Dealing with Hardship During Sanctions

Dealing with hardship during sanctions

What does this section cover?

This section covers the following options for dealing with financial hardship during sanctions:

·  claiming other benefits;

·  claiming hardship payments of jobseeker’s allowance or employment and support allowance;

·  claiming ‘local welfare assistance’.

You may also need to seek specialist debt and money advice (where, for example, a sanction is causing you debt problems or rent arrears).

What other benefits can be claimed during a sanction?

You may be able to claim another benefit during a sanction. For example:

·  if your jobseeker’s allowance (JSA) has been sanctioned, you may be eligible to claim employment and support allowance (ESA) or income support (IS) if you satisfy the normal conditions of entitlement;

·  if your ESA has been sanctioned, you may be eligible to claim IS or JSA if you satisfy the normal conditions of entitlement.

It may also be possible for your partner to claim income-based JSA, income-related ESA, income support or pension credit for you both, if s/he satisfies the normal conditions of entitlement.

What happens to housing benefit (HB) during a sanction?

In most cases your HB should continue to be paid as normal during a benefit sanction. This is because:

·  for JSA, regulation 2(3)(a) of the HB Regulations 2006 treats you as being on income-based JSA (and therefore entitled to maximum HB) while you are not paid because of a sanction. Note, however, that this may not apply to an ‘actively seeking work’ sanction, or where entitlement to JSA ceases because you are not available for or actively seeking work;

·  for ESA, regulation 63(3)(a) of the ESA Regulations 2008 states that an ESA sanction cannot reduce your income-related ESA to below 10 pence per week, allowing you to retain your entitlement to maximum HB.

Despite this, it has been common practice for the DWP to notify local authorities (LAs) when JSA or ESA payments stop because of a sanction and for LAs to then suspend or terminate HB claims. This problem was highlighted in the recent Oakley Report on JSA sanctions .

The Government response to the report states that the DWP ‘accepts that the HB of claimants should not be stopped following a sanction…’ Unfortunately they go onto say that this is a technological problem which will take time to fix. In the meantime, DWP should advise claimants to notify their LAs to prevent their HB claims being affected.

You should, therefore, always notify your LA as soon as your JSA or ESA stops because of a sanction, quoting the appropriate regulations. If your entitlement to HB stops, you may have to make a new claim and ask for backdating on the grounds of ‘good cause’ (see p71-74 of the Handbook).

Note that you can be entitled to maximum HB on the basis of a ‘nil income’ and that hardship payments of JSA or ESA should ‘passport’ you to maximum HB.

If your council tax reduction stops because your JSA or ESA stops due to a sanction, you should contact your LA to ensure it is reinstated on the basis of your current circumstances (e.g. ‘nil income’ or hardship payments of JSA or ESA).

Can you claim a hardship payment of JSA or ESA?

What is a hardship payment?

Hardship payments are reduced payments of income-based jobseeker’s allowance (JSA) or income-related employment and support allowance (ESA) which can be paid if you are experiencing hardship because your normal benefit is not being paid in specified circumstances. This includes where your JSA or ESA has been sanctioned.

You can find full details of the rules from the following sources:

·  Chapter 54 of the Handbook;

·  Chapter 35 of the Decision Maker’s Guide (DMG) for JSA hardship payments;

·  Paragraphs 53095-53123 of Chapter 53 of the DMG for ESA hardship payments;

·  The law on Jobseeker’s Allowance (JSA) hardship payments is set out in regulations 140 – 146H of JSA Regulations 1996;

·  The law on Employment and Support Allowance (ESA) hardship payments is set out in regulations 64A-64D of ESA Regulations 2008.

When should you apply for a hardship payment?

You should apply for a hardship payment as soon as you need one and you meet the conditions. You cannot get a payment until you make an application but there are no rules preventing payments for the period before you make an application, so you should ask for backdating if you satisfied the conditions before you apply.

Note that you should, but may not be, told about hardship payments by the Jobcentre when you are sanctioned. This problem was highlighted in the Oakley report of JSA sanctions following which the Government pledged to ensure that sanctioned claimants are properly informed about hardship payments. Despite this, you still may not be told about claiming hardship payments so you may need to ask about them at the Jobcentre.

IF IN DOUBT, ALWAYS MAKE A CLAIM FOR A HARDSHIP PAYMENT – the worst that can happen is that DWP refuse to make a payment and you can challenge such a refusal.

When can you get a JSA hardship payment?

To qualify for JSA hardship payments, you must either be in a 'vulnerable group' or satisfy the DWP that you will 'suffer hardship' if JSA is not paid to you. If either of these applies to you, the DWP must make a payment to you - there is no discretion to not pay you. Hardship payments are payments of income-based JSA, so you also need to satisfy the means test and other conditions of entitlement. You cannot get a hardship payment of contribution-based JSA.

If your JSA has been sanctioned, you can get a hardship payment from the first to the last day of the sanction period if you are in a 'vulnerable group'. You are in a 'vulnerable group' if:

·  you, or your partner, are pregnant;

·  you are responsible for a child under 16 or a qualifying young person;

·  you or your partner have a chronic health condition;

·  you are caring for a severely disabled person.; or

·  you fall within any of the other categories set out on p1232/3 of the Handbook.

Detailed guidance on the vulnerable groups can be found in paragraphs 35055-35135 of Chapter 35 of the DMG.

If you are not in a vulnerable group, you can only get hardship payments from the 15th day of the sanction if you can show that you or your partner will suffer 'hardship' unless JSA is paid. If your JSA sanction is because you do not satisfy the jobseeking conditions, you can only get a hardship payment if you are in a vulnerable group. The rules for hardship payments are similar if your JSA is suspended instead of sanctioned.

You cannot get a hardship payment if you could qualify for IS (if this is the case, you should claim IS). If you are sick, you may be entitled to claim ESA instead. You do not need to claim a hardship payment if you are aged 16 or 17 because your sanctioned JSA is paid at the same rate as a hardship payment.

When can you get an ESA hardship payment?

You must satisfy the DWP that you or a member of your family is, or will be, in hardship unless a hardship payment is made to you. If the DWP decide this applies to you, it must make a payment to you - there is no discretion to not pay you. Note that unlike JSA, there is no list of ‘vulnerable groups’ – all ESA claimants are effectively treated as being in a vulnerable group and potentially entitled to a payment from the first day of a sanction.

Hardship payments are payments of income-related ESA, so you need to satisfy the means test and other conditions of entitlement. You cannot get a hardship payment of contributory ESA.

What is ‘hardship’?

There is no legal definition of ‘hardship’ but guidance to decision makers says it means ‘severe suffering’ or ‘privation’ (‘privation’ meaning ‘a lack of the necessities of life’, see Paragraph 35155 of Chapter 35 of the DMG for JSA and Paragraph 53096 of Chapter 53 of the DMG for ESA).

Note that the law only refers to ‘hardship’ and not ‘severe hardship’.

DWP decision makers are reminded that they should consider all the circumstances of you and your family (Paragraphs 35156 and 53097 of the DMG respectively). You must provide a statement of your circumstances and it is best to do this on the approved application form. You should provide as much detail as possible about the hardship you and your family will suffer if you are not given hardship payments, together with any supporting evidence.

The DWP must take into account factors including your available resources and whether there is a substantial risk that you will be without essential items when deciding whether you will experience hardship. Seep1230-1233 ofthe Handbook for more details about deciding hardship.

Do you have other resources?

When deciding whether you will suffer hardship, the DWP must consider what resources are likely to be available to your family without a hardship payment of JSA or ESA (including from anyone else in your household), how far these fall short of your level of reduced payment, and how long your difficulties are likely to persist. There is no definition of ‘resources’, but note that:

·  resources usually disregarded when calculating income-based JSA or income-related ESA can be taken into account (e.g. Personal Independence Payment and any savings) except child benefit and child tax credit;

·  only resources that are actually and immediately available should be taken into account;

·  resources only available on credit should be disregarded (see paragraphs 35196-8 for JSA and 53114 for ESA of the DMG);

·  assumptions should not be made that other members of your household (e.g. parents or non-dependent children) are in a position to support you;

·  previous payments of JSA should not be taken into account (see paragraph 35180 of the DMG);

Is there a substantial risk that your family will be without essential items?

Essential items include food, clothing, heating and accommodation and anything else essential to your well-being. DWP decision-makers are reminded that an item which is not essential for one claimant may be essential for another claimant (Paragraph 35214 of the DMG for JSA). The DWP must take into account whether you will be without such items at all or at ‘considerably reduced levels’ and if so, for how long.

Similarly, decision makers are told that people with children, health problems or disabilities are more likely to suffer hardship if they go without essential items (Paragraph 35217 DMG for JSA and Paragraph 53115 for ESA).

How do you apply for a hardship payment?

You should inform the DWP that you wish to apply for a hardship payment as soon as you need one. You can do this by going to the Jobcentre or ringing the DWP contact centre (0345 608 8545). The procedures which should be followed by the DWP in the case of JSA hardship payments are set out in guidance documents for staff. Similar procedures should apply to ESA hardship payments.

If you ask for a hardship payment in person at the jobcentre, you should be interviewed by someone who should explain the rules, give you a hardship application form JSA/ESA 10JP and make an appointment for you to be interviewed by a hardship officer. You should take the completed form to the interview together with other relevant documents. The interview should be arranged for the same day or (if your contact is made after 2.30pm) the following day.

If you have contacted the DWP by telephone to request a hardship payment, you should have the procedure explained to you and be given an appointment on the same or following day. You should be told to arrive 10 minutes prior to your appointment to complete the form JSA/ESA 10JP. You can download a sample of the form and accompanying notes by clicking here. When completing the form and attending your interview, you should give as much detail as possible about your circumstances and the hardship you are suffering or likely to suffer. If there is not enough room in the boxes in Part 8 of the form, you should attach an additional sheet, referring to this in the boxes.

Take any supporting evidence you have with you to the interview (e.g. children’s birth certificates, bank statements, evidence of debts, evidence of any health problems or disabilities in your family, evidence of finances of other people living in your household). The hardship officer should complete details of your essential expenditure on form JSA/ESA 11.

Note that if you are only getting contributory JSA or ESA, you will also need to complete form JSA3 or ESA3 to establish your entitlement to income-related JSA or ESA. If your JSA has been sanctioned because you have not been actively seeking work (or available for work), you may also need to complete form JSA (ILS) to reinstate your JSA claim following a previous disallowance. Note that for JSA, you are also required to make a ‘hardship declaration’ each time you sign on, to confirm that you are still in hardship.

How do you get a decision and payment?

You should receive:

·  a decision (and explanation) at the end of your interview;

·  written notice of an award on form JSA/ESA11A, or a refusal on form JSA/ESA11D;

·  payment in the normal way (i.e. directly into your bank account) immediately or by your next normal benefit pay day.