Upper Tribunal (Administrative Appeals Chamber)

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URL: http://www.bailii.org/uk/cases/UKUT/AAC/2014/237.html
Cite as: [2014] UKUT 237 (AAC)

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BC v Secretary of State for Work and Pensions (Retirement pensions : other) [2014] UKUT 237 (AAC) (15 May 2014)

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

 

 

Before Upper Tribunal Judge Gray

 

Decision      

 

The claimant is precluded by virtue of the forfeiture rule in 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. 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.  The relief applies in respect of any other relevant benefit claimed.

 

Reasons

 

The issues

1. The Secretary of State has referred this claim for a retirement pension and graduated retirement benefit to the Upper Tribunal under section 4 (5) of the Forfeiture Act 1982 and rule 26 of the Tribunal Procedure (Upper Tribunal) Rules 2008 because the claimant was convicted of the manslaughter of her late husband.
2. There is a rule of public policy that nobody who has unlawfully killed another may benefit as a consequence that person’s death. This is called the forfeiture rule, and it is set out in section 1 of the Forfeiture Act 1982 (the Act). There is, however, the possibility of what is called in legal terms relief from forfeiture.  This is a remedy under section 4 (1A) of the Act which contains the power to modify the effect of the forfeiture rule, where it is found to apply. That relief may be granted by a judge of the Upper Tribunal.
3. In this case I have to decide initially whether or not the forfeiture rule applies.  If it does I then decide whether to refuse relief, which would mean that the claimant could not rely on her late husband’s national insurance contributions when claiming a pension or other contributory benefit; whether I allow full relief from the effects of the forfeiture rule, which would mean that she could rely on all his contributions when claiming any benefit or I am able to grant partial relief, so that she could rely on some of his contributions, allowing her to have only part of the pension, or only for part of the time.
4. I have recently had the benefit of a letter from the claimant’s appointee, her daughter, who is the daughter also of the deceased.  I wish to express my gratitude to the appointee for her fortitude in revisiting what have clearly been very difficult times in her past in order to furnish me with helpful information.

 

The Secretary of State’s reference

5. I need deal neither with the details of the pension claim, nor the financial effects of any forfeiture decision as these matters are adequately set out in the Secretary of State’s reference. I will look simply at the relevant facts for the purposes of the decision that I must make.
6. I initially had very little information, the Secretary of State having been unable to obtain other than the essential relevant details due to the routine destruction of court records. There is a brief press report in the Secretary of State’s referral, and the death certificate, but nothing else.  As I have said above I now have some useful detail of the background from the appointee.
7. Whilst I appreciate that the Secretary of State takes a neutral stance in such cases merely referring the matter to the Upper Tribunal as he must, I gave him the opportunity to comment upon the information from the appointee. I am grateful to Mr Kendall, who provided the submission, for his sensitive observations.  In essence the Secretary of State is of the view that, whilst the matter is one from me, it would not be unreasonable for any modification of the forfeiture rule, which he rightly says is applicable, to reflect the lenient view taken by the judge at the Central Criminal Court.  

 

 

The facts

8. During the course of a violent argument which took place on the evening of 31 August 1993 the claimant stabbed her husband, who died from the wound that day.
9. The death certificate was issued in the registration district of Lewisham on 10/09/1993. The deceased’s details are given, including his date of birth 15/04/1926, which means that he was aged 63 at the time of his death. He is said in the certificate to have been retired. The cause of death is stated to have been a stab wound to the heart.
10. The short press report which I have adds a little to the background. It is from the Bromley News of 8/09/1993.  It states that a 59 year old local woman had appeared in court charged with the murder of her husband. She had been remanded on bail by Greenwich magistrates. The report indicates that police were called to a local address by the ambulance service on Tuesday, August 31 at 7:30 PM. The victim was taken to Lewisham Hospital, and pronounced dead on arrival.  The post-mortem report found the cause of death to be established as a stab wound to the heart. It asks for information, giving a contact number. 
11. Although she may initially have been charged with murder, the claimant was convicted of the manslaughter of her husband at the Central Criminal Court on 14/03/1994. She was convicted upon her own plea of guilty, and was not sentenced, but was placed upon probation for three years with a condition of regular treatment with a named psychiatrist, the extent of the treatment being at his direction. I phrase the result of the case in that way, because a probation order is not a sentence as such, and that itself is a relevant factor in my determination. The claimant had been on bail whilst awaiting trial. 
12. The lenient manner in which this crime was dealt with speaks volumes as to the judge’s view of claimant’s culpability, and due to that I have no hesitation in accepting the account of the appointee, which sets out what might be termed mitigating circumstances.

 

 

The appointee’s evidence

13. I should say at the outset that the appointee has been frank and seemingly objective in her account to me. She has not sought to exonerate her mother from all responsibility for either the death of her father or the difficult domestic circumstances from which this tragic event arose. She quite naturally has an attachment to both of her parents. I am firmly of the view that she has tried to be impartial and accurate in her account to me.
14. I can summarise her evidence.  She explains that her mother and father had four children, she being the youngest.  There had been a long history of domestic violence within the family.  Her mother had originally been the victim of that, although she then became an abuser.  The violence was so severe that she wished that they would leave each other, but as she grew older she understood the difficulties of their relationship, and had the realisation that they could neither live together nor apart.  She told me about the injuries that her mother had suffered from her father’s violence towards her, which was regular and severe. She also told me about injuries that her mother had inflicted upon her father.
15. The violence stemmed from alcohol abuse. She has explained to me that at the time of the fatal violent incident both were drunk.
16. The case clearly acquired some notoriety, and the appointee, who would have been a young woman at that time, recalls the unwanted attention of the press.  Her mother was offered very considerable sums of money, from one newspaper £10,000, which in 1994 was indeed a large sum, for her story, but the family wished to put the past behind them. 
17. The children have stood by their mother.  The appointee tells me that had the position been reversed they would have stood by their father too.  She explains that when they were not in drink they were both good parents. Despite the difficulties of their upbringing they clearly are a close and supportive family.
18. Within the family the matter was considered to be closed following the court case.

 

The Trial

19. It has been very difficult for the appointee to relate her memories of the court case. She tells me, and I accept, that the plea was made upon the basis of diminished responsibility.
20. Each child gave evidence in the witness box at the Old Bailey. They all were asked to give their interpretation of the life of their mother and father.  She recalls that each of them said that they felt that the violence within the family was at such a level that one day one of their parents would be killed.  There was additionally evidence from the family’s GP, and consultants. 
21. She recalls the judge saying in his sentencing remarks that the situation was one where it was only a matter of time before one or the other died, and that her mother, to whom he referred as “this lady” had quite clearly suffered extreme violence all of her married life. She suffered from diminished responsibility, a moment of mental relapse.  He said that the court could as easily have been dealing with a case where the father had been the perpetrator and the mother the victim.
22. I have already referred to the lenient way in which the court dealt with. the claimant

 

Other matters

23. The claimant’s current circumstances can be taken into account.  She claimed retirement pension on 10/10/2011, following a long period of deferral.  She is now approaching 80 years of age, having been born on 16/11/1934.          .
24. She suffers from dementia and chronic obstructive pulmonary disease. She also has orthopaedic problems, which the appointee feels relate to the violence that she suffered during her marriage.

 

My decision

25. Clearly the forfeiture rule applies to the claimant; there is no dispute that she caused the death of her husband, however this is a case where it is proper for me to grant full relief from the effects of the forfeiture provisions. 
26. It is appropriate and just for me in my decision to reflect the fact that the claimant was not sentenced but offered support and medical treatment by the court. I do so. The humane and lenient treatment of the mother by a judge of very considerable seniority is a clear indication that, whilst no taking of life can be condoned, this death occurred in the context of a continual pattern of violent abuse which had so affected the claimant that in this confrontation she was not able to offer rational defence.   Her attack upon her husband occurred during a time when she was not fully accountable for the consequences of her actions. That is the effect of the acceptance of her plea on the basis of diminished responsibility.
27. Any claim for pension or other relevant contributory benefit made by or on behalf of the claimant is to be met in full without any deduction because of her conviction in 1994 of her husband’s manslaughter in 1993.

 

 

 

PA Gray

Judge of the Upper Tribunal      

 

Signed on the original on 15 May 2014