Ask CPAG Online - Challenging Universal Credit Sanctions
What does this section cover?
This section covers information and tactics relating to challenging universal credit (UC) 'work preparation' and 'work search' sanctions.
What does it not cover?
This section does not cover the following topics:
- Challenging 'high level sanctions' for ceasing work or losing pay voluntarily without a good reason or because of misconduct, or failing to apply for a job or accept a job offer without a good reason. Most of the information in On what grounds can a high level JSA sanction be challenged? is equally applicable to UC, except that the sanction periods are slightly different (see Chapter 47(2) of the Handbook for details) and guidance to decision makers is set out in Chapters K3 and K2 of the Advice for Decision Making Guide.
- Avoiding 'low' or 'lowest level sanctions' for failing to participate in a work-focussed interview without a good reason. Much of the information in On what grounds can a work-focussed interview sanction be challenged? is equally applicable to UC, except that the sanction periods are different (see Chapters 47(2) of the Handbook for details) and guidance to decision makers is set out in Chapters K5 , K6, and K2 of the Advice for Decision Making Guide.
- Avoiding work programme sanctions. Referrals to the Work Programme ceased on 1/4/17. It is due to be replaced by a Work and Health Programme from the end of 2017. For UC claimants already on the work programme, much of the information in Challenging JSA work programme sanctions is relevant, but there is Work Programme Provider Guidance specifically for UC claimants.
- Avoiding a sanction if you already working (see Chapter 46(3) of the Handbook for details of 'in-work conditionality) which is currently being trialled.
What UC sanction decisions can be challenged?
Any decision to impose a benefit sanction by reducing your UC can be challenged. Note that only a DWP decision maker can impose a sanction. Work coaches and Work and Health Programme Providers can only impose work related requirements and report failures to comply to DWP decision makers, who must then decide whether to impose a sanction.
How can you challenge a sanction decision?
A sanction decision can be challenged in the same way as other benefit decisions i.e. firstly by requesting a 'mandatory reconsideration' (revision) and then, if the decision is not changed as requested, by appealing to an independent tribunal. You cannot appeal until you have asked for a mandatory reconsideration and received a new decision from the DWP. You can find out more about about mandatory reconsideration here.
Note that you cannot ask for a mandatory reconsideration until you have received a sanction decision from the DWP. If you have been told to carry out a work-related requirement by your work coach or Work and Health Programme Provider which you think you should not be required to do, you can only make representations to him or her. Similarly, if you have been asked by the DWP to explain an alleged failure prior to being sanctioned, you can only make representations (e.g. that you had 'good reason' for a failure). You can only request a mandatory reconsideration and then appeal, if and when you receive a sanction decision.
Is it worth challenging a sanction decision?
The process of mandatory reconsideration and appeal can be daunting and lengthy (often not completed until well after a sanction has ended). But the success rate is high and can result in the payment of signficant arrears. Also, where a sanction is overturned, a subsequent sanction imposed within 12 months can be reduced (see Chapter 47 of the Handbook).
What are the time limits?
There is no time limit for requesting a mandatory reconsideration of a UC sanction decision. Unless you apply within a month of being sent a decision, however, or your application is accepted late (within 13 months) because of 'special circumstances', any subsequent appeal may be late or out of time (see Chapters 56(2) and 57(2) of the Handbook for details). You must normally appeal within a month of receiving a mandatory reconsideration decision, unless you have grounds for a late appeal (see Chapter 57(2)).
How do you request a mandatory reconsideration or appeal?
See Chapters 56(2) and 57(2) of the Handbook. There are also more details about requesting a mandatory reconsideration here. Note that if you live in a UC full service area, you should apply via you online journal.
On what grounds can you challenge a work preparation sanction?
You can challenge a work preparation sanction on any grounds, taking into account the following points:
- Should you have been subject to a work preparation requirement? In particular, were you, or should you have been exempt because, for example, you had 'limited capablity for work-related activity', were caring for a severely disabled person or a child under one, or were a recent victim of domestic violence? See Chapter 46(3) of the Handbook for details.
- Was what you were asked to do unreasonable? The legal purpose of a work preparation requirement is to make it more likely that you will obtain paid work or more paid work (section 16 Welfare Reform Act 2012), and you may be able to argue that what you were asked to do will not serve this purpose. Be ready to fully explain your reasons and difficulties. If you can get any supporting evidence (e.g. from your doctor, social worker, support worker), do so and show it to your work coach. If you have a disability or metal health problems, this may be central to whether what you asked to do was reasonable.
- Were you given proper information and notice about what you supposed to do, including details of the 'compliance condition'? Arguably, a failure to to provide you with proper 'prior information' including details of the compliance condition (i.e. what you must do to cease a failure) could render the sanction decisioin invalid (click here for more details about notification failures).
- Did you actually fail to do what you were supposed to do? This links with the previous point, but there may also be facts and evidence which the DWP decision was mistaken about or did not take into account.
- Did you have a 'good reason' for failing to carry out a requirement? There is no definitiion of 'good reason' but it can clearly include factors relating to your health and other personal circumstances. There is further information about 'good reason' in Chapter 47(4) of the Handbook. There is also extensive guidance to UC decision makers which may be helpful to your case.
Were you discriminated against because of your disability?
If you were discriminated against (e.g. treated less favourably or unfairly) because you have a substantial and long-term disability, you may be able to bring a claim against the DWP in the County Court under the Equality Act 2010. You should seek legal advice about this. A claim must generally be brought within 6 months of the act of discrimination. If you were discriminated against by a work programme provider, you may need to make your claim to the Employment Tribunal within 3 months.
Examples of discrimination could include being required to attend a course which you cannot get to because of a disabiilty (e.g. agoraphobia), or cannot access because the venue is not accessible for disabled people, or cannot engage in because of severe anxiety or difficulties relating to others.
You can find more details about the grounds for bringing a claim in the materials which accompanied our 2015 seminar on 'Challenging Work Programme Sanctions' which you can download here.
On what grounds can you challenge a work search sanction?
You can challenge a work search sanction on any grounds, taking into acount the following points:
Should you have been exempt from work search?
- This could apply if you had 'limited capablity for work' (but note that this does not apply while you are waiting to be assessed) or were caring for a severely disabled person or a child aged under three. You may also have been exempt because you were temporarily unfit for work, had recently suffered a bereavement or domestic violence or other specific temporary circumstances applied (see Chapter 47(3) of the Handbook for details).
Have you been sanctioned for failing to apply for or accept a particular job?
- Were you properly notified of the vacancy? Paragraph K3056 of the Advice for Decision Maker's Guide states that you must be properly notified, and that a record should be kept of the notification.
- Did you fail to apply for or accept the job? This is mostly a question of evidence, but note that turning up late for an interview or placing unreasonsble conditions on a job offer without a good reason can constitute failures (see paragraph K3057 of the Advice for Decision Maker's Guide).
- Did you have good reason for failing to apply for or accept the job? Paragraph K3052 of the Advice for Decision Maker's Guide states that the job must be one that you can reasonably do taking into account your skills, ability, location and capacity. Chapter K2 gives extensive guidance to decision makers on 'good reason', including where a job could affect your health, where travel or child care expenses could constitute an unreasonably high proprotion of your pay, where the details of a notified vacancy were incorrect, and where you have a religious or conscientious objection to a particlar job.
- Were you or should you have been not required to apply for a particular job because of a 3 months 'permitted period' (see Chapter 46(2) of the Handbook).
Have you been sanctioned for failing to work search for your expected number of hours or not taking all reasonable action to obtain work?
- What is your expected number of hours? You may be able to argue that insufficient deductions have been made on account of your caring reponsibilities or health problems. See Chapter 46(2) of the Handbook for details.
- Have you failed to do your expected number of hours? This will mainly depend on the facts and evidence, including the records and documentation you have.
- If you have failed to do your expected number of hours, have you nonetheless taken 'all reasonable action for the purpose of obtaining paid work'? This is an alternative way of satisfying the work search requirement which is provided for in regulation 95(1)(a)(ii) of the UC Regulations 2013
- Did you have a good reason for failing to carry out your work search requirements? There is no definitiion of 'good reason' but it can clearly include factors relating to your health and other personal circumstances. There is further information about 'good reason' in Chapter 47(4) of the Handbook. There is also extensive guidance to UC decision makers which may be helpful to your case.
- Have you failed to comply with the requirements set out in your 'claimant committment'? You should not be sanctioned purely on this basis. You can argue that your claimant committment only includes a 'record of your requirements' (section 14(4)(a) of the Welfare Reform Act 2012 refers) and you can only be sanctioned for failing to meet the requirements themselves rather than the claimant committment. A similar approach to JSA sanctions was endorsed in CJSA/1814/2007. Your expected number of hours and whether you have completed them or alternatively 'taken all reasonable action' (see above) should only be tested in accordance with the rules set out in Chapter 46(2) and (3) of the Handbook, rather than what is in your claimant committment, which may not be an accurate or up to date record of what you should be expected to do.