An unusual case recently came before the Upper Tribunal, considering an issue under the Forfeiture Act 1982. The forfeiture rule says that a person cannot benefit from their own wrongdoing, especially if that wrongdoing results in the death of another person. The rule means that if someone kills a person, they cannot rely on that person’s death to obtain benefits.
In the court case in question, the claimant, now deceased, was married to a farmer for 30 years. She found out that her husband was having an affair which led to her suffering severe reactive depression. One evening she shot him in the side with a shotgun causing his death three weeks later. At her trial, she pleaded guilty to manslaughter on the basis of diminished responsibility and was sentenced to three years’ imprisonment.
Following her release from prison, little is known about what the claimant did with her life. There is no evidence that she received any means-tested social security benefits, a claim was made for state pension credit, but payments were never made. For a few months before she died, the claimant was in a nursing home, and she received means-tested support with the cost of fees.
When the claimant was released from prison, the Department of Work and Pensions did not consider a forfeiture reference, and she was paid her own reduced retirement pension. If the forfeiture rule had not been applied, the claimant would have been paid a basic pension and an additional pension based on her late husband’s national insurance contributions. The Department calculated that the total under-payment from the date of her release from prison to her death was £78,433.84.
Two issues needed to be addressed, the first was whether the forfeiture rule applied in this case, the second was whether the rule should be modified in this case.
The answer to the first question was yes, as the claimant had unlawfully killed her husband. The more complex question was the second one; the Tribunal had to ask whether, having regard to the conduct of the offender and of the deceased and to such other circumstances that appear to be material, the justice of the case requires the effect of the rule to be so modified in that case.
The Upper Tribunal held that the rule should be modified. The fact that the claimant’s conviction was based on diminished responsibility demonstrates that she had reduced responsibility for the death of her husband, with powerful mitigating circumstances on the evening in question. The Court of Appeal, when considering an appeal against sentence, commented on her previous good character, unhappy marriage and genuine remorse. The trial judge had said, on the other hand, that her responsibility was not merely minimal as there had been evidence of an “element of deliberation”.
The case, by law, should have been referred to the Commissioners (as the Upper Tribunal would have been referred to at the time) when the claimant was released from prison. It would appear the Department either overlooked or ignored the issue of the forfeiture rule. It was not appropriate to consider the delay as a factor in terms of the test, but it was not entirely irrelevant. The Upper Tribunal had to be put in the position as if the decision about the rule was being made back in 1989 when the claimant was released from prison.
The conclusion reached was that substantial modification of the rule was required. The claimant’s conduct involved more than a minimal degree of responsibility, so it was not a case that required public policy to have no effect. The appropriate balancing of the competing considerations was to modify the application of the rule so that it applied to forfeit one-quarter of the sum in issue. The balance was due to the claimant’s estate.
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