People entering and leaving prison tend to encounter a specific set of difficulties within the universal credit (UC) system. These include confusion about whether they are entitled to UC, doubts about whether they have permanently lost entitlement to legacy benefits and the consequences of detention for those claiming benefits because they have limited capability for work. Barbara Donegan explains.
Who can get universal credit in prison?
UC is only payable to someone in prison where:
- that person was entitled to UC immediately before becoming a prisoner; and
- the calculation of her/his UC award included the housing costs element; and
- s/he is not expected to spend more than six months in custody.1
Only the housing costs element is payable.2 For as long as it appears that a single claimant is going to spend six months or less in custody, therefore, s/he may be able to get a UC award including the housing costs element only. Where someone in prison is part of a couple, her/his partner can make a new claim for UC.3 Joint income and capital are taken into account in working how much UC is payable, though UC is paid at the rate for a single person to the partner of the person in prison. A housing costs element can also be included.
Universal credit on release: the only option?
The loss of legacy benefits and a consequent sharp drop in income can be one of the unexpected consequences of a period in detention. This is of particular concern to those with health problems or disabilities and their families.
Income-related employment and support allowance (ESA) remains payable to people on remand only (those awaiting trial or sentence), and for eligible housing costs only (ground rent and service charges for owner-occupiers)4 Entitlement is for a maximum of 52 weeks and stops in any case when a custodial sentence is imposed.5 Income-related ESA is lost on entering the prison system for other claimants, therefore, but does this mean it is lost permanently, even when only a short period is spent in custody? Not necessarily.
The SDP gateway
The severe disability premium (SDP) gateway prevents a new claim for UC from being made by someone who is either entitled to an award of a legacy benefit which included the SDP or who has lost such entitlement within the past month but has continued to meet the qualifying criteria for the SDP in the month since the award ended.6 There will be cases where someone leaving prison is barred by the gateway from migration onto UC and will be able to retain or reclaim legacy benefits.
Examples include the situation where someone is detained for a short period and retains entitlement to a housing benefit (HB) award which includes the SDP, or someone who has been placed in temporary accommodation by the local authority following release and has claimed HB for housing costs. If this HB award now includes the SDP because her/his personal independence payment (PIP) has resumed upon release, s/he may also be able to reclaim another legacy benefit such as income-related ESA.
In some cases, however, claiming income-related ESA would involve withdrawing a UC claim. There are, as always, risks associated with surrendering one subsistence benefit with no guarantee that a legacy benefit will be reinstated promptly – if at all – to take its place.7
Universal credit and limited capability for work
Since periods of limited capability for work (LCW) do not exist for UC, there can be no linking rules that allow a period of LCW on ESA to be linked with one on UC. On leaving prison and claiming UC, therefore, a claimant may have to start submitting fit notes so that a new work capability assessment can be arranged. In some cases, a person who was entitled to contributory ESA before s/he was detained may be able to have an element for LCW included in an award of UC from the beginning of her/his claim. This includes people who can be treated as having LCW for UC because they have already been assessed as having LCW for contributory ESA.8 This rule can assist remand prisoners who do not receive a custodial sentence upon conviction, as well as people whose convictions were quashed, since their contributory ESA will be reinstated upon release.
Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.
- 1. Reg 19(2) Universal Credit Regulations 2013, No.376
- 2. Reg 19(3) Universal Credit Regulations 2013, No.376
- 3. Regs 19(1) and 3(3) Universal Credit Regulations 2013, No.376
- 4. Reg 69 Employment and Support Allowance Regulations 2008, No.794
- 5. Sch 5 para 3 Employment and Support Allowance Regulations 2008, No.794
- 6. Reg 4A Universal Credit (Transitional Provisions) Regulations 2014, No.1230, inserted by reg 2(3) Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019, No.10. See also ‘The SDP gateway’, Welfare Rights Bulletin 269.
- 7. See ‘The SDP gateway’, Welfare Rights Bulletin 269
- 8. Reg 19(2) Universal Credit (Transitional Provisions) Regulations 2014, No.1230 for ‘old-style’ awards; Reg 39(1)(a) Universal Credit Regulations 2013, No.376 for ‘new-style’ awards