Social Security Case Law - Spring 2024

Headnote

ESA case.  The term ‘prisoner’ in relation to eligibility for ESA does not include those sentenced to imprisonment by the civil courts for civil offences.

Background

The Applicant was entitled to Income Related Employment and Support Allowance (ESA) from 2019.  The Applicant was arrested in September 2020 and found guilty of contempt of court in relation to an injunction issued by the court in March 2019.  The Applicant was then admitted to HMP Birmingham on 04/09/20 until the 14/10/20 pending sentence, and from 14/10/20 – 02/11/20 under the sentence imposed by the court.  When released from custody on 02/11/20, the Applicant requested that his award of ESA be reinstated following his release.  The Applicant was advised by the Respondent that his ESA award could not be reinstated and he would have to make a claim for Universal Credit.

The Secretary of State had decided on 10/09/20 to end the Applicant’s entitlement to ESA from 04/09/20 on the basis of Regulation 69(2) of the Employment and Support Regulations 2008 on the basis that he was a prisoner – detained in custody pending trial or sentence on conviction or under a sentence imposed by the court.

The Applicant appealed to the FfT which was dismissed.  The Applicant appealed to the Upper Tribunal.

Legal Issue

Whether the definition of prisoner in Regulation 69(2) of the Employment and Support Allowance Regulations 2008 (‘(a) detained in custody pending trial or sentence on conviction or under a sentence imposed by a court’) includes those sentenced to imprisonment for civil contempt of court by the civil courts and those detained pending trial, conviction or sentence or thereafter sentenced to imprisonment by the criminal courts or for criminal offences.

Decision

The appeal against the decision of the FTT was allowed and the decision was set aside and re-made in his favour.  The Applicant is entitled to ESA from September 2020 (as he had been since November 2019).

The Judge found that the definition of prisoner in Regulation 69(2) of the Employment and Support Allowance Regulations 2008 (‘(a) detained in custody pending trial or sentence on conviction or under a sentence imposed by a court’) does not include those sentenced to imprisonment for civil contempt of court by the civil courts but only to those detained pending trial, conviction or sentence or thereafter sentenced to imprisonment by the criminal courts or for criminal offences.

The Appellant was not a prisoner within the definition of Regulation 69(2) on sentence by the civil court for civil contempt of court and was therefore entitled to Income Related ESA.