The Secretary of State for the Department of Work and Pensions v LK (RP)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Jones |
| Neutral Citation | [2019] UKUT 421 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Forfeiture,Retirement pensions,Jones,R |
| Date | 30 September 2019 |
| Published date | 01 December 2020 |
The Secretary of State for the Department of Work and Pensions v LK (RP)
[2019] UKUT 421 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No: CFP/1016/2019
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Jones
DECISION
The Upper Tribunal decided that the Claimant is not precluded by virtue
of the forfeiture rule as defined in section 1 of the Forfeiture Act 1982
from receiving a Category B retirement pension from 29 August 2007.
The Upper Tribunal is satisfied that the forfeiture rule does not apply to
the Claimant. It is not satisfied that the Claimant unlawfully killed her
late husband.
Therefore, no questions arise for determination as to whether the
Claimant obtained a benefit in consequence of an unlawful killing nor
whether the effect of the forfeiture rule should be modified. She is not
precluded from obtaining the benefit of h er category B pension. There
should be no reduction in the Claimant’s current and future pension
entitlement nor has there been any overpayment of past pension
payments which might be recovered.
This decision is made under sections 1 and 4 of the Forfeiture Act 1982
and Rules 26 and 34 of the Tribunal Procedure (Upper Tribunal) Rules
2008.
REASONS
The reference
1. The Secretary of State for the Department for Work and Pensions (‘the
Secretary of State’) made a reference to the Upper Tribunal on 17 April 2019
under section 4 of the Forfeiture Act 1982 (‘the Act’) and Rule 26 of the
Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the Upper Tribunal Rules
2008’).
2. The reference is to determine whether the Claimant is precluded by
virtue of the rule of public policy known as the forfeiture rule from receiving
a Category B retirement pension which she has received since 29 August
2007. That pension is higher than it would otherwise be because she is
receiving the benefit of her late husband’s national insurance contributions.
3. The primary question of fact I have to determine is whether the
Claimant unlawfully killed her late husband. If so, I will have to decide
The Secretary of State for the Department of Work and Pensions v LK (RP)
[2019] UKUT 421 (AAC)
Upper Tribunal Case No: CFP/1016/2019
2
whether she obtained a benefit in consequence and whether the effect of the
rule should be modified nonetheless.
The issues in the case
4. The facts of this reference give rise to three issues:
a) whether the Claimant unlawfully killed her late husband such that the
forfeiture rule applies pursuant to section 1(1) of the Act and she should be
precluded from receiving the benefit of her husband’s national insurance
contributions in the form of a Category B retirement pension;
b) whether the Secretary of State’s case should be struck out under Rule
8(3)(c) of the Upper Tribunal Rules 2008 because there is no reasonable
prospect of it succeeding; and
c) whether the reference constitutes an abuse of process.
Issue 1 – whether the Claimant unlawfully killed her late husband such
that the forfeiture rule applies
The Law
The Forfeiture Act 1982 and Upper Tribunal Rules 2008
5. Section 1(1) of the Act provides that: ‘the “forfeiture rule” means 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.’
6. Sections 4(1), (1A), (1B) and 5 of the Act provide:
‘4 [Upper Tribunal] to decide whether rule applies to social security
benefits
(1) Where a question arises as to whether, if a person were otherwise
entitled to or eligible for any benefit or advantage u nder a relevant
enactment, he would be precluded by virtue of the forfeiture rule from
receiving the whole or part of the benefit or advantage, that question shall
(notwithstanding anything in any relevant enactment) be determined by
[the Upper Tribunal].
(1A) Where [the Upper Tribunal] determines that the forfeiture rule has
precluded a person (in this section referred to as “the offender”) who has
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In the estate of ES (deceased)
...helpful throughout.) I simply note this is not the first occasion on which a very late reference has been made (see SSWP v LK (RP) [2019] UKUT 421 (AAC). 17. However, it would not be appropriate to treat the Department’s inordinate delay as a factor which weighs in the balance under section......