Ask CPAG Online - 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 Pensions (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 in Chapter 48 of the CPAG Handbook.
The Government intends to replace the Work Programme with a 'Work and Health Programme' from the end of 2017 and in prepration for this, no more referrals are being made to the Work Programme from 1 April 2017. It is expected that the Work and Health Programme will be administered on similar lines to the Work Programme.
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 in Chapter 48 of the CPAG Handbook. Note that Work Programme providers cannot impose a sanction. They can only report compliance doubts to the DWP who can then impose a sanction.
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, or income support (IS) if, for example, you are a lone parent with a child under 5 or a carer.
2. 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.1
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 you may need specialist advice to argue this.2 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 requried 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 Chapter 3a of the Work Programme Provider Guidance. Chapter 4 paragraph 101 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.’
If you are not given proper details of what you required to do, you may have a strong case for arguing that the requirement is invalid or should be dropped or re-scheduled, or that you had a ‘good reason’ for failing to attend or participate (see paragraph 177 of the Court of Appeal decision in  EWCA Civ 43).
3. 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 70-73 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 56 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 the Work Programme Provider Guidance) and pursue this to the Independent Case Examiner.
4. 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.
Once a failure has occurred, your Work Programme provider will notify 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). Note that although your personal adviser can note the reason you have given for a failure, s/he has no power to decide whether you had 'good reason'. Only the DWP can decide this and whether to impose a sanction. Once the DWP receive the WP8, they should write to you saying 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’ (even if you have already told your Work Programme personal adviser).
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 Chapter 48 of the CPAG Handbook for more information on 'good reason'.
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).