I've got a case where my client, who has been in receipt of IB for a number of years, was sentenced to 5 months imprisonment. This led to his Incapacity based IS claim being canceled.

Can anyone confirm if, with the demise of IB, the linking rules still apply, and if so, how does this effect any future claim, now that ESA is all that can be claimed and this no longer has DP included?

Also, I've had a run of Incapacity based IS claims that have been cancelled, but not due to the conditions of entitlement bringing the claim to an end. Is there any remedy as regards the continuation of IB, even though not entitled to IS anymore?

Thanks

Was he actually sentenced and not on remand? If so, your onto plums with the linking. The linking only applies if you came off IB/IS to go to work. If he was only on remand, he should get the backdated IB, or go back onto the level of IS that he was on previously.

I'm not sure I understand your second question (it's been a hard week). Were the claims already in payment when they ended or were they never processed? We're seeing lots of IB50s at the moment - many people on IS are being sent them every three months. Is it possible that your clients didn't return their IB50?

Thanks for getting back to me. He was sentenced for 5 months, but only served 11 weeks, so HB was OK, but he had to claim ESA. Obviously, when IB was still around, the claim would have been reinstated with the DP intact, assuming claim was made within the time guidelines, but now we have ESA and the claimant loses all that protection?

As for the second question, yes there seems to be a plot (hope I don't sound too conpiracy theorist!). I've been getting lots of IB related IS claims ending, usually because JCP claim no sickness certs have been sent in, when they have. As for the IB50, yes that does seem to be a problem too, but I've had a few where there is no explanation, the claim has just stopped and JCP have not even notified the claimant of the reasons.

Conspiracy theorist? Is that not a standard part of the person spec for welfs?

I've had a couple of clients recently who have had to claim ESA on being released - it does seem unfair as, had they been able to claim IS, they would probably have qualified for the DP.

I've been looking into this recently. In my client's case he was on remand and so remained in period of incapacity for work and entitled to IS (with an applicable amount of nil).

However, the decision from the JC was that the client is "disqualified" from IB and as the disqualificaiton was longer than six weeks, he was no longer incapable of work. That was wrong and when I challenged it I was told that no-one ever challenges these and this is how it's always done for all prisoners (no distinction with 'remand' or 'convicted' prisoners). Interestingly, the decision for my client was made after confirmation from a prison officer that the client had been convicted, which was wrong.

The situation now is that the client is receiving ESA and we are appealing the decisions to 1) remove IS entitlment when the client went to prison and 2) to refuse IS on the new claim. In past cases involving transitional issues we've also appealed the ESA awarding decision, but we're not doing that this time around.

I also checked up the situation with convicted prisoners and could find no legal back up for the view that any prisoner loses their period of incapacity for work, which might bring into play the transitional regs.

I was left with a worrying train of thought that many, many people have lost out here. Particularly worrying was the Jobcentre's ready acceptance of unevidenced information from prison officers and thier misinterpretation of the 'disqualification' rule, which I have come across before in cases not involving prisoners.

' I was told that no-one ever challenges these and this is how it's always done for all prisoners (no distinction with 'remand' or 'convicted' prisoners). '

... neither do they distinguish between those who are convicted and imprisoned, and those who are convicted but given a suspended sentence and remain free. (We had a case only this week.)

For anyone who is interested, the Decision Makers Guide has a whole chapter devoted to Benefits and Prisoners at http://www.dwp.gov.uk/docs/ch12-23255.pdf

I was particularly interested in para 12055. This refers to R(S) 1/71. So far I've only been able to find a summary of this decision. If anyone has a full copy I'd be grateful to receive it.

Ruth

Before ESA was introduced I had two cases in a row of convicted prisoners serving over 8 weeks, reclaiming IS due to incapacity on release and being told they had to wait 364 days again before getting the Disability Premium again. I eventually got the Decision Maker to accept the reasoning in CIS/15611/96, that if continuous incapacity while in prison could be proved then this linked two claims. Then ESA was introduced and this seemed to go out of the window.

My initial reading of ESA and the linking rules is that if someone is convicted, and is in prison over 8 weeks, then any previous IS or IB claim will not link. They need to claim ESA and so continuous incapacity is irrelevant.

However, Tony makes an interesting point about whether continuous incapacity could still link the claims even if all other entitlement has been broken for over 8 weeks, has anyone found anything in the linking rules regarding this?

I'm dealing with the case of a prisoner getting IB who served 10 weeks after being convicted.

My reading of the Social Security (General Benefit) Regs 1982 (p 610 in vol 3 annotated legislation) is that if they are remanded in custody, their IB is suspended (and so they can still be in a PIW), and can then go back onto IB on release if acquitted or receive a non-custodial sentence,

But if they are sentenced to a term of imprisonment (including a suspended prison sentence), they may still be ICW, but they are disqualified from IB, and it's this which breaks the linking period, obliging them to claim ESA on release.

For the sake of the client, I hope I'm wrong!

I think there's hope for your client Neil...

The ESA (TP) regs reg 2(1) says that a claim for IB/SDA/IS "in respect of a period that begins on or after the 'appointed day' (the introduction of ESA) is to be treated as a claim for ESA.

IMO the word 'period' refers to a 'period of limited capability for work', and so claims for IB/SDA or IS for periods that began before the appointed day must be dealt with as claims for those benefits as the 'period' will be one of 'incapacity for work'. If it referred to a period of benefit entitlement then there seems to me to be little use for reg 2(2) so I really don't think that is is the case (though I'm sure the DWP could find some argument there...).

2(2)(a) refers to the ordinary linking rules for IB/SDA, but the linking rules are in respect of periods of incapacity for work and not entitlement to benefit.

Therefore, if a convicted prisoner remains in a continous period of incapacity for work, without or without the help of the linking rules, then it is my view that he can claim IB once any suspension or disqualification has ended, and this will be the case (subject to legislative changes) for someone that leaves prison at any time in the future and regardless of the length of stay (although I would image that the longer the stay the harder it will be to prove continous IFW (do prisons doctors issue sick notes...?).

The problem is that a convicted prisoner does not remain in a continuous period of incapacity for work, because days of disqualification over 6 weeks are not treated as days of incapacity for work by virtue of reg 4 of the ICB Regs.

Yes... that could be a hurdle. Not sure how I missed it but thanks for picking it up Paul.

There's another one. It's been said on this thread that the 8-week linking rule doesn't kick in for prisoners. However,s.30C SSCBA does not confirm this, and neither can I find confirmation in the IB regs or GenBen regs. If that is not true, then Neil's client is still OK.