UK Social Security and Child Support Commissioners' Decisions

 


[2004] UKSSCSC CFP_1619_2004 (30 July 2004)

PLH Commissioner's File: CFP 1619/04

FORFEITURE ACT 1982

Commissioners Procedure Regulations 1999 SI No 1495

REFERENCE OF FORFEITURE QUESTION

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Retirement pension

Date of reference: 30 April 2004

1. This reference of a forfeiture question was made to me by the Secretary of State on 30 April 2004 in respect of the claimant's entitlement to retirement pension following the death of her late husband on 10 September 2000.
2. According to the information provided by the Secretary of State in response to the direction of the Legal Officer the claimant, who has for some time been resident in Australia, was in receipt of retirement pension and ordinarily would have qualified on her husband's death for this to be increased to reflect the greater entitlement of a widow to category B retirement pension on her late husband's contributions under section 48B Social Security Contributions and Benefits Act 1992, and increments under schedule 5 to take account of the deferred start of his pension. In August 2001 the claimant contacted the department to tell them her husband had died, and in the following few months is recorded as having continued to press for the position about her own pension to be sorted out as soon as possible: see the note of 30 November 2001 at page 9. It appears she was in fact awarded an increase of some £9.65 a week in her retirement pension on the basis of the information then provided: page 33.
3. On 9 May 2002 however, the claimant was convicted in the Supreme Court of Victoria of the murder of her late husband; and it is in consequence of that conviction that a forfeiture question under section 4 Forfeiture Act 1982 is required to be referred to and determined by a Commissioner, notwithstanding anything in any other enactment: section 4(1) ibid. That conviction still stands, and a later appeal by the claimant was confined to the length of the sentence of imprisonment imposed on her. In those unhappy circumstances, there can be no doubt that the forfeiture rule as defined by section 1 of the 1982 Act applies to preclude the claimant from being entitled to any benefit from the increases in retirement pension which would otherwise have been payable to her by reason of her husband's death, and I so determine. Because of the nature of the conviction, I have no discretion to modify the effect of the rule in her favour under section 4(1A) and the forfeiture is mandatory: see section 5 ibid.
4. I therefore remit the case in accordance with rule 29 of the Commissioners' Procedure Regulations to the Secretary of State for the claimant's entitlement to be redetermined accordingly so as to exclude the extra amounts to which she would otherwise have been entitled as a pensioner who becomes a widow. I have noted the claimant's own observations received on 9 June 2004 at pages 29-31 where she says she never applied for a British pension, and I am sorry if being notified of the Secretary of State's reference caused her distress. However I am satisfied he was entirely right to make it, as the UK legislation makes it compulsory in these circumstances for there to be a formal determination on whether a person's benefits are affected by a forfeiture, and the determination has to be made by a Commissioner. There is a separate question to be addressed whether the claimant is disqualified under section 113 Social Security Contributions and Benefits Act 1992 from actually receiving any pension to which she remains entitled while still undergoing her sentence of imprisonment, but that too is a matter for the Secretary of State in the first instance.

(Signed)

P L Howell

Commissioner

30 July 2004