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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Advice needed - effect on entitlement if held in custody + released with suspended sentence

SueLov
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Welfare rights officer - Cornwall Council

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Total Posts: 32

Joined: 22 June 2010

Have no experience re : benefit status for prisoners , people held in custody etc - would appreciate some help to check my understanding correct and DWP have taken correct action .

ESAIR awarded with SG
Claimant arrested , held in custody for 19 weeks , released with suspended sentence
On day of release new ESA claim was made - he was paid assessment rate until assessment completed and decison made to award SG wef 14 weeks after date of initial claim .

My understanding is : a claimant’s ESA is stopped whilst in custody ie :  his Approp.Amount is £NIL+Hsg Costs(If any) - the decision to stop ESA relates only to ‘payability’ not ‘entitlement’ .

The DWP have issuued a decision letter stating “... entitlement ended when he went into prison…” and “.. he had to reclaim upon his release ... ” and then “.... gap between two claims exceeds the 12 week linking period so no continuing entitlement to SG from ‘date of release’ ....” .

I do not know what being ‘released with suspended sentence’  means in terms of the definition used in benefit regulations and consequently cannot clarify effect on ‘benefit entitlement’ - does it end ‘entitlement’ ? If yes , when ? 

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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Glimpsing this and casting my mind back to the old IB regime; it was payability until the 12 week linking period elapsed then it became a disentitlement decision.

ruthch
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Senior Welfare Rights officer Tameside Welfare Rights Service Greater Manchester

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I think the DWP is correct here. A suspended sentence is treated as a custodial sentence for benefit purposes, and there is no entitlement for the 19 weeks the claimant has been in prison. As the gap is longer than 12 weeks, the claims cannot be linked together, so your client has to start again in the assessment phase.
If a remand prisoner is given non- custodial sentence, or cleared of the charges, there might be some entitlement to contributory benefits or housing costs for the period on remand, but that doesn’t apply in this case. The CPAG handbook pages 958 to 966 explain benefit entitlement for prisoners.

SueLov
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Welfare rights officer - Cornwall Council

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Total Posts: 32

Joined: 22 June 2010

Thank you Ruth .