Disqualification of Incapacity Benefit due to imprisonment

Hi all
I have a dilemma that I would appreciate your views on. An IB claimant was sentenced to prison and so his IB was suspended. The individual was in prison for 3 months and when he was released forced to apply for ESA. Is it not the case that the claimant was in incapable of work but not allowed to receive payment of benefits whilst in Prison and on his release the suspended payment should be reinstated or am I reading this completely wrong.

I am no expert on the techie processes relating to IB / ESA.  However, one random thought did spring to mind and maybe other posters can confirm or despatch accordingly (as well as add a bit of technical know how).

Was IB definitely SUSPENDED or was a proper decision made to the effect there was no longer entitlement?

If merely suspended, I wonder if it could be argued that a “closed period supersession” (“CPS”) should apply to the effect that the “currency” of the IB award never ended and, as such, it remained “live”.  Relevant CD (as a starting point) would be CIS/2595/2003.  Of course, if a gap in entitlement (distinguished from “award”) triggers a switch over to ESA, then the “CPS” argument is dead and buried.

Unfortunately, thereendeth my knowledge (and energy…..).

Hi
The fog is now starting to clear the client has informed me his IB was not suspended but he was disqualified which does put this in a different light, but thanks for your view and comments

I have a similar question. Client on IB, he tells us that after over 13 weeks in prison, he is told on enquiring after release that he must now claim ESA. We’ve not checked the details ourselves*, but is there any rule that an incap determination lapses on going to prison? Doesn’t he retain a credits only claim?

[* the details of his claim history… I have tried to find the answer in CPAG ]

I looked into this for a client of mine recently and I think (!) the answer is no. As far as I can see, once the client starts to serve a custodial sentence entitlement (both to IB payments and credits) ceases (and therefore the lack of linking rules means ESA must be claimed on release). I went round the houses a bit on it though so am happy to be convinced otherwise.

I can’t find a definitive answer, but here’s what the DMG says:

12002 Claimants are disqualified from receiving these benefits when they are imprisoned or detained in legal custody following criminal proceedings1. Disqualification only affects the payability of the benefit not claimants’ entitlement to that benefit2. This means that when the conditions supporting the disqualification no longer apply, payment of benefit can resume providing all the conditions of entitlement remain satisfied. Unless entitlement has been terminated during the period of imprisonment or detention in legal custody, a claimant should not be required to make a new claim to benefit on release.
1 SS CB Act 92, s 113(1)(b); 2 CDLA/1930/04

So what terminates entitlement? For ESA at least, a claimant in prison can be treated as not having LCW, but I don’t see how that terminates entitlement..

53112 The claimant is to be treated as not having LCW if they are disqualified for receiving ESA(Cont) during a period of imprisonment or detention in legal custody if that disqualification is for more than 6 weeks1 (see DMG Chapter 42).
1 ESA Regs, reg 159(1)

Same thing for IB - its in reg 4(1)(b) of the IB regs

4.—(1) For the purposes of incapacity benefit a day shall not be treated as a
day of incapacity for work if it is–

(b) a day on which a person is disqualified for receiving incapacity benefit
during a period of absence from Great Britain or imprisonment or detention in
legal custody, if that disqualification is for more than 6 weeks

Thanks. So: being disqualified from receiving IB leads to a break in incapacity for work, hence no further entitlement, hence ESA claim required. Bah.

(I just couldn’t see this simply spelled out anywhere, though I would say prison rights is one of the better areas to be covered by CitA’s leaflets:
http://www.adviceguide.org.uk/england/p_prisoners_and_benefits.pdf
“On conviction, you can’t get increases to Industrial Injuries Disablement Benefit and you lose your right to other benefits for sickness, disability or maternity.” )

a disqualification is not the same as a disallowance, and the disqualification decision should have been lifted when he was discharged from prison, ie the disqualification from receiving payments should have ended.  he wasn’t required to make a new claim.

I also had a similar case some months ago as client had his incapacity benefit stopped whilst being arrested for failing to appear for sentence at courrt. Client was then REMANDED in CUSTODY pending sentence which turned out to be a fine at court. I argued that the claim is merely ‘suspended’ and not stopped completely stopped as client was REMANDED pending sentence and not in prison as a result of actually being sentenced to a term of imprisonment - the DWP went along with it and reinstated his IB.

Albeit you might suspect a migration decision might not be long in coming…