ESA and prison

The client was iro IR-ESA in the Support Group until the end of 2016. However, this stopped when he was arrested and imprisoned on remand. He was never convicted and reclaimed ESA on his release 13 weeks later. This was treated as a new claim as there was a break of over 12 weeks between the two and client was put in the assessment phase. Since then he has been in and out of prison on remand (but never convicted). This has lead to various different claims being made, all with gaps of less than 12 weeks. However, due to the disruption of prison, he has never been assessed for LCfW. The DWP say that if he is now assessed, the last few claims will be linked and any increase due to LCfW will be paid from the 92nd day of ESA entitlement.

I am going round in circles trying to work out if this is correct. I initially thought that, whilst he would not be entitled to ESA on remand, he should still have LCfW and therefore a credits only claim throughout the periods he was in and out of prison - in which case it would only be a change of circumstance when he was released and he should be put back in the Support Group.

I’ve now looked at Regulation 159 of the ESA Regulations 2008. I think this means:
- if he had had entitlement to C-ESA he would still be treated as having LCfW unless sentenced for more than 6 weeks
- However, if no C-ESA is payable, he would only retain LCfW for IR-ESA if he had some entitlement to this in prison (ie if he had housing costs)
- Therefore, in client’s case, as he received no ESA (C or IR) he would lose his LCfW from the outset of imprisonment and therefore would have had to make new (possibly linked) claims on his release.

I can’t help feeling that this must be wrong and I am misinterpreting it. Can anyone shed any light on the matter. Thanks.

I think there are two obstacles to get over.

The first is the construction of Reg 159.  Does para (1) apply even to someone who did not have a contributory allowance in the first place?  Does it suppress LCW for someone who was only getting ESA(ir) and who would have been disqualified for ESA(c) if they had been on it? Or does it only apply to people with ESA(c) (except those with an income-related top-up for housing costs).  You will want to argue that Reg 159(1) only “bites” if the claimant is otherwise entitled to a contributory allowance.  I think that is a natural reading of s18(4), under which Reg 159 is made.

But then you have another problem.  We are back to the old question whether LCW is a free-standing portable status or whether it can only exist where there is an award of ESA (or UC).

The way I read the Regs, a person in prison is not deemed to have lost their LCW for the purpose of ESA(ir) in the same way they lose it for the purpose of ESA(c), because the same result is achieved by giving them an applicable amount of nil under Schedule 5: either way, you are not entitled to ESA(ir).  Some would argue that losing entitlement to ESA(ir) means that you have also by definition ceased to have LCW (Tom H especially).  That is the question that any appeal would turn on - did the claimant’s underlying LCW remain in place during the longer period of imprisonment in which there was no ESA(ir) due to the applicable amount being nil.

Thanks for your input. I’m still not certain but the client didn’t turn up for his appointment today.