The Employment and Support Allowance Regulations 2008

Exceptions from disqualification for imprisonment E+W+S

160.—(1) Notwithstanding section 18(4)(b) of the Act, a claimant is not disqualified for receiving a contributory allowance for any period during which that claimant is undergoing imprisonment or detention in legal custody—

(a) in connection with a charge brought or intended to be brought against the claimant in criminal proceedings;

(b) pursuant to any sentence; or

(c) pursuant to any order for detention,

made by a court in such proceedings, unless paragraph (2) applies.

(2) This paragraph applies where—

(a) a penalty is imposed on the claimant at the conclusion of the proceedings referred to in paragraph (1); or

(b) in the case of default of payment of a sum adjudged to be paid on conviction a penalty is imposed in respect of such default.

(3) Notwithstanding section 18(4)(b) of the Act, a claimant [F1 (“C”)] is not to be disqualified for receiving a contributory allowance, for any period during which [F2 C] is undergoing detention in legal custody after the conclusion of criminal proceedings if it is a period during which [F3 C is detained in a hospital or similar institution in Great Britain as a person suffering from mental disorder unless C satisfies either of the following conditions] —

(a) the claimant is detained or liable to be detained under section 45A of the Mental Health Act 1983 F4 (hospital and limitation directions) or section 59A of the Criminal Procedure (Scotland) Act 1995 F5 (hospital direction); or

(b) the claimant is detained or liable to be detained under section 47 of the Mental Health Act 1983 F6 (removal to hospital of persons serving sentences of imprisonment, etc.) F7 ...; or

(c) section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment for mental disorder).

[F8 (4) The first condition is that—

(a) C is being detained under section 45A or 47 of the Mental Health Act 1983 (power of higher courts to direct hospital admission; removal to hospital of persons serving sentences of imprisonment etc.); and

(b) in any case where there is in relation to C a release date within the meaning of section 50(3) of that Act, C is being detained on or before the day which the Secretary of State certifies to be that release date.]

[F8 (4A) The second condition is that C is being detained under—

(a) section 59A of the Criminal Procedure (Scotland) Act 1995 (hospital direction); or

(b) section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment of mental disorder).]

(5) For the purposes of this regulation—

(a) “court” means any court in the United Kingdom, the Channel Islands or the Isle of Man or in any place to which the Colonial Prisoners Removal Act 1884 F9 applies or any naval court-martial, army court-martial or air force court-martial within the meaning of the Courts-Martial (Appeals) Act 1968 F10 or the Courts-Martial Appeal Court;

(b) “hospital or similar institution” means any place (not being a prison, a young offender institution, a secure training centre, secure accommodation in a children's home[F11 , a place at which a secure accommodation service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 is being provided] or a remand centre, and not being at or in any such place) in which persons suffering from mental disorder are or may be received for care or treatment;

(c) “penalty” means a sentence of imprisonment or detention under section 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000 F12 [F13 or section 250[F14 , 252A] or 259 of the Sentencing Code], a detention and training order under [F15 section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 10 of the Sentencing Code], a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 F16 or an extended sentence under section 228 of that Act or, in Scotland, under section 205, 207 or 208 of the Criminal Procedure (Scotland) Act 1995;

(d) in relation to a person who is liable to be detained in Great Britain as a result of any order made under the Colonial Prisoners Removal Act 1884, references to a prison must be construed as including references to a prison within the meaning of that Act;

(e) criminal proceedings against any person must be deemed to be concluded upon that person being found insane in those proceedings so that the person cannot be tried or that person's trial cannot proceed.

(6) Where a claimant outside Great Britain is undergoing imprisonment or detention in legal custody and, in similar circumstances in Great Britain, the claimant would, by virtue of this regulation, not have been disqualified for receiving a contributory allowance, the claimant is not disqualified for receiving that allowance by reason only of the imprisonment or detention.

Textual Amendments

F1 Word in reg. 160(3) inserted (25.3.2010) by The Social Security (Persons Serving a Sentence of Imprisonment Detained in Hospital) Regulations 2010 (S.I. 2010/442), regs. 1, 5(3)(a)(i)

F2 Word in reg. 160(3) substituted (25.3.2010) by The Social Security (Persons Serving a Sentence of Imprisonment Detained in Hospital) Regulations 2010 (S.I. 2010/442), regs. 1, 5(3)(a)(ii)

F3 Words in reg. 160(3) substituted (25.3.2010) by The Social Security (Persons Serving a Sentence of Imprisonment Detained in Hospital) Regulations 2010 (S.I. 2010/442), regs. 1, 5(3)(a)(iii)

F4 1983 c. 20. Section 45A was inserted by the Crime (Sentences) Act 1997 (c. 43), section 46 and amended by the Criminal Justice Act 2003 (c. 44), Schedule 32, paragraphs 37 and 39 and Schedule 37, Part 7.

F5 1995 c. 46. Section 59A was inserted by the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp. 13), Schedule 4, paragraph 8(6).

F6 Section 47 was amended by the Crime (Sentences) Act 1997, section 49(3).

F7 Words in reg. 160(3)(b) omitted (27.10.2008) by virtue of The Employment and Support Allowance (Miscellaneous Amendments) Regulations 2008 (S.I. 2008/2428), regs. 1(2), 10

F8 Reg. 160(4)(4A) substituted for reg. 160(4) (25.3.2010) by The Social Security (Persons Serving a Sentence of Imprisonment Detained in Hospital) Regulations 2010 (S.I. 2010/442), regs. 1, 5(3)(b)

F9 1884 c. 31.

F10 1968 c. 20.

F11 Words in reg. 160(5)(b) inserted (2.4.2018) by The Social Security and Child Support (Regulation and Inspection of Social Care (Wales) Act 2016) (Consequential Provision) Regulations 2018 (S.I. 2018/228), regs. 1, 11(3)

F12 2000 c. 6. Section 90 was amended by the Criminal Justice and Court Services Act 2000 (c. 43), section 60(2) and (3).

F13 Words in reg. 160(5) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 366(a) (with Sch. 27); S.I. 2020/1236, reg. 2

F14 Word in reg. 160(5)(c) inserted (30.4.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(1)(i), Sch. 13 para. 30

F15 Words in reg. 160(5) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 366(b) (with Sch. 27); S.I. 2020/1236, reg. 2

F16 2003 c. 44.