Ask CPAG Online - How can you avoid an ESA ‘work related activity’ sanction?
If you claim Employment and Support Allowance (ESA), you can be required to undertake ‘work-related activity’ (WRA), unless you are exempt. WRA is activity which makes it more likely that you will obtain or retain employment. This can include skills training, drawing up a CV, work experience (but this is not mandatory and cannot, therefore, trigger a sanction) and community work placements. It does not extend to applying for or undertaking employment. The rules are covered in Chapter 46(3) of the CPAG Handbook. Guidance for DWP decision makers is set out at paragraphs 53031-54 of Chapter 53 of the Decision Makers' Guide (DMG). Guidance for Work Programme providers is set out in the Work Programme Provider Guidance.
If you are required to undertake WRA, you will normally have been referred to the Government's 'Work Programme', which is administered by contracted providers. You should be allocated a 'personal adviser' to coordinate and communicate the WRA you are required to carry out. If you are not referred to the Work Programme, you could be required to carry out WRA by a Jobcentre 'work coach'. Note, however, that the Work Programme is being replaced by a 'Work and Health Programme' from the end of 2017 and to prepare for the change,no more referrals are being made to the Work Programme after 1 April 2017. If you have not been referred to the Work Programme, you will be allocated a Jobcentre 'work coach' who can direct you to undertake WRA.
Failure to undertake required WRA without ‘good cause’ can result in a sanction of 100% of your ESA personal allowance (subject to being left with at least 10 pence per week) until you comply or are no longer required to comply with the requirement, plus a further fixed period of 1, 2 or 4 weeks (depending on whether this is a first or repeat offence within the previous 52 weeks).
The following tactics could help you to avoid a WRA sanction:
1. SECURE EXEMPTION FROM WORK RELATED ACTIVITY
You are exempt from WRA if you are a lone parent with a child under 3 (if you have a child under 13, you are only required to undertake WRA during normal school hours) or are entitled to carer’s allowance or a carer’s premium. You are exempt if you are in the ESA ‘support group’ . You should ensure that the DWP and your Work Programme provider are aware if any of these exemptions apply. Any requirement to undertake WRA or a sanction for failure to undertake WRA should end.
Qualifying for the support group (due to having limited capability for work related activity) is a common route to avoiding WRA and sanctions. You qualify for the support group if you satisfy one of the relevant descriptors in the ESA regulations (see Chapter 44(1) and Appendix 5 of the CPAG Handbook), or if you can show that there would be substantial risk to your health if you were found not to have limited capability for WRA.1 This applies if undertaking the sort of WRA you might be required to do would be a substantial risk to your health.2
If you are on ESA and think you may qualify for the support group, you should seek further advice before asking for your claim to be looked at again. Your award is not protected and could be stopped altogether if you apply for the support group.
The DWP power to require you to undertake WRA is a discretionary one.3 Like all discretionary powers, it must be exercised reasonably, rationally and based on all the circumstances of each case. You may be able to persuade the DWP not to send you, or to postpone sending you, onto the Work Programme because of your current circumstances, taking into account any health problems. There is no right of appeal but if your representations are ignored, you can complain to the DWP and the Independent Case Examiner. The ultimate legal recourse is judicial review (see Chapter 56(7) of the CPAG Handbook - you should always seek legal advice in such cases).
2. GET FULL DETAILS OF WHAT YOU ARE REQUIRED TO DO
The regulations state that you must be given a written ‘action plan’ which specifies the WRA you are required to undertake.4 In practice, this does not appear to happen and you may have to request a copy of your action plan if you wish to see it. Following a Supreme Court decision in a case called Reilly, if you are not given sufficient information about the Work Programme or what you are requried to do before being given a notice, or insufficient detail about what you are required to do in an action plan, you may be able to argue that the requirement to undertake WRA is invalid. The case law on notification is complex and ongoing, however5, so you should check CPAG’s website and Welfare Rights Bulletins for the latest information.
If you are on the Work Programme, you should be given written notification of appointments you are required to attend and activities you are required to undertake. Paragraph 101 of Chapter 4 of Work Programme Provider Guidance states 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.’
You should always ensure you fully understand what you are required to do. If you cannot obtain sufficient information, you should complain to your Work Programme provider, and if necessary the Independent Case Examiner.
3. CARRYING OUT WORK RELATED ACTIVITY
WRA is mandatory, so if you refuse or fail to carry out a particular activity, your ESA is likely to be sanctioned. Even if you are unhappy about being asked to undertake a particular activity, you may decide it is preferable to do it rather than risk having your benefit sanctioned.
‘When deciding whether activity is reasonable in a participant’s circumstances you need to consider the claimant’s personal circumstances such as any health condition they may have, their ability to use transportation, their skills/education, any childcare responsibilities the claimant may have etc. These examples are not exhaustive.’
If you believe you have been asked to undertake an unreasonable requirement, you should discuss this with your Work programme personal adviser, who has the power to waive, postpone or rearrange an activity. Note that this is less likely to happen if you have a pattern of non-compliance.
Paragraphs 74 and 75 of Chapter 3a of the Work Programme Provider Guidance states:
‘Mandatory ESA and IS participants may request a reconsideration of any activity they have been mandated to undertake. Where they do so you must look again at the activity and take into account why the participant does not feel the activity is appropriate, reconsider if the activity remains reasonable and appropriate in the participant’s circumstances. Requests for reconsideration should be considered as soon as possible with your decision being notified to the participant in writing’
Paragraphs 76 and 77 state:
‘You may decide to postpone activity for Mandatory ESA and IS participants, if undertaking the activity at a particular time would be unreasonable in the view of the participant’s circumstances. Should you choose to postpone, you must ensure that you correctly mandate the participant to any rearranged activity.’
If your personal adviser refuses to waive or postpone an activity, you could take the matter up with a more senior manager. You could also complain to the provider organisation and pursue this to the Independent Case Examiner.
If a compliance doubt has been reported to DWP by a Work Programme provider, the provider should write to you to explain the activity you need to carry out to re-comply. This could be the WRA you previously failed to undertake or alternative WRA. If you agree to undertake the activity by contacting your provider as instructed in the letter (or are no longer required to undertake WRA), the provider should notify the DWP on form WP09 (see Chapter 7 of the Work Programme Provider Guidance). Paragraph 23 of the guidance states:
‘Once the ESA participant has received the letter detailing their re-compliance mandated activity and they confirm (face to face or by telephone) that they will undertake the activity and by the agreed timeframe. You must accept this as the ESA participant re-compliance. The date of the contact is the date you use for the re-compliance on the WP09.’
This is significant because if your ESA is sanctioned, the open-ended period of the sanction ends from the date you contact the provider, and the additional fixed period of 1, 2 or 4 weeks begins.
4. USING 'SAFEGUARDING PROCEDURES'
Work Programme providers are advised to identify whether you are ‘vulnerable’ i.e. you have a mental health condition, learning disability or other condition which affects your communication or cognition (see Chapter 4b and Chapter 6 of the Work Programme Provider Guidance). This should clearly influence the type of WRA you are expected to undertake. In addition, providers are advised not to issue a compliance doubt until they have fully discussed the matter with you and your advocate in a face-to-face meeting. Similar guidance applies to Jobcentre Plus work coaches who are expected to arrange a core visit before issuing a compliance doubt to ensure you understand what you are expected to do. You can read more about this 'safeguarding guidance' here. Greenwich Welfare Rights Service has produced a Resource Pack about the safeguarding guidance which explains the guidance and gives tactical advice about how to use it.
If you are threatened with a sanction and your Work Programme provider or the DWP has not complied with the 'safeguarding procedures', you should contact the DWP as soon as possible to make representations. This should result in the threat being lifted.
5. KEEP YOUR PERSONAL ADVISER OR WORK COACH FULLY INFORMED
If you are unable to attend an appointment or undertake a required activity, inform your personal adviser or Jobcentre work coach as soon as possible, fully explaining your circumstances. For this purpose, it is important that you find out how best to contact them (e.g. by email or telephone).
You should also keep your personal adviser or work coach fully informed of any relevant changes in your circumstances which affect your ability to carry out mandated activity. You can request a reconsideration of your action plan at any time because, for example, your circumstances have changed, or you are experiencing difficulties carrying out mandated activities. You should also immediately inform your personal adviser or work coach if you fall within a group which is exempt from WRA or if you are ‘vulnerable’ because of a mental health condition or learning disability.
6. SHOWING GOOD CAUSE FOR A FAILURE
If you fail to undertake required WRA, you must show that you had ‘good cause’ for your failure within 5 working days from the date DWP gives you notice of the failure.7. If you show good cause after 5 days, the DWP or an appeal tribunal may still take this into account when making a decision as to whether you should be sanctioned.8, but recent case law has cast doubt on their ability to do this.9 In any event you should send your representations to the DWP as soon as possible.
Work Programme providersand Jobcentre work coaches have no power to decide whether you had ‘good cause’, although they can take this into account when deciding whether to waive or postpone a WRA requirement. Once a failure has occurred, they notify the relevant DWP decision-maker on form WP8 who decide whether you had a good cause for the alleged failure. Although details of any ‘good cause’ you have told your personal adviser should be recorded on the form WP8, it is important that you make representations directly to the DWPdecision maker after you receive notification of a possible sanction.
There is no definition of ‘good cause’, although paragraphs 53052/3 of Chapter 53 of the DMG give guidance to DWP decision makers (see also Chapter 48(3) of the CPAG Handbook). These state that good cause includes whether your physical or mental health made it impracticable to undertake WRA at or by a particular time; whether you were prevented from undertaking WRA due to unforeseen circumstances such as a medical or dental appointment that could not reasonably be rearranged; attending a funeral of a relative; or difficulties with caring responsibilities. Any requirement for you to undertake WRA must be reasonable, taking into account your individual circumstances. Refusing to undertake an unreasonable requirement may constitute ‘good cause’.
Other issues to be considered include whether you misunderstood the requirement to undertake WRA due to language, literacy or learning difficulty or whether any misleading information was given by DWP. These are not exhaustive reasons and the DWP should consider all reasons given by you. Clearly each case must be argued on its merits and individual circumstances, on the basis of detailed representations and supporting evidence.
Your physical and mental condition is likely to be of particular relevance, including the basis on which you were found to have ‘limited capability for work’ (i.e. the descriptors you satisfied, or whether you were treated as having limited capability for work to avoid a substantial risk to health). It appears that decisions about the WRA are normally made by Work Programme advisers without reference to your ‘limited capability for work assessment’ (e.g. as set out in medical report form ESA85). You may want to point this out when making representations to DWP about good cause (e.g. where you were required to attend a course at a particular location when you were assessed as being unable to get to a specified place at all, or without being accompanied).
If you have a mental health condition, learning disability or other condition which affects your communication or cognition and the DWP has failed to follow its guidance for 'vulnerable' claimants, you should refer to this and request a suspension of the sanction threat until the procedures have been followed. You can read more about the procedures here.
If you did not receive notification of a requirement to undertake WRA, you should inform your Work Programme provider as soon as possible, explaining any difficulties you have receiving post. They may reschedule your required WRA without notifying a compliance failure to DWP. Non-receipt of a notification can constitute good cause 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 where you are arguing that a notification was not received (e.g. continuing problems with a postal address).
- 1. Regulation 35(2) ESA Regulations 2008
- 2. See the Upper Tribunal decision IM v SSWP (ESA)  UKUT 412 (AAC)
- 3. Regulation 3(1) ESA (WRA) Regulations 2011
- 4. Ibid regulation 5
- 5. See R(Reilly No2 and Hewstone) v SSWP  EWHC 2182 (Admin) and CJSA/1266/2013, both of which have been appealed to the Court of Appeal.
- 6. Ibid regulation 3(4)
- 7. Ibid reg 8(1)
- 8. Ibid reg 8(2)
- 9. CJSA/1266/2013