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Chapter U6: ESA disqualification

Contents
U6001:Scope of this Chapter
U6005:Disqualification for misconduct
U6020:Treatment
U6025:Rules of behaviour
U6030:Absence
U6031:Period of disqualification
U6035:Exceptions
U6036:Person in hardship
U6050:Meaning of "AA"
Disqualification for imprisonment
U6060:Introduction
U6062:Treating a claimant as not having limited capability for work
U6063:Exceptions to the disqualification provisions
U6064:No penalty imposed
U6065:Meaning of court
U6066:Meaning of penalty
U6072:Penalty cancelled
U6075:Imprisonment for non-payment of fines
U6075:Mentally disordered persons detained in legal custody
U6090:Technical lifers - England and Wales only
U6094:Imprisonment or detention in legal custody abroad
U6095:Suspension of payment during imprisonment

Chapter U6: ESA disqualification

U6001 Scope of this Chapter

This Chapter gives guidance on disqualification for
1. misconduct
2. imprisonment.

[U6002-U6004]

U6005 Disqualification for misconduct U6020 U6021 U6026 U6027 U6035

Claimants entitled to ESA are disqualified for receiving it for a period decided by the
DM up to a maximum of six weeks if they (1)
1. have LCW through their own misconduct (except in a case where LCW is due
to a sexually transmitted disease) or
2. fail without good cause to attend for or submit to medical or other treatment
(excluding vaccination, inoculation or surgery which the DM considers is
major) recommended by a doctor with whom, or a hospital or similar institution
with which, the claimant is undergoing medical treatment, which would be
likely to remove the limitation on the claimant's capability for work or
3. fail without good cause to refrain from behaviour calculated to retard the
claimant's recovery to health or
4. are absent without good cause from their place of residence without informing
the Secretary of State where they may be found.
Note: See U6035 for exceptions.

1 ESA Regs 13, reg 93(1) & (2)

U6006

Guidance on misconduct may be relevant if the misconduct being considered would
have resulted in dismissal from employment and a sanction for JSA. Conduct which
is blameworthy, reprehensible, wrong or wilful should be distinguished from
involuntary behaviour due to other factors (1).

1 R(S) 2/64

U6007

Alcoholism is one example of behaviour which may be misconduct if a claimant has
LCW as a result of excessive drinking on one occasion. But the mental and physical
effects of alcoholism can be a condition requiring long spells of treatment, including
psychiatric help.

U6008

If a claimant has LCW as a result of an accident which occurred while intoxicated
but which could have happened if the claimant was sober, LCW would not be due to
misconduct.

U6009

Drug addiction is similar to alcoholism in that the uncontrolled use of addictive drugs
leads to a progressive deterioration in physical or mental condition which can be
incapacitating.

U6010

Disqualification should be applied to the exceptional cases where there is clear
evidence that temporary LCW or the addiction resulted from a deliberate decision by
a healthy person to experiment with drug taking.

U6011

When deciding whether to disqualify for receiving ESA the DM should judge how far
the claimant's actions have been deliberate and unreasonable rather than
thoughtless.

U6012

Someone who is injured or contracts a disease while committing an illegal act for
which they are convicted by a court of law, is subject to being treated as not having
LCW.

[U6013-U6019]

U6020 Treatment

Treatment as at U6005 2. has to be in relation to the cause of LCW (1). Medical
treatment means medical, surgical or rehabilitative treatment (including any course
or diet or other regimen)2.

1 R(S) 3/57; 2 ESA Regs 13, reg 2

U6021

In
U6005 2. doctor means
1. a registered medical practitioner or
2. outside the UK, a medical practitioner recognised as such in the country
where they practice (1).

1 ESA Regs 13, reg 93(4)

U6022

The claimant has to prove
1. good cause and
2. that a refusal of treatment was reasonable in the circumstances.

U6023

If the objection to treatment is on religious grounds, evidence of a firm personal
belief is needed to support good cause (1).

1 R(S) 9/51

[U6024]

U6025 Rules of behaviour

One example of behaviour considered under both these rules was a person with
influenzal bronchitis, who drove 60 miles from home to business and was not well
enough to return for several days. It was decided that the person had
1. undertaken a journey calculated to delay recovery and
2. also been absent from home without leaving word.
In view of certain circumstances the period of treating as capable of work was limited
to two weeks (1).

1 R(S) 21/52

U6026

In
U6005 3. the word "calculated" does not mean that the claimant deliberately
intends to delay recovery. The question is whether the delayed recovery is likely to
result from the behaviour (1).

1 R(I) 26/51

U6027

Good cause for the behaviour was not proved by a person who had dermatitis of the
hands and was whitewashing the kitchen, because the doctor had advised against
getting wet (1). Ignorance of the rules of behaviour is not good cause (2).
1 R(I) 26/51; 2 R(S) 21/72

[U6028-U6029]

Absence

U6030

-

U6005

4. does not apply unless the claimant has somewhere to live. Once the
relevant facts are established the claimant has to prove good cause such as a
genuine difficulty in leaving a message (1).
1 R(S) 7/83, R(S) 6/55

U6031 Period of disqualification

The length of the period of disqualification can be from one day to six weeks. The
length of the disqualification depends on the circumstances of the case. The DM has
to give reasons for the choice of period (1).

1 R(U) 8/74, R(S) 1/87, R(U) 4/87

U6032

For misconduct the period of disqualification can begin on
1. the day following the date of the act of misconduct or
2. from the date of the decision if benefit has continued in payment (1).
If the misconduct is repeated, a fresh period of disqualification may be imposed.

1 R(U) 12/59, R(S) 4/61

U6033

The period of disqualification for failure to observe the rules of behaviour depends
upon the number of times, and the period over which the failure has occurred. Any
extenuating circumstances can be taken into account even though good cause has
not been proved (1).

1 R(S) 21/52

U6034

If, during the period of disqualification, a claimant
1. submits a closed doctor's statement and
2. then makes a further claim
any disqualification continues for the outstanding part of the original period, unless
the determination has been set aside on supersession or appeal.

U6035 Exceptions U6005

Disqualification as in U6005 does not apply if the claimant is
1. a person in hardship (1) or
2. disqualified for receiving ESA under certain legislation (2) (loss of benefit
provisions). Note: See ADM Chapter B2 for guidance on loss of benefit. 1 ESA Regs 13, reg 93(3)(a); 2 reg 93(3)(b); SS Fraud Act 01, s 6B & 7

U6036 Person in hardship U6037 U6038 U6040

A claimant is a "person in hardship" if they
1. have informed the DM of the circumstances on which they rely to establish
that fact and
2. fall within U6037 - U6040 (1).

1 ESA Regs 13, reg 94(1)

U6037 U6036

A claimant is a person in hardship as in U6036 if (1)
1. the claimant is pregnant or
2. a member of the claimant's family is pregnant or
3. the claimant is a single person aged less than 18 or
4. the claimant is a member of a couple and both members are aged less than
18.

1 ESA Regs 13, reg 94(2)

U6038 U6039

A claimant is a person in hardship as in U6036 if (1)
1. the claimant or their partner has been awarded
1.1
"AA" or
1.2 DLA care component (higher or middle rate)2 or
1.3 PIP daily living component (standard or enhanced rate)3 or
1.4 AFIP or
2. the claimant or their partner has claimed
1.1 "AA" or
1.2 DLA care component (higher or middle rate) or
1.3 PIP daily living component (standard or enhanced rate) or
1.4
AFIP
and the claim has not yet been determined (but see U6039) or
3. the claimant or their partner devotes what the DM considers is a considerable
portion of each week caring for another person who has been awarded
3.1
"AA" or
3.2 DLA care component (higher or middle rate) or
3.3 PIP daily living component (standard or enhanced rate) or
3.4 AFIP or
4. the claimant or their partner devotes what the DM considers is a considerable
portion of each week caring for another person who has claimed
4.1
"AA" or
4.2 DLA care component (higher or middle rate) or
4.3 PIP daily living component (standard or enhanced rate) or
4.4
AFIP
and the claim has not been determined ( but see U6039) or
5. the claimant or their partner has reached the qualifying age for SPC (4) (see
DMG Chapter 77).
Note:
For a definition of "AA" see U6050.

1 ESA Regs 13, reg 94(3); 2 SS CB Act 92, s 72(3); 3 WR Act 12, s 78; 4 SPC Act 02, s 1(6)

U6039 U6038 U6038

Where
U6038 2. or 4. applies, a claimant can only be a "person in hardship" for a
maximum of 26 weeks from the date of the claim (1).

1 ESA Regs 13, reg 94(4)

U6040 U6036 U6041

A claimant is a person in hardship as in U6036 if the DM, having regard to all the
circumstances and in particular those at U6041, is satisfied that the claimant or a
member of the claimant's family will suffer hardship unless ESA is paid (1).

1 ESA Regs 13, reg 94(5)

U6041 U6040

The circumstances referred to in U6040 are
1. the resources which are likely to be available to the claimant and their family
and the length of time for which they might be available and
2. whether there is a substantial risk that essential items such as food, clothing
and heating will
2.1 cease to be available to the claimant or a member of the claimant's
family or
2.2
only be available at considerably reduced levels and
the length of time that this might be so (1).

1 ESA Regs 13, reg 94(6)

U6041
The amount of ESA payable in hardship cases is reduced by 20% of the claimant's
applicable amount (1).
1 ESA Regs 13, reg 63(2)

[U6042-U6049]

U6050 Meaning of "AA" U6038

"AA"
means (1)
1. AA (2) or
2. an increase of disablement pension for constant attendance or exceptionally
severe disablement (3) or
3. any
3.1 payments for attendance under the Civilians Personal Injury Scheme (4)
or
3.2 similar payment to 3.1 or
4. any payment for attendance which is part of a war disablement pension (5).
Note: Payments in 3. are made to people who receive a disability pension because
of war injuries suffered as civilians or civil defence volunteers.
1 ESA Regs 13, reg 94(7); 2 SS CB Act 92, s 64; 3 s 104 & 105;
4 Personal Injuries (Civilians) Scheme 83, Art 14-16 & 43-44; Income Tax (Earnings and Pensions) Act 03

[U6051-U6059]

Disqualification for imprisonment

U6060 Introduction

A claimant is disqualified for receiving ESA for any period during which they are
undergoing imprisonment or detention in legal custody
1. in connection with a charge brought or intended to be brought in criminal
proceedings and
2. pursuant to any sentence or
3. pursuant to any order of detention.

1 WR Act 07, s 18(4)(b)

U6061

Payment of ESA is suspended from the first day of imprisonment or detention in
legal custody. If a decision is subsequently made to disqualify the claimant for
receiving ESA, that decision will apply from the first day of imprisonment or detention
in legal custody.

U6062 Treating a claimant as not having limited capability for work

The claimant is to be treated as not having LCW if they are disqualified for receiving
ESA during a period of imprisonment or detention in legal custody if that
disqualification is for more than 6 weeks (1) (see ADM Chapter U2).
1 ESA Regs 13, reg 95

U6063 Exceptions to the disqualification provisions U6095

There are exceptions to the provisions disqualifying ESA on imprisonment or
detention in legal custody (1). These are where
1. no penalty is imposed (U6064) or
2. the person is suffering from mental disorder (U6075 et seq).
1 ESA Regs 13, reg 96(2) & (3)

U6064 No penalty imposed

There is no disqualification for receiving ESA for imprisonment or detention in legal
custody unless at the end of criminal proceedings the court imposes
1. a penalty
or
2. a penalty for fine default (1).
1 ESA Regs 13, reg 96(2)

U6065 Meaning of court

Court
means (1) any
1. court in
1.1 UK
1.2 Channel Islands
1.3 Isle of Man
1.4 any place to which certain legislation applies (2) or
2. naval, army or air force court-martial within the meaning of certain legislation (3)
or
3. Courts-Martial Appeal Court.
1 ESA Regs 13, reg 96(6)(a); 2 Colonial Prisoners Removal Act 1884; 3 Courts-Martial (Appeals) Act 1968

U6066 Meaning of penalty

Penalty (1) is
1. a sentence of imprisonment
2. detention in a young offenders institution
3. an order for detention in a young offenders institution
4. detention in GB as a result of any order made under certain legislation (2).
1 ESA Regs 13, reg 96(7)(c); Powers of Criminal Courts (Sentencing) Act 00, s 90, 91 & 100;
Criminal Justice Act 03, s 226 & 228; Criminal Procedure (Scotland) Act 95, s 205, 207 & 208;
2 ESA Regs 13, reg 160 (5)(d); Colonial Prisoners Removal Act 1884

[U6067-U6069]

U6070 The term penalty includes a suspended sentence of imprisonment at the end of
criminal proceedings, even if it has not taken effect (1).
Note:
A suspended sentence does not disqualify a claimant who is not in prison or
detained in legal custody.

1 R(S) 1/71

U6071

The following are not penalties and so no disqualification is imposed for the period
before the end of criminal proceedings during which the person is remanded in
custody when
1. a fine is imposed (see U6074)
2. the charge is withdrawn
3. there is a conditional or absolute discharge or acquittal
4. the claimant is detained in hospital by court order following conviction
5. an order putting a person under guardianship is made
6. a Community Rehabilitation order is made.
Note:
This list is not exhaustive.

U6072 Penalty cancelled

Where a penalty has been imposed, a Higher Court can later
1. quash the conviction or
2. substitute another penalty with an order which is not a penalty.
The effect is as though no penalty had been imposed.

U6073

Disqualification will therefore be removed for any relevant period of imprisonment or
detention in legal custody. See ADM Chapter A4 for further guidance on
supersession for a relevant change of circumstances and when the decision takes
effect.

U6074 Imprisonment for non-payment of fines U6071

Imprisonment for non-payment of a fine can be the result of civil proceedings. The
DM should consider the nature of the original offence if a person is imprisoned for
non-payment of a fine. If the original offence was a criminal action, the DM should
1. regard the imprisonment as a criminal offence and
2. disqualify from benefit (2).
1 ESA Regs 13, reg 96(2)(b)

U6075 Mentally disordered persons detained in legal custody U6081

Subject to the exceptions in U6081, disqualification does not apply (1) for any period
during which a person is detained in legal custody at the end of criminal
proceedings, if it is a period during which that person is liable to be detained in a
hospital or similar institution as a person suffering from a mental disorder.

1 ESA Regs 13, reg 96(3)

U6076

Hospital or similar institution means (1) any place in which people suffering from
mental disorder may receive care or treatment but not at or in a
1. prison
2. young offenders institution
3. secure training centre
4. secure accommodation in a children's home
5. remand
centre.
1 ESA Regs 13, reg 96(6)(b)

[U6077-U6079]

U6080

If a person is found to be insane during criminal proceedings so that they cannot be
tried or their trial cannot proceed, those proceedings will be treated as completed (1).
There will be no disqualification.

1 ESA Regs, reg 96(5)(e)

U6081 U6075 U6082 U6082 U6096

The exceptions referred to in U6075 are where the person is (1)
1. detained (or liable to be detained) under specific legislation (2) which allows a
court, which has imposed a term of imprisonment, to direct that the offender
be detained in a hospital or similar institution instead of a prison where that
offender suffers from a psychopathic disorder or
2. serving a sentence of imprisonment and is then detained in a mental hospital
under specific legislation (3) which allows the Secretary of State for Justice or
Scottish Ministers to order that an offender, suffering from mental disorder, be
transferred from prison to detention in a mental hospital.
1 ESA Regs 13, reg 96(4)(a) & (5); 2 MH Act 83, s 45A; Criminal Procedure (Scotland) Act 95, s 59A

3 MH Act 83, s 47; M H (C & T) (Scot) Act 03, s 136

U6082 U6085

Where there is a hospital direction as in U6081 1. or where the person is transferred
from prison to a mental hospital as in U6081 2. the person will be disqualified for
receiving ESA (1).

1 ESA Regs 13, reg 96(4)(a) & (5)

U6083

A person who is transferred to a mental hospital as in U6084 may recover and be
sent back to prison. The normal rules disqualifying prisoners from receiving benefits
will apply.

U6084 U6083

Where a person has been disqualified and is transferred to
1. a hospital
or
2. similar institution
the disqualification will apply up to the date when the person is expected to be
released, had the transfer not been made (1).

1 ESA Regs 13, reg 96(4)(b); MH Act 83, s 50(3)

U6085

Where a prisoner is transferred to a mental hospital and detained under certain
legislation (1) the disqualification as in U6082 will continue until the date when they
would have been released.
1 MH Act 83, s 45A; s 47; Criminal Procedures (Scotland) Act 1995, s 59A;

MH (C & T) (Scot) Act 03, s 136

U6086 U6088

In England and Wales, where applicable, the earliest date on which the prisoner
would have been expected to be discharged from prison will be notified in a
certificate. Where the prisoner was sentenced to life imprisonment the certificate
issued is not endorsed with a release date.

U6087 U6088

In Scotland certificates are not issued on any case because the terms of the
prisoner's transfer to mental hospital cease at the point that their sentence would
have ended (1). Any further detention would require a fresh order which would not be
made under the relevant legislation (2).

1 CSS/239/07; MH (C & T) (Scot) Act 03, s 136; s 217; 2 s 136

U6088

In U6086 - U6087 it is enough to know under what legislation the prisoner is being
held in mental hospital. They will be disqualified if it is under the relevant legislation
and there is no certificate.

[U6089]

U6090 Technical Lifers - England and Wales only U6093

A High Court judgment (1) dealt with the issue of whether there was unequal treatment
under Human Rights legislation between those persons
1. sent to hospital for treatment (2) without having been given a prison sentence
and who are eligible for benefit and
2. those given a prison sentence and are either -
2.1 sent directly to hospital for treatment (3)
2.2 transferred to hospital from prison (4) who
are
not eligible for benefit.
1 Regina (EM and others) v Secretary of State for Work and Pensions [2009] EWHC 454 (Admin);

2 MH Act 83, s 37 & 41; s 45A; 4 s 47

U6091

The Court found that the difference in treatment of those persons termed `technical
lifers' could not be justified.

U6092

A `technical lifer' is an administrative classification. It involves the Secretary of State
for Justice accepting that the criminal court that heard the individual's case would
have given an order for hospital treatment rather than impose a sentence of
imprisonment, if, for example, a suitable bed had been available.

U6093

The effect of this is that a person given the status of a `technical lifer' should be
treated, for the purposes of benefit entitlement, as though they had been sent to
hospital for treatment without having been given a prison sentence (see U6090 1.
above).
Note: The practice of awarding `technical lifer' status to eligible prisoners was
abandoned in 2005.

U6094 Imprisonment or detention in legal custody abroad U6095

When a person is imprisoned or detained in legal custody abroad (1), the same benefit
rules apply for
1. disqualification
2. exception from disqualification.
Note:
UK benefit rules apply only for imprisonment for a criminal offence. The DM
should decide whether the offence for which the claimant is convicted in the other
country would be a criminal offence in the UK. A person detained abroad without trial
is not disqualified for receiving benefit, but see U6095 if they are detained abroad
pending trial.
1 R(S) 2/81; ESA Regs 13, reg 96(7)

U6095 Suspension of payment during imprisonment U6094

The payment of ESA to those claimants who are not disqualified for receiving it
whilst undergoing imprisonment or detention in legal custody as a consequence of U6063or U6094 is suspended (1). The suspension covers the period of imprisonment
or detention in legal custody and any benefit payable during that period even if it is
not in respect of that period.

1 ESA Regs 13, reg 97(1)

U6096

ESA is not suspended while the claimant is detained in a hospital or similar
institution as a person suffering a mental illness unless U6081 applies (1) .

1 ESA Regs 13, reg 97(2)

U6097

If ESA is suspended for any period, the period of suspension is not to be taken into
account in calculating any period in respect of the extinguishment of the right to
sums payable which are not obtained within the prescribed time (1) .

1 ESA Regs 13, reg 97(3); UC, PIP, JSA & ESA (C&P) Regs, reg 55

U6098

Where a person who is held in custody on remand is given a prison sentence which
is less than the time already spent in custody (and is immediately released) they are
disqualified for the entirety of the time spent in custody. No benefit is refunded to the
value of the extra time spent in prison (1) .

Example

Kenneth is detained in legal custody on 1.9.14. The DM suspends payment of his
ESA. On 1.12.14 the DM is notified that Kenneth was given a custodial sentence.
The DM decides that Kenneth should be disqualified for receiving ESA from 1.9.14.
1 WR Act 07, s 18(4)(b)

[U6099-U6999]