The Employment and Support Allowance Regulations (Northern Ireland) 2008

Exceptions from disqualification for imprisonment

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 is not to be disqualified for receiving a contributory allowance, for any period during which the claimant is undergoing detention in legal custody after the conclusion of criminal proceedings if it is a period during which the claimant is liable to be detained in a hospital or similar institution in Northern Ireland as a person suffering from mental disorder unless the claimant is detained or liable to be detained under Article 53 of the Mental Health Order(1) (removal to hospital of persons serving sentences of imprisonment, etc.).

(4) Where—

(a) paragraph (3) applies in relation to a claimant; and

(b) a certificate given by or on behalf of the Secretary of State shows the earliest date on which that claimant would have been expected to be discharged from detention under the sentence or order if the claimant had not been transferred to a hospital or similar institution,

that paragraph is to be treated as not satisfied in relation to that claimant from the day following that date.

(5) In 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(2) applies or any naval court-martial, army court-martial or air force court-martial within the meaning of the Courts-Martial (Appeals) Act 1968(3) or the Courts-Martial Appeal Court;

(b) “hospital or similar institution” means any place (not being a prison, a young offenders centre, a juvenile justice centre or secure accommodation in a children’s home 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 Article 45(1) or (2) of the Criminal Justice (Children) (Northern Ireland) Order 1998(4);

(d) in relation to a person who is liable to be detained in Northern Ireland 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 Northern Ireland is undergoing imprisonment or detention in legal custody and, in similar circumstances in Northern Ireland, 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.

(1)

Article 53 was amended by paragraph 38 of Schedule 12 to the Justice (Northern Ireland) Act 2002 (c. 26)

(2)

1884 c. 31

(3)

1968 c. 20

(4)

S.I. 1998/1504 (N.I. 24); Article 45 was amended by paragraph 19 of Schedule 11 to the Justice (Northern Ireland) Act 2002 (c. 26)