[2024] UKUT 131 (AAC)

Mr Castle, for the Secretary of State, submitted that the FTT had erred in holding that ‘income’ only referred to legitimately obtained monies. There was, he argued, nothing to suggest that the ESA Regulations 2008 presupposed a lawful source for any ‘income’. The purpose of the means-test in the ESA regime was to ensure that only those persons whose incomes were below the relevant threshold received State support. In that context it would be absurd if a claimant’s reliance on the cash proceeds of crime in effect exempted them from the operation of the ESA means-test. Accordingly, just as the term ‘work’ carried no stipulation that it was confined to lawful work, so the meaning of ‘income’ was subject to no stipulation that it referred solely to moneys that had been legitimately obtained.

Mr Yetman, for the claimant, submitted that just as ‘work’ meant lawful work, so also ‘income’ necessarily referred only to legally acquired income. It was impermissible to submit that legislative silence as to the distinction meant that criminally acquired income was included under the ESA Regulations 2008. The purpose of ESA was to facilitate the reintegration of disabled workers into legal participation in the workplace. It was inconsistent with that policy objective to apply the ESA regime in such a way as to exclude a vulnerable claimant with disabilities who happened to have a criminal record.