Ask CPAG online - 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 53 of the CPAG Handbook;
  • Chapter 35 of the Decision Maker’s Guide (DMG) for JSA hardship payments;
  • Paragraphs 53095-53123 of Chapter 53 of the Decision Maker’s Guide (DMG) for ESA hardship payments;
  • The law on Jobseeker’s Allowance (JSA) hardship payments is set out in regulations 140 – 146H of the JSA Regulations 1996;
  • The law on Employment and Support Allowance (ESA) hardship payments, is set out in regulations 64A-64D of the 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 review 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 or you would qualify for a disabilty premium;
  • you are caring for a severely disabled person.; or
  • you or your partner are aged 16 or 17 and are in hardship.

See Chapter 53 of the CPAG Handbook for the full list and conditions attaching to each category. Detailed guidance on the vulnerable groups can also 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 income support (IS), so if this is the case, you should claim IS instead. If you have a health condition or impairment, you may be able to claim employment and support allowance 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 effectivley 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. See Chapter 53 of the CPAG 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. 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.

How can you challenge the refusal of a hardship payment?

If you are refused a hardship payment, you can request a ‘mandatory reconsideration’ and if this is turned down, you can appeal to an independent tribunal. If the reasons you have been turned down are not clear, you can ask for a written statement of reasons, if this has not already been given to you.

When challenging the refusal, you should address the DWP’s reasons. These could be that:

  • you are not in a vulnerable group for an immediate JSA hardship payment;
  • you are not in hardship or likely to suffer hardship;
  • there are other resources available to you (e.g. from someone else living in your household);
  • there is no substantial risk that you will be without essential items.

You should submit any further evidence you have which supports your case.

How much is a JSA hardship payment?

Your normal entitlement to JSA is reduced by 40% of your JSA personal allowance. This means you are entitled to 60% of the personal allowance. Your normal JSA payment may include other premiums and housing costs which are not affected by a sanction and the hardship payment is calculated using normal income and capital rules.

Your applicable amount is reduced by 20% instead of 40% if you or your partner or child, are pregnant or ‘seriously ill’. ‘Seriously ill’ is not defined, but note that if you are incapable of work, you may be able to claim ESA instead.

How much is an ESA hardship payment?

The amount of an ESA hardship payment is 60% of the normal ‘main phase’ personal allowance`. You are also entitled to the normal components, premiums and housing costs which are unaffected by a sanction.