Ask CPAG Online - On what grounds can a ‘high level’ JSA sanction be challenged?
Your Jobseeker's Allowance (JSA) can be reduced to nil if you:
- lose your job as an employee because of ‘misconduct’;
- voluntarily leave a job as an employee ‘without a good reason’;
- refuse to apply for or accept a job offer ‘without a good reason’;
- ‘neglect to avail’ yourself’ of reasonable opportunity of employment ‘without a good reason’1
The sanction lasts for 13 weeks, 26 weeks (if there has been a previous high level sanction in the preceding 52 weeks) or 156 weeks (if there has been more than one previous sanction in the preceding 52 weeks).2
The rules are set out in full in Chapter 48(1) of the CPAG Handbook. It is important to check in all cases that a 26 or 156 week sanction has been correctly applied and that any sanction period has been correctly calculated taking into account the rules set out on p1112 of the Handbook (‘reduced sanction periods’). Guidance on sanctions for decision makers in the Department for Work and Pensions (DWP) is given in Chapter 34 of the Decision Makers' Guide (DMG).
1 LOSING A JOB DUE TO MISCONDUCT
The sanction can apply if you leave employment due to misconduct following dismissal, resignation or suspension. ‘Misconduct’ is not defined in the rules but there has been a long history of case law on what constitutes misconduct and this is reflected in official guidance to decision makers. The main principles are covered in Chapter 48(4) of the CPAG Handbook. There is also detailed guidance in paragraphs 34531-34636 of Chapter 34 of the DMG.
Misconduct suggests an element of blameworthiness. In particular, it means ‘such misconduct as would persuade or oblige a reasonable employer to dismiss employees’ because, considering their misconduct, they are no longer fit to hold their employment. Misconduct is conduct which is connected, not necessarily directly, with your employment. Taking into account the relationship of employer and employee (and rights and duties of both), misconduct must be conduct that can fairly be described as blameworthy and wrong.
Everyone makes mistakes or is inefficient from time to time. So, for example, if you are a naturally slow worker who, despite making every effort, cannot produce the output required by your employer, you are not guilty of misconduct even if the poor performance may justify your dismissal. You are guilty of misconduct only if your actions or omissions are ‘blameworthy’. This does not mean it has to be established that you did anything dishonest or deliberately did something wrong - serious carelessness or negligence may be enough.
Note that DWP decision makers should not impose a sanction for misconduct if there is evidence from a medically qualified person that, at the time of the alleged misconduct, you were suffering from a mental illness and not responsible for the actions in question. Also, if details of a zero-hours contract come to light after you start work, you will always have good reason for leaving voluntarily or due to misconduct, and a sanction should never apply.
If there was misconduct, the DWP must establish that it caused the loss of the employment. In this context it need not have been the only cause, but must have been ‘an immediate and substantial cause’, but if the reason was actually unconnected to misconduct (e.g. the employer has used this as an excuse to dismiss you), there should be no sanction. Your evidence and that of your previous employer will clearly be crucial, but any supporting evidence from a third party could decisively tip the ‘balance of probabilities’.
2. LEAVING A JOB VOLUNTARILY WITHOUT A GOOD REASON
‘Voluntarily’ is not defined in the rules but there has been a long history of case law on what can constitute voluntarily and this is reflected in the official guidance to decision makers. The main principles are covered in Chapter 48(4) of the CPAG Handbook (note also the points about taking retirement).There is also detailed guidance in paragraphs 34426-34506 of Chapter 34 of the DMG.
If you did leave a job voluntarily, you must establish that this was done for a ‘good reason’. See Chapter 48(4) of the CPAG Handbook for dertails of what can constitute a good reason (note also the rules about ‘trial periods’ in the section about jobseeker allowance sanctions). This involves showing you acted reasonably and your circumstances make it proper that public funds should support you. There are no hard and fast rules as to when you have a good reason because the circumstances can vary so much. DWP decision makers should consider all the relevant circumstances which could include caring responsibilities, childcare expenses, or poor employment conditions.
‘Good reason’ is also relevant to whether you left a job ‘voluntarily’. If your terms and conditions are changed by your employer, and you leave your job, this may not be sufficient to show that you did not leave voluntarily. Similarly, retiring from your job simply because you have reached retirement age may mean you are still treated as leaving voluntarily.
You may have good reason for leaving employment if you had a genuine and substantial grievance about the employment (other than the level of pay) and you had tried in a proper and reasonable way to get it settled, but failed. If your employer persistently breaches health and safety law or does not pay you, then you would have good reason for leaving the paid work.
You should be given an opportunity to show that you had ‘a good reason’ for leaving a job before a sanction is imposed, so you should make detailed representations backed up by any supporting evidence (e.g. from your former employer).
3. REFUSING TO APPLY FOR OR ACCEPT A JOB OFFER WITHOUT A GOOD REASON
Relevant issues here can include whether you were notified and given sufficient information about the relevant job vacancy by the DWP or Work Programme Provider (if this did not happen, no sanction should apply) and whether you acted unreasonably when pursuing the vacancy. See Chapter 48(4) of the CPAG Handbook for more details. You can find more about what counts as a ‘good reason’ for failing to apply for a job at paragraph 34200 onward of Chapter 34 of the DMG.
Whether you had ‘a good reason’ for failing to apply for or accept a job will depend on all the circumstances of your case. The job should be suitable for you, taking into account your wishes, personal circumstances and the local labour market and any unavoidable work expenses (e.g. transport, child care and equipment) should not amount to an unreasonably high proportion of earnings. The level of pay should be suitable and not place you, or your, family at risk of hardship. Jobs must pay at least the minimum wage and comply with the Working Time Regulations 1998. You cannot be ordered to apply for a zero hour contracts, Work Trials, or self-employment. See Chapter 48(4) of the CPAG Handbook for what could constitute a good reason for refusing a job.
If you fail to apply for or accept a job notified to you (or turn up late for, or behave inappropriately at, an interview), the DWP will write to you stating your JSA will be sanctioned unless you can show you had a ‘good reason’ for the failure. Note that travelling time of less than 90 minutes each way cannot constitute a good reason unless it is unreasonable because of your health or caring responsibilities.3 Paragraph 34421 of the DMG states that the rate of pay is not, in itself, a good reason for refusing a job (unless it is below the minimum wage), but work-related expenses which form an unreasonably high proportion of earnings could be (see paragraphs 34340 and 34346-62 of the DMG).
4 'NEGLECTING TO AVAIL' WITHOUT A GOOD REASON
This failure overlaps somewhat with the one above. It covers situations where you apply for or accept a job but then act in a way which compromises the opportunity (e.g. by dressing or behaving inappropriately), or you fail to return to work with a former employer after a temporary break. See above for what could constitute a ‘good reason’.