Avoiding sanctions:

What does this section cover?

This section covers tips and information relating to:

  • avoiding JSA Work Programme sanctions;
  • avoiding JSA ‘actively seeking work’ sanctions;
  • avoiding ‘high level’ JSA sanctions;
  • avoiding ESA ‘work-related activity’ sanctions;
  • avoiding ‘work-focussed interview’ sanctions.

How can you avoid a JSA Work Programme sanction?

The ‘Work Programme’ is a shorthand term for a number of schemes aimed at assisting jobseeker allowance (JSA) claimants to find work. The Work Programme is administered by contracted providers who are paid by results (e.g. the number and longevity of work placements). The Department for Work and Pension (DWP) issues detailed Work Programme Provider Guidance, about what providers can require you to do, how they should administer the programme, and when and how they should raise a ‘compliance doubt’. The full list of schemes can be found on p1110 of the Handbook.

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 a ‘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. The rules are set out in detail on p1118-1122 of the Handbook. Note that Work Programme providers cannot impose a sanction. They can only report a compliance doubt to the DWP who can then impose a sanction.

Work Programme providers can also mandate you to apply for or accept jobs or participate in ‘Mandatory Work Activity’. Avoiding sanctions for a failure to comply is dealt with under ‘Avoiding high level JSA sanctions’. You can also be sanctioned if you fail to participate in a ‘work-focussed interview’. Avoiding such a sanction is dealt with under ‘Avoiding a work focussed interview sanction’.

The following tactics could help you to avoid a JSA Work Programme sanction:

  1. CLAIM A DIFFERENT BENEFIT

You can avoid a JSA sanction if you can claim another benefit instead of JSA. You may be eligible to claim employment and support allowance (ESA) if you are too sick to work (see Chapter 3 of the Handbook) or income support (IS) if, for example, you are a lone parent with a child under 5 or a carer (see Chapter 5 of the Handbook).

  1. PERSUADE THE DWP TO NOT SEND YOU ON A SCHEME

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). Although participation is mandatory, the DWP has discretion whether to select someone for participation.[1]

Like all discretionary powers, this must be exercised reasonably, rationally and based on all the circumstances of each case.

You may be able to persuade your work coach to not send you, or to postpone sending you, on the scheme because of your current circumstances. There is no right of appeal, but if your representations are ignored, you could make acomplaint to the DWP and the Independent Case Examiner). The ultimate legal recourse is judicial review (see p1394 of the Handbook – you should always seek legal advice in such cases).

  1. GET FULL DETAILS OF WHAT YOU ARE REQUIRED TO DO

When referring you to the Work Programme, the DWP must give you details about the scheme as well as a notice which specifies when you are required to participate, details of what you are required to do, and the sanctions that can be imposed for failures.[2]

Following the 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 litigation is ongoing.[3] You should check CPAG’s website and Welfare Rights Bulletins for the latest information.

Once you are on the Work Programme, you should be allocated a ‘personal adviser’ who is responsible for coordinating and communicating your required activities. You should be given written notification of appointments you are required to attend and activities you are required to undertake. You can see examples of notices in the annexes of Chapter3a of the Work Programme Provider Guidance. Chapter4 paragraph 101states that providers:

‘….must ensure that, as a minimum, participants have access to all ongoing mandatory requirements in a single document that is available to them at their request. This should include a clear explanation of what each activity is, when it occurs, when it must be completed by and what evidence is required to demonstrate completion of the activity.’

If you are not given proper details, you may have a strong case for arguing that a requirement should be dropped or re-scheduled, or that you had a ‘good reason’ for failing to attend or participate.

  1. KEEP YOUR PERSONAL ADVISER FULLY INFORMED

If you are unable to attend an appointment or undertake a required activity, inform your personal adviser as soon as possible, fully explaining your circumstances. For this purpose, it is important that you find out how best to contact your personal adviser (e.g. by email or telephone). They have the power to rearrange a mandatory activity without notifying a ‘compliance doubt’ to the DWP (see Chapter 3a paragraphs 42-47 of the Work Programme Provider Guidance). Note that this is less likely to happen if you have a pattern of non-compliance.

You should also keep your personal adviser fully informed of any relevant changes in your circumstances which affect your ability to carry out mandated activity.

Any refusal or failure to carry out mandated activity is likely to result in a sanction. Even if you are unhappy about being asked to undertake a particular activity, you may decide it is preferable to do so rather than risk having your benefit sanctioned. You should only be asked to undertake activities which are reasonable, taking into account your personal circumstances (see Chapter 3a paragraphs 4 and 36 of the Work Programme Provider Guidance).

If you believe you are being treated unreasonably, you should discuss this with your personal adviser. If you are unhappy with the outcome, you could take the matter up with a more senior manager. You could also make a complaint to the provider organisation (they are required to have a proper complaints procedure – see Chapter 16 of Work Programme Provider Guidance) and pursue this to the Independent Case Examiner.

  1. SHOW YOU HAD A ‘GOOD REASON’ FOR A FAILURE

You can only be sanctioned if you fail to participate in the Work Programme ‘without a good reason’. The DWP interprets this as including a failure to undertake a specific activity. One of the problems identified in Matthew Oakley’s independent review of JSA sanctions is that Work Programme personal advisers have no power to consider whether you had ‘good reason’ for failing to carry out a mandatory activity.

Once a failure has occurred, they notify the DWP on form WP8 and it is for the DWP to decide whether you had a ‘good reason’ for the alleged failure (see Chapter 6 of Work Programme Provider Guidance). . Once DWP receive the WP8, they should write to you saying that your JSA will be sanctioned unless you can show a ‘good reason’ for the alleged failure. You should respond as soon as possible, giving full details of why you consider you had a ‘good reason’. Although details of any ‘good reason’ you have already told your Work Programme personal adviser should be recorded on the form WP8, it is very important that you also tell the DWP about your reasons.

There is no definition of ‘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 Decision Maker’s Guide(DMG) (para.34200 onwards) gives detailed guidance to DWP decision-makers on what can or cannot constitute a ‘good reason’ and it may be helpful to refer to or quote any paragraphs or examples which are favourable to your case. Note that refusing to undertake an unreasonable requirement may constitute a ‘good reason’. See also p1133/4 of the Handbook.

If you did not receive notification of a requirement, you should inform your Work Programme provider as soon as possible, explaining any difficulties you have receiving post. Non-receipt of a notification can constitute a good reason for failing to carry out a mandated activity, but the law generally assumes that a notification has been received if it has been properly sent. You will need to put forward good reasons why this assumption should not apply if you are arguing that a notification was not received (e.g. continuing problems with a postal address).

How can you avoid a JSA ‘actively seeking work’ sanction?

One condition of entitlement to JSA is that you are ‘actively seeking employment’. No JSA is 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 you requalify for JSA. If you are sanctioned but stop claiming JSA before the end of the sanction period, the sanction can be reapplied if you claim JSA again.

Guidance for Department for Work and Pensions (DWP) decision makers can be found in chapter 21 of the Decision Makers' Guide (DMG).

The following tactics could help you to avoid an ‘actively seeking work’ sanction:

  1. UNDERSTAND THE RULES

If you understand the rules, you are less likely to fall foul of them. You are actively seeking work if you take such weekly steps as can reasonably be expected to have the best prospects of securing employment.[4]

JSA Regulations[5] state that you must take more than two steps a week, unless taking fewer (or no) steps is reasonable. They also give examples of what constitutes a ‘step’ e.g. drawing up a CV or registering with an employment agency and applying for jobs. They specify 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. They also allow the DWP to disregard steps where you are abusive or violent, or your behaviour or appearance undermines your job prospects. The rules state that you must be treated as actively seeking work in specified circumstances when you are not doing so.

Full details of the rules can be found in Chapter 47(3) of the Handbook. Detailed guidance for DWP decision-makers can be found at paragraphs 21520-21980 of theDMG.

  1. CHECK IF YOU SHOULD BE TREATED AS ACTIVELY SEEKING WORK

The grounds on which you are treated as actively seeking work include where you are on a qualifying training course, experiencing domestic violence, coping with a domestic emergency (e.g. a family bereavement), or are away from home for up to 2 weeks (although you must remain ‘available for work’). It is always worth checking whether your circumstances fall within any of the categories. If they do, you should ensure that the DWP is aware of this to avoid a sanction being wrongly imposed. The full set of rules is set out in the JSA Regulations and they can also be found on p1065/6 of the Handbook and paragraphs 21690-2179 of the DMG.

Note 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).[6]

  1. AGREEING AND AMENDING YOUR ‘CLAIMANT COMMITMENT’

To qualify for JSA, you must agree and sign a written ‘jobseeker’s agreement’, which the DWP now call a ‘claimant commitment’. The commitment must include the steps you intend to take each week to seek work and improve your prospects of finding work. Although you do not have to carry out all the steps each week to be ‘actively seeking work’, whether you have done so is important evidence which the DWP will refer to when deciding whether to impose a sanction.

The claimant commitment is drawn up at an initial interview at the Jobcentre with a ‘work coach’. You must agree to sufficient steps but it important to be realistic and not agree to activities which you are unlikely to be able to carry out on a weekly basis. It is important to fully explain your circumstances, abilities and limitations to ensure the listed steps are reasonable and appropriate for you to undertake.

If you cannot agree on the steps which should be included, the matter can be referred to a decision-maker, but this could hold up the processing of your JSA claim. It may be better to sign the claimant commitment and then write to the DWP asking for it to be varied after you have been awarded JSA.

If your circumstances change at any time, or it becomes apparent that the steps in the commitment are unrealistic or inappropriate, it is important to discuss this with your work coach. You can seek a variation of the claimant commitment to avoid the risk of a sanction for non-compliance.

The rules are set out in Chapter 47(4) of the Handbook. Guidance to DWP decision makers is found at paragraphs 21826 to 21981 of the DMG.

  1. TAKING SUFFICIENT STEPS

You must take such steps (normally at least three each week) as can reasonably be expected to have the best prospects of securing employment, taking into account your individual circumstances (e.g. skills, qualifications, abilities, physical or mental limitations) and the availability of job vacancies. Note that activities such as:

  • reading the situations vacant pages in a newspaper or magazine;
  • visiting the Jobcentre Plus office and reading the advertisements displayed there;
  • registering with an employment agency;
  • writing to an employer;
  • applying for a particular vacancy

each count individually as a single step to seek employment, while writing to three employers or applying for three vacancies in the same week counts as three steps (paragraph 21611 of the DMG). You can find other examples of what counts as a step on p1063 of the Handbook.

Checking and applying for vacancies via the Government’s Universal Jobmatch website counts as a step. Note that you can be required by a Jobseeker’s Direction to create a profile and public CV on the Universal Jobmatch website but cannot be required to allow DWP access to your account to check your activity.

DMG guidance states that someone who has a good chance of getting employment may have many steps open to them, but only need take the steps that will offer them their best chance of getting employment e.g. consulting job advertisements in professional magazines or registering with a specialist employment agency.

However, someone who has a poor chance of getting employment may only have a few steps open to them, all of which it may be reasonable to expect them to take e.g. regularly visiting their local Jobcentre, or reading and applying for jobs advertised in the situations vacant pages of local newspapers.

If you have carried out all or most of the steps set out in your claimant commitment, this should be sufficient to show that you are actively seeking work. However, a failure to carry out all, or some, steps should not mean you are automatically treated as not actively seeking work. This is particularly relevant where your claimant commitment includes many more steps than the legal test of ‘more than two’.

Case law[7] confirms that whether you are actively seeking work is a test of what you do, rather than what you do not do. The test is whether you take such steps as you are reasonably required to take to secure the best prospects of obtaining employment, and not whether you take all the steps set out in your claimant commitment. Although your claimant commitment is important evidence of whether you are actively seeking work, you cannot legally be sanctioned simply on the basis that you have failed to carry out all the steps set out in the commitment.[8]The DWP should consider whether you have taken at least three steps in a week, or whether fewer steps are reasonable; what steps are taken; and whether those steps are reasonable. If you satisfy the test, it is irrelevant that you fail to take other steps, whether or not they are in your commitment.Nevertheless, the DWP often threaten and impose sanctions on the basis of a failure to carry out all the steps in the claimant commitment, so you should try your best to comply, or seek to have the commitment changed if it is too onerous or unreasonable.

Note that the DWP can disregard steps on the grounds that you were abusive or violent, or because your behaviour or appearance undermines your job prospects. This is a controversial and judgmental provision, but you need to be aware of it and act accordingly to reduce the risk of a sanction.