[2004] UKSSCSC CFG_4622_2003 (04 August 2004)

PLH                                                                         Commissioner's File: CFG 4622/03

FORFEITURE ACT 1982
	Commissioners Procedure Regulations 1999 SI No 1495
	
REFERENCE OF FORFEITURE QUESTION

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Bereavement benefits
Date of reference:	28 November 2003

     1.     	This reference of a forfeiture question was made to me by the Secretary of State on 28 November 2003 in respect of the claim to bereavement benefits made on behalf of the claimant by his sister and appointee following the death of his late wife on 23 December 2001.   The time between the date of the reference and now has been taken up with the Commissioners' office trying to obtain further details of the claimant’s present whereabouts and circumstances, and confirmation that his sister was still acting on his behalf in social security matters.  
     2.     	I now have before me a copy of the bereavement benefits claim received on 13 February 2002 in which various details are set out, together with express confirmation in a letter dated 10 May 2004 from the claimant’s sister at page 101 that she is still acting as his appointee, that he is currently residing in a probation centre not far from where she lives, and that they are in regular contact.  After full details of the nature of the reference and the material provided by the Secretary of State had been supplied to her, she sent in written confirmation on 6 July 2004 that she has no further comments and I accordingly now proceed to determine the reference.
     3.     	My decision is that: 
(1)	the forfeiture rule as defined in section 1 of the Forfeiture Act 1982 applies to preclude the claimant from being entitled as of right to any bereavement or other benefit under the Social Security Contributions and Benefits Act 1992 in respect of the death of his late wife, following his conviction for her manslaughter on his own admission on 17 January 2003; but
(2)	in the circumstances of this case I exercise the discretion I have under section 4(1A) of the 1982 Act to modify the effect of that rule by restoring any entitlement he may otherwise have under the normal operation of the rules to
(a)	 widowed parent’s allowance under section 39A of the 1992 Act as amended; and
(b)	 any category B retirement pension for which he may qualify under section 48BB, or extra category A retirement pension under section 48 and/or 52, in respect of her contributions.  
     4.     	As has been said in other cases the occasions when a Commissioner is called on to exercise the statutory jurisdiction under the Forfeiture Act 1982 are fortunately rare.  Most arise out of domestic tragedies that get out of control for one reason or another, and the facts of this one are more unhappy than most.  It arises out of the double killing by the claimant, a man then aged 43, of his wife and teenage son in the upstairs bedroom of the family home a day or so before Christmas 2001.  The claimant was originally charged with their double murder but part way through his trial at the Crown Court the prosecution accepted a change of plea and admission of the lesser charges of manslaughter by reason of provocation, a course which had the entire approval of the trial judge.  At her direction, the jury returned verdicts of not guilty of murder but guilty of manslaughter on the claimant’s own admission.
     5.     	In those circumstances there can be no doubt that the rule of public policy known as the forfeiture rule applies to prevent the claimant obtaining as of right any of the normal social security benefits that would have become payable to him as her surviving spouse had he not been responsible for her unlawful killing, and in accordance with section 4(1) Forfeiture Act 1982 I so determine.  Since he has been acquitted of her murder and the circumstances of the killing have been accepted by the judge and jury as amounting to manslaughter by reason of provocation, I have a complete discretion whether and to what extent the harshness of the rule should be modified in his favour in the particular circumstances of his case.  For that purpose I am required to have regard to the conduct of the claimant and of the deceased and to such other circumstances as appear to me to be material in determining whether the justice of the case requires the effect of the rule to be so modified: see section 4(1B). 
     6.     	The circumstances and the conduct of the claimant and his late wife appear sufficiently in the transcripts of the evidence given at his trial, included in the documents supplied to me on this reference.  It is not necessary for present purposes to go into the detail any further than to record the remarks of the judge in pronouncing sentence on the claimant, on 4 March 2003 after an adjournment for psychiatric reports; those remarks appear to me to reflect fairly and accurately what was shown by the detailed evidence itself.  The judge (Mrs Justice Rafferty) said: 
“You took the lives of your wife and of a much loved teenage son, when provoked by her infidelity, her relentless taunting and her disinclination, equitably, to share the demands of parenting in a family of four children, you stabbed her and then your son. 
I accept that when you went out earlier and bought the knife you did not do so with the intention of harming either her or your son.  The likelihood is that if you meant to harm anyone it was yourself.
I remind myself of your good character.  I am treating you as though you had, from the earliest opportunity, pleaded guilty to these two offences and I am going to give you considerable credit for having done so.  I listened to your daughter … tell me of your selfless dedication to your children and of the erosion of the family life you wanted but which your wife was determined to fracture.
This mosaic of events is not a wronged husband seeking revenge.  The picture is of a one-sided war of attrition in which your late wife wore you down and for months you survived until at Christmas 2001 she forbade you to see your children and she broke you.
You had a pre-existing history of depression and your intellectual ability is in the lowest 2%. …
The justice of … this tragic and unusual case can be met, in my view, by a term of imprisonment of an exceptionally low figure.  You will go to prison for 3 years 6 months.  That will make you what is called a short term prisoner…”
     7.     	Having been in custody since his arrest on 22 December 2001 and served part of his term in Pentonville, the claimant has according to his sister’s information moved to a probation centre where he is now residing, presumably on parole.  His two younger daughters, whose details are included in the benefit claim completed by his sister on his behalf, are currently living with her; and the form requests that any benefit should be paid into a bank account in her name.  They are currently aged 11 and 6.  No other particular circumstances affecting the question of the discretion have been brought to my attention despite the invitation to do so.  
     8.     	In my judgment, the justice of this case does require a substantial modification of the forfeiture rule as regards the claimant’s social security benefits, so as to give him the best possible chance of being able to restore as much of a normal family life as possible for his two younger daughters: a task in which it seems he has already been helped a great deal by what his sister has done for him and them.  At the same time, there is no escaping the fact this was a terrible and unlawful killing and it would not be right that he should obtain all the normal benefits payable as if he had not been responsible for his wife's death at all.  Accordingly as set out above my decision is that while the lump sum bereavement benefit he would ordinarily have got for himself under section 36 of the 1992 Act as the widower of a woman who died after 9 April 2001 is to remain forfeited, the whole of any widowed parent’s allowance under section 39A (whose purpose is to enable a widowed spouse to continue to meet the normal expenses of providing a home life for a child or children living with him or her while child benefit is normally payable) is to be reinstated and payable on the normal conditions.  
     9.     	For slightly different reasons connected with the claimant’s past attempts to provide a normal family life for his children as noted in the judge’s comments above, I also modify the effect of the forfeiture rule by reinstating any pension entitlement he would have got in the normal course by reference to his wife’s contributions. The evidence showed that one of the reasons that family life held together for as long as it did was that he stayed at home looking after the children for extended periods, or did night work, which enabled her to go out and earn money in more regular employment during the day.  That indirect contribution should I think be recognised and not forfeited.
     10.     	In accordance with rule 29 of the Commissioners Procedure Regulations having determined the effect of the forfeiture rule and the way it is to be modified I remit the case to the Secretary of State to determine all relevant questions of entitlement in the light of my decision.

(Signed)

P L Howell
Commissioner
4 August 2004