is there anyone who can help us with this query?
My understanding of Commissioner’s decision(starred) 10/97 is that at that time Reg.4(i) (b) Social Security (Incapacity Benefit ) Regs 1994 was found not to apply to to those persons who are accepted as incapable of work but who do not receive Incapacity Benefit. The effect of Reg. 4 (i)(b) is that a day shall not be treated as a day for incapacity if it is a day of imprisonment/detention in legal custody. This meant that prisoners receiving credits only could re-qualify for disability on release (as long as medical evidence was accepted for continued incapacity ).The DWP now say that an amendment to Reg 8B (2) (a) (i) Social Security (Credits) Regs in April 03 altered the position. Does this mean Reg 4 (i) (b) now applies to groups receiving credits only. The Commissioner’s decision is unclear as to why it didn’t before. The representative and A.O. seem agreed in this case that Sch. 2 para 12 (i) (b) determines entitlement to D.P. and only need to be incapable for continuous period of 364 days. I can’t see how the amendment to Reg B 2 (a) (i) changes the effect of R(IS) 10/97 to make Reg. 4 (i) (b) (Incapacity Benefit) Regs 1994 applicable to Sch.2 para 12. Any thoughts?

Agwuna

I agree with you. The effect of the 2003 amendment seems to expand the scope of those who are entitled to a credit to those who would have been entitled to ICB if they had applied for it at the relevant time.

If Reg 8B(2)(a)(i) applies as the Department says after the amendment then it must also have done so before the amendment.

The amendment would seem to suggest that the Department's argument may be correct for those people who establish past entitlement to ICB under eligibilty conferred on them by that amendment but would not apply to others. But even this may be stretching a point because as far as I can see Reg 4 establishes that a day in custody (as above) shall not be treated as a day of incapacity for work for the purposes of ICB. If ICB is not an issue because of Reg 4 then this does not "undo" (and neither does the amendment, I think) the fact of whether a day is a day of incapacity for work with regards as to entitlement to a credit.

I cannot see anything in the amendment which appears to narrow the scope in the way that the Department is suggesting.

I am now going for a long lie down!

Regards
Paul