Secretary of State for Work and Pensions v NC

Imprisonment may both disqualify a claimant from receiving contributory employment and support allowance and, where the disqualification lasts more than six weeks, remove the underlying entitlement. The definition of penalty in regulation 160 of the Employment and Support Allowance Regulations 2008 includes any sentence of imprisonment imposed at the conclusion of criminal proceedings. A claimant with a subsisting award does not need, and is not entitled, to make a new claim after release merely because payments were suspended. The supersession decision must determine entitlement up to its date, including any possible income-related allowance under the old-style scheme.

The Secretary of State appealed against a decision of the First-tier Tribunal dated 29 September 2021. The First-tier Tribunal had allowed the claimant’s appeal and held that he remained entitled to contributory employment and support allowance while imprisoned. The claimant had been in custody from 3 January 2020 and was sentenced to two years’ imprisonment on 13 February 2020. He was released on 21 December 2020.

The issues were whether the sentence was a “penalty” for regulation 160 purposes, whether the claimant retained an underlying entitlement during imprisonment, and whether he needed to make a new claim after release.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and replaced. The claimant was disqualified from receiving contributory employment and support allowance from 3 January to 21 December 2020.
2. Section 18(4)(b) of the Welfare Reform Act 2007 ordinarily disqualifies a person undergoing imprisonment from receiving a contributory allowance. Regulation 160 of the Employment and Support Allowance Regulations 2008 creates exceptions, but regulation 160(2) applies where a penalty is imposed at the conclusion of the criminal proceedings.
3. Reading regulation 160(5)(c) in context and having regard to its legislative antecedents, a sentence of imprisonment imposed at the end of criminal proceedings is a “penalty”. The First-tier Tribunal therefore erred in treating the definition as confined to specified forms of detention for young offenders.
4. Because the disqualification lasted more than six weeks, regulation 159 required the claimant to be treated as not having limited capability for work. That removed his underlying entitlement to contributory employment and support allowance. The Upper Tribunal did not resolve whether that consequence began on 3 January or on the 43rd day of imprisonment, because either construction produced the same result on these facts.
5. The Secretary of State’s decision was defective because it was made after release but did not determine the claimant’s entitlement under the subsisting award between 22 December 2020 and 18 January 2021. A subsisting award may be terminated only by revision or supersession. Suspension of payment does not require or permit a new claim for the same benefit. The purported new claim was unnecessary and impermissible.
6. The Secretary of State was directed to determine any outstanding entitlement to income-related employment and support allowance and entitlement from 22 December 2020. The Upper Tribunal noted that an old-style award had not necessarily been converted into a new-style award.

• Upper Tribunal: Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision dated 29 September 2021, and remade the decision.
• First-tier Tribunal (Social Entitlement Chamber): Allowed the claimant’s appeal against the Secretary of State’s decision and held that he remained entitled to receive contributory employment and support allowance while imprisoned.