Ask CPAG Online - 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.1
The JSA Regulations2 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 speciify 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. These include where you are away from home for up to 2 weeks (although you must remain available for work), or if you are attending specified training courses.
Full details of the rules can be found in Chapter 45(3) of the CPAG Handbook. Detailed guidance for DWP decision-makers can be found at paragraphs 21520-21980 of the DMG
2. 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 JSA Regulations and can also be found in Chapter 45(3) of the CPAG 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).3
3. AGREEING AND AMENDING YOUR ‘CLAIMANT COMMITMENT’
To qualify for JSA, you must agree and sign a written ‘jobseeker’s agreement’, which the DWP calls a ‘claimant commitment’ (see blank claimant commitment form on right hand side at top of page). 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 claimant 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 45(4) of the CPAG Handbook. Guidance to DWP decision makers is found at paragraphs 21826 to 21981 of the DMG.
4. 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 in Chapter 45(4) of the CPAG 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 you cannot be required to allow DWP access to your account to check your activity.
Parraraphs 21617/18 of the DMG 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 in your claimant committment, 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 law4 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 committment is important evidence of whether you are actively seeking work, you cannot legally be sanctioned simply because you have failed to carry out all the steps set out in the committment.5 The legal test is 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, in practice, the DWP often threaten and impose sanctions on the basis of a failure to carry out all the steps in the claimant committment, so you should try your best to comply, or seek to have the committment 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.
5. KEEPING RECORDS AND EVIDENCE
It is important that you keep detailed records of your work-seeking activity as you will be required to show that you are actively seeking work when called for interviews with your work coach. You may be given a work plan booklet WS1 and accompanying notes to use.
Alternatively you can devise your own record with dates and details of activities carried out. You should keep any supporting documentary evidence, for example evidence in writing from employers, employment agencies or other bodies you have contacted.
Corroboration of your evidence is not essential though as you will not always have corroborative evidence of, for example, ‘asking around’, visits to an employment agency, or applying for jobs advertised and filled by word of mouth, for example (see paragraphs 21593/4 of the DMG).