[2023] UKUT 124 (AAC)

The underlying facts are not in dispute, although there is some uncertainty about some details. The claimant was awarded employment and support allowance in 2014, having previously been entitled to incapacity benefit. In 2017, he emigrated to Romania, where he continued to be entitled to both contributory employment and support allowance and personal independence payment. It appears that he was arrested there on criminal charges and was brought back to England for trial. On 13 February 2020, he was sentenced to a total of two years’ imprisonment. He was released on 21 December 2020. He had been in custody from 3 January 2020 until he was sentenced. The First-tier Tribunal pointed out that his release date appears to have been calculated on the basis that he had previously been remanded in custody for an additional 12 days, but, if that is so, it is possible that he was released on bail between the two periods and he seems to have been in hospital at some stage, so there may have been a good reason for ignoring the earlier period, whether it was in Romania or the United Kingdom. In any event, the Secretary of State has proceeded on the basis that the only relevant period of imprisonment was from 3 January 2020 until 21 December 2020, and I am content to do so as well.

The Secretary of State was notified that the claimant had been remanded or committed in custody and, on 15 January 2020, payment of contributory employment and support allowance was suspended (although the Secretary of State erroneously refers to “the claim” having been suspended). No further action appears to have been taken by the Secretary of State until the claimant informed her of his release. On 18 January 2021, the Secretary of State decided that the claimant was not entitled to employment and support allowance from 3 January 2020 and she stated that the claimant “must make a new claim for benefit”, apparently on the basis that “entitlement to credits will also be lost”. On the same day, the claimant wrote a letter (misdated 18 February 2020) that was taken by the Secretary of State as an application for a revision (“mandatory reconsideration”) of the decision of 18 January 2021. In that letter, the claimant did not suggest that he had been entitled to receive employment and support allowance while he had been in prison. However, he did ask for his payments to be reinstated so that he could return to Romania. The Secretary of State refused to revise his decision, stating that the claimant’s “claim was closed correctly and you are required to make a new claim for benefit”.

The claimant had in fact already submitted what purported to be a new claim for employment and support allowance on 31 December 2020, before the Secretary of State had made the decision on 18 January 2021. It had been treated as a claim for “new style” employment and support allowance and the Secretary of State appears to have taken the view that the claimant would not satisfy the contribution conditions for an award of the allowance but that the existing “credits” award could be left open (see page 22). However, no formal decision was made on the new claim at that time because no decision had been made that had the effect of terminating the previous award of employment and support allowance. The decision of 18 January 2021 having been made but challenged, the making of a decision on the new claim was further deferred to await the conclusion of the challenges, and it may still be awaiting the decision on this appeal. Meanwhile, the claimant was awarded universal credit from 18 January 2021.

The claimant appealed against the employment and support allowance decision of 18 January 2021 only on the ground that payments of contributory employment and support allowance should have been reinstated when he was released from prison so that he could exercise his “right” to return to his home in Romania. However, the First-tier Tribunal was not satisfied that the claimant had ceased to be entitled to contributory employment and support allowance while in prison and requested a further submission from the Secretary of State addressing this issue. It was not persuaded by that submission and, on 29 September 2021, decided that the claimant had not been disqualified for receiving contributory employment and support allowance while in prison and that he had therefore remained entitled to the allowance, and to receive payments of it, throughout his imprisonment. It also said in its statement of reasons that, had it decided that the claimant had been disqualified for receiving payments, it would nonetheless have held that he retained an underlying entitlement to contributory employment and support allowance during the first six weeks of his imprisonment. However, it did not address the claimant’s original ground of appeal, presumably because, as it had decided that the claimant had remained entitled to receive payments of that allowance while in prison, no question of reinstatement arose. On 8 March 2022, the First-tier Tribunal gave the Secretary of State permission to appeal, although the parties were not notified until 12 April 2022.

In a helpful appeal submission drafted by Jack Anderson of counsel, the Secretary of State argues that the claimant was not only disqualified from receiving employment and support allowance throughout the period of his imprisonment but he was also not entitled to that allowance throughout that period.

The claimant has not responded to the Secretary of State’s appeal. He did contact the Upper Tribunal by telephone on 23 January 2023 to ask what he should do and he was told that a direction would be issued to him explaining how the case would proceed. He asked for it to be sent to him by email and said that he would provide an email address, which he either did or had done already by sending two emails on the same day, one with proof of his identity and the other again asking for advice and stating that he was disabled and had a cognitive impairment. Subsequently, a direction was issued, extending time for making a response and suggesting to the claimant that he seek advice from a citizens’ advice bureau. Unfortunately, that direction was issued only by post and not also by email, despite the claimant’s request, but I have no reason to suppose that he did not receive it. The lack of response is not surprising, since the appeal turns entirely on technical points of law upon which the claimant may have thought that he could not usefully comment. Accordingly, I decide this appeal without giving the claimant a further opportunity to submit a response. If, contrary to my expectation, he suffers any injustice by my doing so, he may apply for my decision to be set aside.