Ask CPAG Online - On what grounds can an ‘actively seeking work’ sanction be challenged?
One of the conditions of entitlement to Jobseeker's Allowance (JSA) is that you are ‘actively seeking employment’. No JSA will be 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 your JSA stops because you are treated as no longer actively seeking work and you then reclaim JSA within 13 weeks of your previous claim stopping.
Note that any period after the 13 weeks cannot be subject to a sanction, the period of the sanction is reduced by the previous period of non-entitlement, and a sanction cannot apply if there is no entitlement to JSA when you reclaim because, for example, you are still not actively seeking work or available for work.1 The rules are set out in Chapter 48 of the CPAG Handbook.
You are actively seeking work if you take such weekly steps as can reasonably be expected to have the best prospects of securing employment.2 You must take more than two steps a week unless taking fewer (or no) steps is reasonable. Regulations 18-22 of the JSA Regulations 1996:
- give examples of what constitutes a ‘step’ (e.g. drawing up a CV, registering with an employment agency and applying for jobs);
- state 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;
- disregard steps where you are abusive or violent, or your behaviour or appearance undermines your job prospects;
- treat you as actively seeking work in specified circumstances
Full details of the rules can be found in Chapter 45(3) of the CPAG Handbook. Detailed guidance on the question of actively seeking work for Department for Work and Pensions (DWP) decision-makers can be found in Chapter 21 of the Decision Makers Guide.
The following grounds for challenging a sanction are also relevant for challenging non-entitlement decisions relating to actively seeking work failures.
1. YOU SHOULD BE TREATED AS ACTIVELY SEEKING WORK
The grounds on which you are treated as actively seeking work are set out in regulations 18A -22 of the Jobseeker Allowance Regulations. They are also set out in Chapter 45(3) of the CPAG Handbook. It is always worth checking whether your circumstances fall within any of the categories, as the DWP may have wrongly disregarded or not been aware of this.
Note also 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
2. YOU WERE ACTIVELY SEEKING WORK
Whether you have taken sufficient steps to satisfy the requirement to ‘actively seek employment’ involves the use of judgement by decision-makers, taking into account all the circumstances of your individual case and what is ‘reasonable’ in the light of those circumstances. The grounds for disputing a decision, therefore, are normally that you have taken the steps you can reasonably be expected to take in the relevant weeks to have the best prospects of securing employment and that the decision-maker has failed to take all the relevant circumstances into account. This normally involves setting out detailed evidence (preferably written evidence) of the relevant steps and circumstances.
A decision that you are not actively seeking work will frequently refer to your 'claimant commitment' which includes details of your agreed steps to find work. Note that the JSA rules refer to a 'jobseeker's agreement' rather than a claimant commitment (the DWP is calling the jobseeker’s agreement a ‘claimant commitment’ in readiness for the tougher conditionality regime attached to Universal Credit). Entering into a jobseeker’s agreement (which remains in force) is a condition of entitlement to JSA, but there should be no sanction for failing to undertake all the activities set out in the agreement.
The contents of your claimant commitment are clearly relevant evidence to the question of whether you were actively seeking work at the relevant time. So where, for example, you have undertaken all or most of the steps you have agreed to, you would have a strong argument that you were actively seeking work and that there was no requirement to carry out further steps.
Even more significantly, the failure to carry out all or some of the steps set out in your claimant commitment does not, in itself, mean that you were not ‘actively seeking work’. This is particularly relevant where the agreement includes many more steps than the legal test of ‘at least three’.
Case law (see CJSA/1814/2007) has confirmed that whether you are actively seeking work test is a test of what you did, not what you did not do. The test is whether you took such steps as you were reasonably required to take to secure the best prospects of obtaining employment, and not whether you took 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 on the basis that you have failed to carry out all the steps in your committment.4 The test is whether you should have taken at least three steps in the relevant week, or whether fewer steps were reasonable; what steps were taken; and whether those steps were reasonable. If you satisfy the test, it is irrelevant that you failed to take other steps, whether or not they were in your claimant commitment.
Where the DWP has disregarded a step on the grounds that you were abusive or violent, or because of your behaviour or appearance, it may be necessary to question the facts and /or judgment of the decision-maker.