Challenging sanctions

What sanction decisions can be challenged?

Any decision to impose a benefit sanction by reducing benefit entitlement can be challenged.

How can a benefit sanction be challenged?

A sanction can be challenged in the same way as any other type of social security decision i.e. by requesting a revision (‘mandatory reconsideration’) and then appealing to an independent tribunal.

Note, however, that:

  • There is no right of revision or appeal until a decision to impose a sanction has been made. Where, for example, you are unhappy about a particular work-related requirement but have not yet been sanctioned, or jobseeker’s allowance (JSA) has been suspended while the DWP decide whether to impose a sanction, you can only make representations to get the requirement withdrawn, the suspension lifted, or a decision issued to you.
  • You have a legal entitlement to a written decision if a sanction is applied, but it may be necessary to chase this up. Following the Oakley review on sanctions the Government has confirmed that benefit should never stop due to a sanction prior to you being given notification of the decision. It also pledged to abolish the procedure whereby JSA was suspended pending an ‘actively seeking work’ sanction decision.

Is benefit payable while a decision is being challenged?

There is no provision for payment of the sanctioned amount of benefit while a sanction is being challenged, but you may be eligible for another benefit, a hardship payment or local welfare assistance.

On what grounds can a sanction be challenged?

A sanction can be challenged on the grounds that:

  • there was no legal basis to impose a sanction on you (e.g. because there was no power to impose the relevant work-related requirement on you);
  • you were not properly notified about a requirement;
  • the alleged failure to carry out the requirement did not occur;
  • you had ‘good reason’ or ‘good cause’ for the alleged failure;
  • the amount of, or length of, or the start date of the sanction was contrary to the law (e.g. where there is a dispute about whether and when there was a sanction in the previous 52 weeks)

Note that the 52 week period during which a second sanction occurs runs from the date of the previous sanctionable action, and not from the date of the sanction decision. It may be possible to challenge an earlier sanction which could result in a shorter later sanction.

It is often helpful to go through a checklist of the above points when considering possible grounds for challenging a sanction.

The rest of this section examines common grounds for challenging different types of sanctions.

  • On what grounds can a JSA Work Programme sanction be challenged?
  • On what grounds can a JSA ‘actively seeking work’ sanction be challenged?
  • On what grounds can a ‘high level’ JSA sanction be challenged?
  • On what grounds can an ESA work-related activity sanction be challenged?
  • On what grounds can a ‘work-focussed interview’ sanction be challenged?

On what grounds can a JSA Work Programme sanction be challenged?

The ‘Work Programme’ is a shorthand term for a number of schemes aimed at assisting JSA and ESA claimants to take up work. The full list of schemes is set out in regulations.[1] See also Chapter 34 of the Decision Maker’s Guide (DMG) which gives detailed guidance to DWP decision-makers. Most JSA claimants are referred to the Work Programme by a Jobcentre Plus ‘work coach’ after claiming benefit for 12 months (if aged over 25) or 9 months (if aged 18-24).

Failure to ‘participate’ in the Work Programme without a ‘good reason’when properly notified to do so can result in a sanction of four weeks loss of JSA, or 13 weeks if you have already had a four week sanction in the previous 52 weeks. The same sanction can be imposed if you, without ‘good reason’, fail to take up an opportunity, or fail to apply for or accept, or give up or lose through misconduct, a place, on a training scheme or employment programme.[2] The rules are set out in more detail on p1118-22 of the Handbook.

The Work Programme is administered by contracted providers who are paid by results (i.e. the number and longevity of work placements). The DWP issues detailed guidance to Work Programme providers, including what they can require you to do and what happens if they want to raise a “compliance doubt”. ‘Personal advisers’ working for these providers can report sanctionable offences to the DWP, but only a DWP decision-maker can impose a sanction. Note that it may be possible to avoid a sanction by arguing that you should not be selected for participation on a scheme.

Possible grounds for challenging a JSA work programme sanction include:

  1. NOTIFICATION FAILURES

You must be given written notice of the requirement to participate in the programme. This must include details of what you are required to do by way of participation, the start date and the consequences of failing to participate.

Following a Supreme Court decision in a case called Reilly, if you are not given sufficient information about the programme before being given a notice, or insufficient detail is contained in the notice about what you are required to do (as opposed, for example, to ‘any activities’), you may be able to argue that the notice is invalid. The case law on notification following Reilly is complex and ongoing.[3] You should check CPAG’s website and Welfare Rights Bulletins for the latest information. Note also that a sanction for failure to apply for, or accept a place on, a training scheme or employment programme can only be imposed if a vacancy is properly notified to you, whether orally or in writing.

  1. NO FAILURE TO PARTICIPATE

You may be able to argue, on the facts of your case, that the alleged failure to participate in the Work Programme did not, in fact, occur. There is no definition of what constitutes participation, so each case will turn on its individual details of what you were required to do (this links with the notification point above) and have allegedly failed to do.

There may be similar factual disputes about whether you failed to apply for, or accept a place on, a training scheme, or gave up a place or lost it through misconduct.

  1. GOOD REASON FOR A FAILURE

There is no definition of a ‘good reason’ in the rules, so each case must be argued and decided on its merits and individual circumstances, taking in account all the relevant evidence. The DMG (see para.34200 onwards) gives detailed guidance to DWP decision-makers on what could or could not constitute a good reason and it may be helpful to refer to or quote any paragraphs or examples which are favourable to your case

Examples of the circumstances which should be treated as contributing to good reason for an action or failure include if you are a victim of domestic violence, have a mental health condition or disorder, are a victim of bullying or harassment, are homeless, or where you lose or leave a work experience opportunity or placement other than for reasons of gross misconduct. See also p1133-35 of the Handbook.

The test of whether there is a ‘good reason’ also applies to a failure to take up a reasonable opportunity, or apply for or accept a place on, a training scheme or employment programme, or giving up such a place. Clearly each case will be different and must be argued on the basis of detailed representations and any supporting evidence.

Note also that the power to require you to take part in the Work Programme is discretionary and should therefore be exercised rationally and reasonably, taking in to account the individual circumstances of each case. Refusing to undertake an unreasonable requirement may constitute a ‘good reason’.

On what grounds can a JSA ‘actively seeking work’ sanction be challenged?

One of the conditions of entitlement to Jobseeker’s Allowance (JSA) is that you are ‘actively seeking employment’. No JSA will be payable unless you satisfy this condition. In addition, a sanction of four weeks loss of JSA, or 13 weeks if you have already had a four week sanction in the previous 52 weeks, is imposed if your JSA stops because you are treated as no longer actively seeking work and you then reclaim JSA within 13 weeks of your previous claim stopping.

Note that any period after the 13 weeks cannot be subject to a sanction, the period of the sanction is reduced by the previous period of non-entitlement, and a sanction cannot apply if there is no entitlement to JSA when you reclaim because, for example, you are still not actively seeking work or available for work.[4] The rules are set out on p1123-4 of the Handbook.

You are actively seeking work if you take such weekly steps as can reasonably be expected to have the best prospects of securing employment.[5] You must take more than two steps a week unless taking fewer (or no) steps is reasonable. The JSA Regulations 1996 (regulations 18 to 22):

  • give examples of what constitutes a ‘step’ (e.g. drawing up a CV, registering with an employment agency and applying for jobs);
  • state that account must be taken of all your individual circumstances (e.g. skills, qualifications, abilities, physical or mental limitations) and the availability of job vacancies;
  • disregard steps where you are abusive or violent, or your behaviour or appearance undermines your job prospects;
  • treat you as actively seeking work in specified circumstances.[6]

Full details of the rules can be found in Chapter 47(3) of the Handbook. Detailed guidance on the question of actively seeking work for Department for Work and Pensions (DWP) decision-makers can be found in Chapter21 of the Decision Makers Guide.

The following grounds for challenging a sanction are also relevant for challenging non-entitlement decisions relating to actively seeking work failures.

  1. YOU SHOULD BE TREATED AS ACTIVELY SEEKING WORK

The grounds on which you are treated as actively seeking work are set out in regulations. They are also on p1065-6 of the Handbook. It is always worth checking whether your circumstances fall within any of the categories, as the DWP may have wrongly disregarded or not been aware of this.

Note also that a sanction cannot apply if you were treated as actively seeking work for a reason which no longer applies, resulting in the termination of JSA, and the DWP considers a sanction is not appropriate (e.g. because you were on an employment-related course for more than two weeks).[7]

  1. YOU WERE ACTIVELY SEEKING WORK

Whether you have taken sufficient steps to satisfy the requirement to ‘actively seek employment’ involves the use of judgement by decision-makers, taking into account all the circumstances of your individual case and what is ‘reasonable’ in the light of those circumstances. The grounds for disputing a decision, therefore, are normally that you have taken the steps you can reasonably be expected to take in the relevant weeks to have the best prospects of securing employment and that the decision-maker has failed to take all the relevant circumstances into account. This normally involves setting out detailed evidence (preferably written evidence) of the relevant steps and circumstances.

A decision that you are not actively seeking work will frequently refer to your claimant commitment which includes details of your agreed steps to find work. A decision that you are not actively seeking work will frequently refer to your 'claimant commitment' which includes details of your agreed steps to find work. Note that the JSA rules refer to a 'jobseeker's agreement' rather than a claimant commitment (the DWP is calling the jobseeker’s agreement a ‘claimant commitment’ in readiness for the tougher conditionality regime attached to Universal Credit). Entering into a jobseeker’s agreement (which remains in force) is a condition of entitlement to JSA, but there should be no sanction for failing to undertake all the activities set out in the agreement.

The contents of your claimant commitment are clearly relevant evidence to the question of whether you were actively seeking work at the relevant time. So where, for example, you have undertaken all or most of the steps you have agreed to , you would have a strong argument that you were actively seeking work and that there was no requirement to carry out further steps.

Even more significantly, the failure to carry out all or some of the steps set out in your claimant commitment does not, in itself, mean that you were not ‘actively seeking work’. This is particularly relevant where the commitment includes many more steps than the legal test of ‘at least three’.

Case law [8]has confirmed that whether you are actively seeking work test is a test of what you did, not what you did not do. The test is whether you took such steps as you were reasonably required to take to secure the best prospects of obtaining employment, and not whether you took the steps set out in your claimant commitment. It involves considering whether you should have taken at least three steps in the relevant week, or whether fewer steps were reasonable; what steps were taken; and whether those steps were reasonable. If you satisfy the test, it is irrelevant that you failed to take other steps, whether or not they were in your claimant commitment.

Where the DWP has disregarded a step on the grounds that you were abusive or violent, or because of your behaviour or appearance, it may be necessary to question the facts and /or judgment of the decision-maker.

On what grounds can a ‘high level’ JSA sanction be challenged?

Your Jobseeker’s Allowance (JSA) can be reduced to nil if you:

  • lose your job as an employee because of ‘misconduct’;
  • voluntarily leave a job as an employee ‘without a good reason’;
  • refuse to apply for or accept a job offer ‘without a good reason’;
  • ‘neglect to avail’ yourself’ of reasonable opportunity of employment ‘without a good reason’;
  • fail to participate in ‘Mandatory Work Activity’ without a good reason.[9]

The sanction lasts for 13 weeks, 26 weeks (if there has been a previous high level sanction in the preceding 52 weeks) or 156 weeks (if there has been more than one previous sanction in the preceding 52 weeks).[10]

The rules are set out in full on p1112-8 of the Handbook. It is important to check in all cases that a 26 or 156 week sanction has been correctly applied and that any sanction period has been correctly calculated taking into account the rules set out on p1112 of the Handbook (‘reduced sanction periods’). Guidance on sanctions for decision makers in the Department for Work and Pensions (DWP) is given in Chapter 34 of the Decision Makers' Guide (DMG).

  1. LOSING A JOB DUE TO MISCONDUCT

The sanction can apply if you leave employment due to misconduct following dismissal, resignation or suspension. ‘Misconduct’ is not defined in the rules but there has been a long history of case law on what constitutes misconduct and this is reflected in official guidance to decision makers. The main principles are covered on p1131-2 of the Handbook. There is also detailed guidance in paragraphs 34531-34636 of Chapter 34 of the DMG.

Misconduct suggests an element of blameworthiness. In particular, it means ‘such misconduct as would persuade or oblige a reasonable employer to dismiss employees’ because, considering their misconduct, they are no longer fit to hold their employment. Misconduct is conduct which is connected, not necessarily directly, with your employment. Taking into account the relationship of employer and employee (and rights and duties of both), misconduct must be conduct that can fairly be described as blameworthy and wrong.

Everyone makes mistakes or is inefficient from time to time. So, for example, if you are a naturally slow worker who, despite making every effort, cannot produce the output required by your employer, you are not guilty of misconduct even if the poor performance may justify your dismissal. You are guilty of misconduct only if your actions or omissions are ‘blameworthy’. This does not mean it has to be established that you did anything dishonest or deliberately did something wrong - serious carelessness or negligence may be enough.

Note that DWP decision makers should not impose a sanction for misconduct if there is evidence from a medically qualified person that, at the time of the alleged misconduct, you were suffering from a mental illness and not responsible for the actions in question. Also, if details of a zero-hours contract come to light after you start work, you will always have good reason for leaving voluntarily or due to misconduct, and a sanction should never apply.

If there was misconduct, the DWP must establish that it caused the loss of the employment. In this context it need not have been the only cause, but must have been ‘an immediate and substantial cause’, but if the reason was actually unconnected to misconduct (e.g. the employer has used this as an excuse to dismiss you), there should be no sanction. Your evidence and that of your previous employer will clearly be crucial, but any supporting evidence from a third party could decisively tip the ‘balance of probabilities’.

  1. LEAVING A JOB VOLUNTARILY WITHOUT A GOOD REASON

‘Voluntarily’ is not defined in the rules but there has been a long history of case law on what can constitute voluntarily and this is reflected in the official guidance to decision makers. The main principles are covered on p1132-3 of the Handbook (note also the points about taking retirement on p1107). There is also detailed guidance in paragraphs 34426-34506 of Chapter 34 of the DMG.