CFP/4349/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.  My decision is that the claimant is precluded by virtue of  the forfeiture rule, as defined by section 1 of the Forfeiture Act 1982, from receiving Category B retirement pension or graduated retirement benefit on the basis of her deceased husband’s national insurance contributions.  However, I relieve her from the effect of that rule entirely.  Pursuant to regulation 29 of the Social Security Commissioners (Procedure) Regulations 1999, I remit the case to the Secretary of State for a determination to be made of the amount of benefit payable in the light of my decision.

2.  This is a reference under section 4(5) of the Forfeiture Act 1982 and regulation 14(2) of the Social Security Commissioners (Procedure) Regulations 1996 of a forfeiture rule question.  The forfeiture rule is defined by section 1 of the Forfeiture Act 1982 as “the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing”.   Section 4(1) of the 1982 Act confers jurisdiction on a Commissioner in social security and pensions cases to decide whether the rule applies.  If the rule does apply, section 4(1A) of the Act confers power on the Commissioner to make a decision modifying its effect.

3.  On 4th June 1992 the claimant was tried at Winchester Crown Court on a charge of murdering her husband.  Her plea of guilty to manslaughter on the basis of diminished responsibility was accepted and she was sentenced to three years probation, conditional on residing at a specified address for that period and remaining under the medical care and supervision of two named doctors for one year, or for such longer period as the doctors considered necessary.  Unfortunately, it has not been possible to obtain the witness statements, medical reports or transcript of the judge’s sentencing remarks, but through the good offices of the Crown Prosecution Service it has been possible to obtain a summary of the prosecution case prepared by leading and junior counsel.  The claimant does not seek to challenge the prosecution’s version of events given at the trial.

4.  The claimant was aged 47 at the date of the offence and had suffered from depression for twenty-five years.  She had been admitted to hospital for electro-convulsive therapy and neuro-surgery and had been prescribed anti-depressant medication in the six years since her last admission.  The claimant met the deceased in 1978 while an in-patient in the hospital where he was receiving treatment for alcoholism.  The claimant and the deceased were married in 1984.

5.  The deceased was aged 50 at the date of his death.  He had been an alcoholic nearly all his adult life and had attended a number of clinics for the treatment of alcoholism and depression.  He had managed to stay off drink for nearly ten years, but by the middle of 1990 he had resumed drinking to excess.  From then until his death in July 1991 he had noisy and violent arguments nearly every day and well into the night.  The other residents of the block of flats where he and the claimant lived found his behaviour intolerable and had complained to the Council in order to get him evicted.

6.    The prosecution statement of case shows that the claimant inflicted multiple stab wounds on the deceased following an argument shortly after midnight on 13 July 1991.  During the argument the deceased took hold of a knife, but there is no evidence that he threatened the claimant.  While carrying out the attack, the claimant was heard by neighbours to shout hysterically:  “Kill me-kill me-I’ve had enough and I’m going to kill you.  I’m going to put you out of your misery.  I’ve had enough.  I can’t take any more.“  The deceased was found to have 22 stab wounds, including a wound to the right side of the neck which severed an artery and penetrated the right lung.   Analysis of the deceased’s blood revealed the presence of drugs and a blood alcohol level of at least 355 mg of alcohol per 100 ml of blood.  The claimant’s blood was found to contain no alcohol, but it did contain traces of the anti-depressant which she had been prescribed.  When interviewed under caution, the claimant stated that during an argument in which the deceased accused her of killing her first husband, he handed her a knife which he always carried, saying: “...you might as well finish me off.”  The claimant continued:  “And in the mood I was in, well what was I to do, put it down and say no?  I was fuming.  Insults, insults all the time, goading me on.  I kept telling him for months.  I’d been saying I can’t take it, I can’t take any more.”

7.  So far as I am aware, the claimant did not claim widow’s benefit, but on 22 March 2004 solicitors acting under an Enduring Power of Attorney made a claim for retirement pension on the claimant’s behalf.   On the basis of her own contributions, the claimant was entitled to a retirement pension of £55.76 and in normal circumstances she would have been entitled to a Category B retirement pension of £21.69 and graduated retirement benefit of £00.56 on the basis of the deceased’s contributions.  On 9 December 2004 the Secretary of State made this reference for the determination of whether the forfeiture rule applies to the elements of the retirement pension based on the deceased’s contributions and, if so, whether the effect of the rule should be modified in the circumstances of the case.

8.  It was held in R(FP) 1/05 that the forfeiture rule applies in all cases where a Commissioner is satisfied that the claimant was guilty of manslaughter.  Since there can be no doubt on that matter in this case, I am bound to hold that the rule precludes the claimant from being entitled to benefits resulting from her deceased’s husband’s death.  However, section 4(1A) of the 1982 Act confers on a Commissioner power to make a decision modifying the effect of the rule.  Section 4(1B) provides:

“The Commissioner shall not make a decision under subsection (1A) above modifying the effect of the forfeiture rule in any case unless he is satisfied that having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the Commissioner to be material, the justice of the case requires the effect of the rule to be so modified in that case.”

9.  In CG/2238/1997  the claimant had also been charged with murder following a quarrel in the course of which she stabbed her husband.  She was  convicted on her  plea of guilty to manslaughter and sentenced to two years imprisonment, suspended for two years.  Although she claimed widow’s benefit, her claim was disallowed under the forfeiture rule (without being referred to a Commissioner), but she claimed retirement pension, including pension based on her deceased husband’s contributions,  on reaching the age of sixty some 16 years after her conviction.  Mr Commissioner Rice held:

“...the claimant has already suffered from the effect of the forfeiture rule in that she has lost widow’s benefit.  Moreover, her unlawful killing of the deceased did not automatically bring into effect any benefit from his contributions.  Some 16 years elapsed before the claimant became eligible for a retirement pension.  I also have to bear in mind the observations of the learned trial judge and the limited sentence imposed.  In all the circumstances of the case, I think that this is a case where I should, as far as concerns any improved retirement pension which she might obtain as a result of the deceased’s contributions, relieve the claimant entirely from the effect of the rule.

10.  The present case is strikingly similar to CG/2238/1997, and I have reached the conclusion that I should take the same course as Mr Commissioner Rice.  Section 4(2A) of the 1982 Act requires me to have regard to the conduct of the deceased, and it is clear from the prosecution statement of case that he had been guilty of persistent violent conduct towards the claimant over a long period.  The claimant in this case also received a non-custodial sentence, which appears to have been designed to enable her to continue to receive treatment for her depression.  Although the claimant is claiming the benefit of her deceased husband’s contributions in the form of a Category B retirement pension, it is very probable that she would have received some benefit from those contributions  directly or indirectly in any event.  If  the claimant’s husband had died from natural causes before reaching retirement age (which seems very possible in view of his alcohol intake), the claimant would have received widow’s benefit and a Category B retirement pension based on his contributions.  If  the claimant and her husband had lived together until reaching retirement age, the pension to which he would have been entitled on the basis of his own contributions would have formed part of the household income.  Although I cannot be sure that the claimant did not receive widow’s benefit because of the unlawful killing of the deceased, it seems to me that any culpability of the claimant is outweighed by his conduct towards her, the length of time which has elapsed since her conviction and the very strong possibility that the claimant would have benefitted in some way from her husband’s contributions even if he had not died in the way that he did.

11.   For those reasons, I consider that the justice of this case requires me to modify the effect of the forfeiture rule in relation to both Category B retirement pension and  graduated retirement benefit by affording the claimant complete relief from the effect of the rule.  I am grateful to the Secretary of State for his response to my direction for a submission on Article 1 of Protocol 1 of the European Convention on Human Rights, but in the light of the conclusion I have reached on the way I should exercise my discretion, it is not necessary to consider that matter further.

12.  In accordance with regulation 29 of the Social Security Commissioners (Procedure) Regulations 1999, I refer the case to the Secretary of State to determine the amount payable to the claimant in the light of my decision.

	(signed on the original)	E A L Bano
		Commissioner

		20 January 2006