JC v Secretary of State for Work and Pensions (ESA)

A person imprisoned for civil contempt by a civil court is not a “prisoner” for the purposes of regulation 69(2) of the Employment and Support Allowance Regulations 2008. The regulation must be read consistently with section 113(1)(b) of the Social Security Contributions and Benefits Act 1992, which excludes benefit only where imprisonment or detention is imposed in the exercise of criminal jurisdiction.

The phrase concerning detention under a sentence imposed by a court is therefore confined to sentences connected with criminal proceedings or imposed by a criminal court. A claimant’s entitlement to income-related employment and support allowance does not cease merely because the claimant is imprisoned by a civil court for disobeying an injunction.

The appellant had been entitled to income-related employment and support allowance from November 2019. In September 2020 he was arrested under a civil warrant issued by a county court and was imprisoned for contempt arising from breach of an injunction.

The Secretary of State ended his entitlement from 4 September 2020 under regulation 69(2) of the Employment and Support Allowance Regulations 2008. The First-tier Tribunal dismissed his appeal on 18 August 2022. On appeal, both parties accepted that the First-tier Tribunal had erred in law. The remaining issue was whether the Upper Tribunal should remit the matter or remake the decision.

1. Appeal allowed. The First-tier Tribunal had made a material error of law by treating the appellant as a prisoner under regulation 69(2) of the Employment and Support Allowance Regulations 2008.

2. Regulation 69(2) had to be interpreted consistently with section 113(1)(b) of the Social Security Contributions and Benefits Act 1992. The latter provision had been restrictively construed in R(S) 8/79: imprisonment for this purpose is imprisonment imposed by a court exercising criminal jurisdiction.

3. The references in regulation 69(2) to detention pending trial or sentence on conviction, and to detention under a sentence imposed by a court, concern criminal proceedings and criminal sentences. They do not extend to imprisonment imposed by a civil court for civil contempt, even though such contempt may result in imprisonment.

4. The appellant was arrested on a civil warrant and imprisoned by a civil court. He was therefore not a prisoner within regulation 69(2), and his entitlement to ESA(IR) should have continued from 4 September 2020.

5. Under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal set aside the First-tier Tribunal’s decision and remade it. There was no remaining factual or evidential dispute, and remittal would cause further delay. The Secretary of State’s decision of 10 September 2020 was wrong in law.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision, and remade the decision in the appellant’s favour: [2024] UKUT 13 (AAC).

• First-tier Tribunal (Social Entitlement Chamber): Dismissed the appellant’s appeal against the Secretary of State’s cessation decision on 18 August 2022.

• Secretary of State for Work and Pensions: Decided on 10 September 2020 that entitlement to ESA(IR) ended from 4 September 2020.