Universal Credit and prisoners

Laura Docherty explores some common scenarios regarding Universal Credit and prisoners

Introduction

If a client is charged with an offence, there are many practical considerations to take into account. If that client has an award of Universal Credit (UC), there may be implications that need to be addressed. Even a short term of imprisonment can be chaotic to a client’s benefit entitlement so it’s crucial for advisers to know the rules and how they should be applied.

A client generally won’t be entitled to an award of UC whilst they are a prisoner¹. Whilst that rule seems simple enough, it throws up a number of potential issues for UC claimants.

What is a prisoner?

A prisoner is someone who is a person who is detained in custody²:

• pending trial, or sentence upon conviction (‘remanded’) or
• under a sentence imposed by a court; or
• is not currently detained in custody but is on temporary release in accordance with the provisions of the Prison Act 1952 or the Prisons (Scotland) Act 1989

‘Temporary release’ is where a prisoner is able to leave custody for short periods, usually towards the end of their sentence. This is in preparation for their release and resettlement in the community. This might be referred to as ‘Release on Temporary Licence’ or ROTL.

ROTL is distinct from a prisoner being released ‘on license’. Being released on license means that the person is no longer in custody but they have to follow certain conditions when in the community³. If these conditions are breached, they may be ‘recalled’ to prison⁴. If a prisoner is released on licence they no longer meet the definition of a prisoner as they’re no longer detained in custody. However, if they are recalled then they do meet the definition of a prisoner and the usual exclusions to entitlement to UC apply.

Detention under the Mental Health Act

If the person is detained in a secure hospital unit under section 37 of the Mental Health Act (a ‘hospital order’) they do not meet the definition of a prisoner and may be entitled to UC. This includes if the hospital order includes ‘section 41 restrictions⁵.

If the person is detained in hospital under section 45A of the Mental Health Act 1983 (a ‘hospital direction’) they do meet the definition of a prisoner⁶. This is a ‘hybrid’ order where a person sentenced to imprisonment, also has a ‘mental disorder’ that can be treated in a hospital. A person detained under this provision can become entitled to UC once the sentence imposed by the court for the offence(s) ends (the ‘tariff date’).

If a person is detained in hospital under section 47 of the Mental Health Act 1983 (a ‘transfer direction’) they do meet the definition of a prisoner⁷. A transfer direction is used to move a sentenced prisoner from prison to a hospital for treatment of a mental disorder.

Example: Sophia

Sophia is convicted for the offence of fraud. She also has a diagnosis of schizophrenia which is treatable in a hospital. She is given a sentence of 12 months and a section 45A hospital direction . She was transferred to hospital on 1st April 2025 — the first day of her sentence — and remains there for 18 months. Her tariff date is 1 April 2026. The day after her sentence ends she is able to claim UC even though she is still detained in hospital.

What is the impact on Universal Credit entitlement?

My client is a prisoner, but she has a partner and they claim UC jointly. What happens to the UC award?

When one partner is imprisoned, there are two scenarios:

If the sentence is expected to be less than 6 months

For the purposes of UC they are still considered a couple, but they are not entitled as a couple as the claimant who is imprisoned is an ‘ineligible partner’⁸ who is temporarily absent⁹. This means the imprisoned partner remains part of the benefit award. This means that:

• the single person’s standard allowance is included in the maximum UC rather than the couples’ rate
• the ineligible partner is still included in the calculation of bedrooms needed to calculate the housing costs element. For example, if the couple usually can’t share a bedroom due to disability, 2 bedrooms will be considered to calculate the housing costs element
• the imprisoned partner’s income and capital will be taken into account when calculating the UC award.

If the sentence is expected to be more than 6 months

For the purpose of UC they are no longer considered a couple¹⁰. The partner who is not in prison will have a single award and the imprisoned partner will no longer be part of the benefit unit. If the imprisoned partner has income or capital it will not be taken into account when calculating the UC award.

Example: Piper and Alex

Piper is convicted of a minor drug trafficking offence. She receives a custodial sentence of 3 months. Piper has £10k in capital (which is not subject to a Proceeds of Crime Order). Piper and Alex claim UC jointly. Because Piper has received a custodial sentence she is now an ‘ineligible partner’. The UC claim is treated as single, but because Piper’s sentence is expected to be for less than 6 months tariff income of £69.60 is taken into account on the UC award.

My client has housing costs, will they be paid if they’re a prisoner?

This is the exception to the general rule that you cannot be entitled to UC if you are a prisoner. A claimant is entitled to UC whilst being a prisoner if the housing costs element is included in their maximum amount¹¹. Certain conditions must be met:

• the claimant’s custodial term is expected to last less than 6 months
• they were entitled to UC immediately before becoming a prisoner. This means that they received UC for at least 1 assessment period before meeting the definition of a prisoner¹²

If the client meets these conditions only the housing costs element is included in the maximum amount, no other elements.

Because of sentencing guidelines, many people will be sentenced to terms that exceed 6 months, but will not actually serve the full length of their sentence. For example, the court can order a fixed length sentence (a ‘determinate sentence’); which is the maximum time the person could spend in custody. However, they won’t necessarily spend all of their sentence in prison. For most determinate sentences, the person could be released after serving 40% of the sentence¹³. This could be on home detention curfew (‘electronic tagging’). This could mean that a claimant who has a sentence of more than 6 months could still retain entitlement to UC. However, time spent on remand is taken into account when working out if the claimant has been a prisoner for more, or less than 6 months.

Example: Poussey

Poussey was convicted of the offence of possession of cannabis. She has a UC award which includes the housing costs element. She spent 4 months on remand and was sentenced to an 8 month custodial sentence. It is expected that she will only serve 40% of the sentence and then be released on home detention curfew. This means that she will serve about 3.2 months of her sentence which is well under 6 months. However, the time she spent on remand also counts towards calculating the 6 months. Adding in the time on remand, her sentence is expected to be 7.2 months. Her UC award cannot continue. Her entitlement to UC will end in the assessment period where it was clear that her custodial sentence would exceed 6 months which is the day of her sentencing.

If a claimant is remanded in custody, UC with the housing costs element only can continue for up to 6 months. This is because the provision which prevents entitlement to UC states that they must not have ‘been sentenced to a term in custody that is expected to extend beyond that 6 months’¹⁴. Whilst on remand the claimant has not been sentenced at all so the UC will continue until the assessment period in which the claimant has been on remand for 6 months.

My client has an award of UC and is in temporary accommodation, will their Housing Benefit (HB) continue?

Prisoners can continue to qualify for HB for a limited period in certain circumstances. If the the claimant is remanded in custody HB can continue for up to 52 weeks as long as¹⁵:

The property hasn’t been sub-let and

• the claimant intends to return to the property as their home and
• is unlikely to be away for more than 52 weeks or
• in exceptional circumstances is unlikely to be away ‘substantially longer than 52 weeks’

If a claimant receives a custodial sentence HB can continue for 13 weeks provided they’re unlikely to be away from home for longer than this. The 13 weeks starts from the date the claimant was first remanded.

In the same way as UC, if the claimant has received a sentence of more than 13 weeks then HB may still continue. For example, if it is expected that they’ll be released within 13 weeks HB may continue even if the sentence is for a period longer than 13 weeks.

My client has an award of UC for a single person and no housing costs. If they become a prisoner when does UC stop?

As a general rule, if the claimant is a prisoner on the last day of the assessment period, UC will terminate from the first day of that assessment period. This is because the effective date of supersession for changes that occur mid assessment period takes effect from the first day of the assessment period in which the change takes place¹⁶.

Example: Galina

Galina is remanded for 7 days; from 27 October to 2nd November. Her assessment period runs from the 3rd of the month to the 2nd of the following month. She is still remanded on the last day of her assessment period. This means she is treated as being a prisoner for the whole of the assessment period and is not entitled to UC.

Example: Dayanara

Dayanara is remanded for 7 days; from 3 October to 10 October. Her assessment period runs from the 27th of the month, to the 26th of the following month. Dayanara is not remanded on the last day of the assessment period. She is not treated as a prisoner for any of the assessment period. Her entitlement to UC is undisturbed.

My client had a determination of LCWRA for UC, will this be included on a new UC claim?

The DWP says that determinations of LCW and LCWRA don’t carry over to subsequent UC awards except in very limited circumstances that don’t apply here. However, it’s arguable that the LCWRA determination should carry over to a new UC award. This is because unlike Employment and Support Allowance there’s no provision that allows a prisoner to be treated as fit for work, or removes the determination of LCW, or LCWRA.

Looking at the argument that the LCW or LCWRA should carry over, regulation 39 of the Universal Credit Regulations 2013 sets out when someone has a determination of LCW.

39. — (1) A claimant has limited capability for work if —

(a) it has been determined that the claimant has limited capability for work on the basis of an assessment under this Part or under Part 4 of the ESA Regulations; or

(b) the claimant is to be treated as having limited capability for work (see paragraph (6)).

A claimant is automatically treated as having LCW or LCWRA if they’ve already been assessed, so long as nothing has disturbed that finding in the interim. For example, being found fit for work in a work capability assessment.

The framework for changing decisions is established by The Social Security Act 1998. Under the 1998 Act, decisions are final. This means that once it has been made, a decision can only be changed through specific mechanisms if there are grounds to do so: revision, supersession, suspension and termination, being corrected, or being changed or replaced on appeal¹⁷.

Further, regulation 40 of the Universal Credit etc (Decisions and Appeals) Regulations, makes that determination final for purposes of further such decisions; this is somewhat confirmed in the ADM Chapter G2 at para G2003:

G2003 A determination on whether a claimant 1. has or does not have LCW or 2. is to be treated as having or not having LCW for the purposes of UC is conclusive for other UC decisions.

The sentence ‘such a decision is based, that determination is to be conclusive for the purposes of any further decision relating to such an allowance’ could be interpreted as being binding on future UC awards. However, the DWP believes that it refers to the specific award for which the determination was made. The DWP Stakeholder team has used the example of the work allowance and childcare costs. The DWP explained that once a claimant has been determined to have LCW for the UC work allowance, a second Work Capability Assessment (WCA) is not required if they stop working but their family still needs to claim childcare costs. Their belief is that regulation 40 prevents this extra step (which would be an unnecessary burden on both the claimant and the Department) as long as their health condition hasn’t changed. This avoids a disproportionate approach when revising or superseding the award¹⁸.

Whilst the more generous interpretation is arguable, the DWP are likely to require the claimant to undergo a new work capability assessment. We’ve yet to see any case law from the Upper Tribunal or higher on this point.

If this argument succeeded it’s worth noting that the 3 month relevant period would still need to be served before the LCWRA element could be included in the UC award. This is because the claimant wouldn’t come under any of the exceptions¹⁹.

The situation is different if the UC award continued with only the housing costs element. If the claimant stops being a prisoner within that 6 month period, the UC award will be superseded to include the LCWRA element (or transitionally protected LCW element) from the assessment period they stopped being a prisoner. This is because unlike Employment and Support Allowance there is no provision that allows a prisoner to be treated as fit for work, or removes the determination of LCW or LCWRA. So long as the UC award continues (for up to 6 months under the provisions explained above) whilst the claimant is a prisoner, there’s no reason that the LCW or LCWRA element cannot be included in the maximum UC award on release.

This means that if a UC claimant has housing costs that are met by Housing Benefit (i.e. because they live in temporary or specified accommodation) there’s a difference in treatment if the claimant has a determination of LCWRA. If the claimant had a housing costs element included in their UC, theirUC award would have continued as described above.

Where a claimant’s housing costs are met by housing benefit there’s a difference in treatment that may be unlawful discrimination. To bring such a case successfully, you have to satisfy a four-part test for unlawful discrimination (R (TP) v Secretary of State for Work and Pensions [2022] EWHC 123 (Admin)(“TP3”)). The claimant will need to show:

• that the circumstances fall within the ambit of one or more Convention rights (i.e. showing that the Convention applies to the facts in the first place); and
• that there’s been a difference of treatment between two persons who are in an analogous situation; and
• that the difference in treatment is on the ground of one of the characteristics listed in Article 14 or an “other status” and
• that there’s no objective and reasonable justification for that difference in treatment

A claimant in this situation could first argue that the LCWRA determination is final as explained above. In the alternative, unlawful discrimination could be argued.

Citizens Advice advisers can contact the Expert Advice consultancy service for further assistance with this argument.

My client had transitional protection — will this be included on a new UC claim?

This will depend on whether the UC award continued with the housing costs element only, or if UC terminated because the claimant had no housing costs, or was deemed to be a prisoner for more than 6 months. This applies to both transitional protection on managed migration and the transitional severe disability premium element.

UC award with the housing costs element

Transitional protection, including the transitional element (TE) can cease in certain circumstances. These are set out in regulation 56 of the Universal Credit (Transitional Provisions) 2014. None of these apply to a client whose only change of circumstance is that they become a prisoner.

If a UC award ends for any reason then the transitional protection cannot apply to a subsequent claim for UC²⁰. The exception to this rule is where UC ended because either financial condition in s5(1)(b) or s5(2)(b) of the Welfare Reform Act was not met, and the claimant re-claims within 3 months.

The wording of the provision is clear:

57. — (1) Where —

(a) a transitional capital disregard is applied, or a transitional element is included, in the calculation of an award, and that award terminates

(b) […]

(c) no transitional capital disregard is to apply and no transitional element is to be included in the calculation of any subsequent award unless paragraph (2) applies.

In a case where the UC award has continued with the housing costs element only, the award hasn’t terminated and the transitional element (or other transitional protection) should be included in the UC award once the client is no longer a prisoner.

However, once the client is no longer a prisoner, other elements will be added back onto the award. At the least the standard allowance, and possibly other elements related to LCW, caring, or having responsibility for a child or qualifying young person. As well as ceasing altogether the TE can erode in certain circumstances²¹.

The TE is eroded if there’s a ‘relevant increase’ in the second or subsequent assessment period. A relevant increase is the addition of a new element, or the increase of an existing element — except for the childcare costs element. The provision states:

(4) A “relevant increase” is , subject to paragraphs (5) and (5A), an increase in any of the amounts that are included in the maximum amount under sections 9 to 12 of the Act (including any of those amounts that is included for the first time , or included again following a change of circumstances), apart from the childcare costs element.

So although transitional protection shouldn’t cease, when the client is no longer a prisoner the re-addition of elements in a subsequent AP would erode the TE, perhaps to nil.

UC award without the housing costs element

Where UC terminates because there is no housing costs element, transitional protection will cease. As explained above, if the claimant makes a subsequent claim for UC there will be no transitional protection included in the award.

Practicalities

Notifying UC

Becoming a prisoner is a material change of circumstance that must be notified. Internal DWP guidance states that²²:

The Prisoner Benefit Action Team (PBAT) will receive notification of a claimant entering prison directly from the Ministry of Justice (MOJ). They will notify Universal Credit of this by adding a prison term to the claim.

Despite this the claimant (or a third party) should make efforts to report the change themselves. This is in case the automatic notification fails in some way or is delayed causing an overpayment. The legislation doesn’t prescribe who can notify a change, although the Advice for Decision Makers does have a non-exhaustive list²³. It’s unlikely the claimant themself will be able to notify UC, although the partner on a joint claim, or a friend, family member or other third party could do so.

Preparing to claim UC on release

Internal DWP guidance²⁴ states that support will be given to make a claim on release. This is done by a prison work coach. An appointment is usually made about 12 weeks before the release date. The prison work coach then supports the prisoner in a number of ways:

• giving advice on what evidence is required to make a claim
• ensuring that prison leavers are aware that they must complete an online claim as soon as possible on release and before the date of the initial appointment
• emailing Provider Agent Contact (PAC) to the Jobcentre inbox requesting an initial appointment be made for the release date, or the day after.

If the client hasn’t received this support they must claim UC in the usual way.

Once UC has been claimed, the claimant will be placed in a ‘labour market regime’ as usual. There are no specific easements for recently released prisoners (except for a compulsory switch off of requirements if UC continues whilst the claimant is a prisoner, i.e. with the housing costs element only). However advisers should be aware of the easements available²⁵ and help their client to request an easement is put in place if necessary.

People to help

Community Offender Manager helps put the person in contact with relevant services and make referrals.

Pre-release team²⁶ works with the Community Offender Manager and is responsible for assessing and identifying immediate resettlement needs. This can include:

• housing
• finances, benefit and money advice
• domestic abuse interventions
• education, training and employment

DWP Prison Work Coach works closely with Prison Employment Leads to support people into work after release. They also ensure people access Universal Credit via job centres in the community. 12 weeks before release, a range of support is offered to the prisoner such as preparing them to make a claim for UC . They can also support the prisoner to²⁷:

• retain their job, for example by liaising with the employer
• check general benefit entitlement
• ensure the prisoner has the necessary ID, bank account and evidence to claim any benefits
• explain the process of verifying ID for UC
• explain the process of applying for an advance payment

Multi-Agency Public Protection Arrangements (MAPPA) single point of contact²⁸ acts as a point of contact for claimants who have MAPPA restrictions. You can read more about MAPPA restrictions on GOV.UK.

Laura Docherty works as a Benefits expert in the Expert Advice team at Citizens Advice

The information in this article is correct as of the date of publication

Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.

References

[1] Regulation 19(1)(b), Universal Credit Regulations 2013

[2] Regulation 2, Universal Credit Regulations 2013

[3] You can read more about temporary release on the Prison Reform Trust website

[4] You can read more about release on license on the Prison Reform Trust website

[5] You can read more about hospital orders on the Mind website

[6] You can read more about hospital directions on Mental Health Law online

[7] You can read more about transfer directions on Mental Health Law online

[8] Regulation 3(3)©, Universal Credit Regulations 2013

[9] Regulations 3(6), Universal Credit Regulations 2013

[10] Regulation 3(6), Universal Credit Regulations 2013

[11] Regulation 19(2), Universal Credit Regulations 2013

[12] SSWP v AH (UC) [2023] UKUT 274 (AAC)

[13] You can read more about determinate prison sentences on the Sentencing Council website

[14] Regulation 19(2)(b), Universal Credit Regulations 2013

[15] Reg 7(16)(c)(i) and (17), Housing Benefit Regulations 2006

[16] Para 20, Schedule 1, Universal Credit, Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013

[17] Section 17, Social Security Act 1998

[18] Not available in the public domain

[19] Regulation 28, Universal Credit Regulation 2013

[20] Regulation 57 Universal Credit (Transitional Provisions) Regulations 2014

[21] Regulation 55 of the Universal Credit (Transitional Provisions) Regulations 2014

[22] Prisoners Guidance V23.0

[23] Advice for Decision Makers A4: Supersession, suspension and termination, para A4225

[24] Prisoners Guidance V23.0

[25] Switching-off requirements (easements) for Labour Market regime interventions

[26] Pre-release and Resettlement Policy

[27] Supporting prison leavers: a guide to Universal Credit

[28] MAPPA V3.0