Can someone who has been given leave to remain in this country claim Incapacity Benefit. I would have thought that there were two main bars to this:

a) that they have not satisfied the work rule test, and
b) that they will not have been in receipt of sickness
benefit for 196 days.

However, the local DSS have sent both the wife (who has leave to remain) and the husband, (who does not have leave to remain) IB50's which are in essence review claim forms for people already receiving Incapacity Benefit.

Any thoughts?

Dave Daglish
Toryglen Benefits Advisor.

Someone who has exceptional or indefinite leave to remain can claim benefits. The problem is more likely to be that they will not have paid sufficient national insurance contributions in the relevant years to qualify for Incapacity Benefit, but may be awarded Income Support on the basis of Incapacity if they pass the Personal Capability Assessment (presumably the 'work rule test' you refer to?). There is no need to have been paid 'sickness benefit' for 196 days. The way through the PCA is by filling in the IB50 forms which your clients have been sent, then probably going for a medical examination. The DWP has the power to deem someone incapable of work until the medical examination has been done and a decision can be made on their claim.

You might want to invest in a copy of up to date CPAG Welfare Benefits and Tax Credits handbook or Disability Rights Handbook, both useful resources for information such as the above.

Helen