremation standard-fee attended service;
• A cremation unattended service, if offered by that operator;
• A crematorium reduced-fee attended service, if offered.  This refers to off-peak cremation-services taking place before 10am or after 4pm, when a reduced fee may be charged.

A crematorium operator is also required to include within that price-information:

• A description of what is included in and excluded from the cremation services provided;
• The length of time permitted for a cremation service and whether this includes time allowed for mourners to gather and leave the crematorium;
• Any additional charges for a cremation service taking place on particular days or at a particular time, such as at a weekend;
• Any charge made for exceeding the permitted time or late arrival and/or departure of the cortege; and
• Where possible, a breakdown of the headline price into the total price for all core services, such as the processing of cremation forms; environmental levies and any other elements that are necessary for the cremation service. This must also include the individual prices for any optional services including, but not limited to, the purchase of additional cremation service time; use of music facilities; webcasting; organists; visual tributes; memorials; a container for ashes; scattering of ashes; storage of ashes; collection or delivery of ashes.

A funeral director is to be regarded as ‘local’ if it is within a 30 minute ‘cortege-speed’ driving distance from the crematorium. How fast is ‘cortege-speed’?The Order doesn’t say. Where there is no funeral director within the 30 minute radius, the duty is to supply that price-information to the nearest funeral director.

As well as providing price-information to local funeral directors, a crematorium-operator must also display that information in a clear and prominent manner at each crematorium and on any website owned by the crematorium-operator. Where a crematorium-operator displays price-information on its website, it must do so in a pdf and titled ‘Price-Information’. It must be displayed on a page no more than one click away from the home page, with any link to that page prominently labelled so the nature of the information to which it leads is clear.

Article 10 states that on 1 October, 2021, the crematorium-operator must supply the CMA with the total number of cremations it has carried out and the total revenue it has gained from cremation-services in the period from 16th June 2021, when this order was made, and 31 August, 2021. 

At the beginning of April 2022, a crematorium-operator must supply the CMA with the total number of cremations it has carried out and the total revenue received from crematoria services in each of the two preceding three month periods and, going forward, provide that financial information to the CMA at three-monthly intervals. Each crematorium-operator must supply the required information in an aggregate form as well as in a disaggregated form showing the totals for:

• Crematorium standard-fee attended services;
• Crematorium reduced-fee attended services, if offered;
• Crematorium unattended services, if offered;
• Any other services provided by the crematorium operator that are not listed above.  That might include the provision of memorials or the interment of cremated remains within the grounds of the crematorium.

Article 11(4) of the Order states that by the end of April 2022, a crematorium-operator must supply the CMA, preferably by e-mail, with a Compliance Statement confirming that it has complied with the pricing requirements of Article 8 and the information requirements of Article 10 during the preceding reporting year from 1 April to the following 31 March.

Schedule 2 Part C of the Order provides a template for crematorium operators to populate their figures for the several different types of cremation listed above.

Section 167 of the Enterprise Act 2002 places a duty on anyone to whom the Order relates, to comply with it. That duty is owed to any person who may be affected by any contravention of the Order, such as local funeral directors who are entitled to receive crematorium pricing information, as well as bereaved families.  Any person who sustains loss or damage that is caused by a breach of this duty may bring a civil claim before the courts.  The CMA also has power to enforce compliance by bringing civil proceedings for an injunction or other appropriate relief or remedy.

For the time being, the requirement to provide pricing-information does not apply to burials (save perhaps those interments of cremated remains taking place within the grounds of a crematorium) and there is no obligation on cemetery owners to publish that information or provide returns to the CMA. However funeral directors will, as a matter of practice, need information about burial fees to comply with their own obligations under the Order to provide information about the wider funeral costs.

V. Charles Ward is the Company Solicitor with the Institute of Cemetery and Crematorium Management and is the author of Essential Law for Cemetery and Crematorium Managers, published in June 2021, which was commissioned by the Institute and can be purchased through Amazon.