Ask CPAG Online - On what grounds can a ESA ‘work-related activity’ sanction be challenged?
If you are claiming 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. Exemptions include if you are in the ‘support group’, a lone parent responsible for a child under three, or you are entitled to a carer’s allowance or carer premium.1 The rules are set out in Chapter 46(3) of the CPAG Handbook.
The requirement and notification to undertake WRA can be made by Department for Work and Pensions (DWP) 'work coaches', or Work Programme personal advisers if you have been referred to the Work Programme. Your agreed WRA should be recorded in a written action plan, which you should, but are unlikley to be, given a copy of.
Regulations 63 and 64 of of the ESA Regulations 2008 stipulate that a failure to undertake required WRA without ‘good cause’ can result in a sanction of 100% of your ESA personal allowance if you are a single person over 25 for each week that you fail to undertake the WRA specified in your action plan or alternative WRA notified by the DWP, 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 rules are set out in Chapter 48(3) of the CPAG Handbook. Guidance for DWP decision makers on the approach to work-related activity can be found in Chapter 53 of the Decision Makers' Guidance (DMG).
It may be possible to challenge a sanction on the following grounds:
1. NOTIFICATION FAILURES
Regulation 5 of the ESA (WRA) Regulations 2011 requires that you must be notified of the requirement to undertake WRA in a written ‘action plan’ which must specify the WRA that you must undertake. You must also be given a copy of your action plan. In practice, it appears that claimants are not routinely given a copy of their plan and you may need to request a copy. If you are not given a copy of your action or written notification of particular activity you are required to carry out, you can argue that there is no legal basis for sanctioning you for failing to undertake the relevant activity, with reference to the case law on notification relating to Work programme sanctions.
2. NOT REQUIRED TO UNDERTAKE WRA
It is always worth checking whether you are legally required to undertake WRA (see Chapter 46(30 of the CPAG Handbook). You cannot be required to undertake WRA if you are:
- in the ESA ‘support group’;
- over state pension age;
- a lone parent responsible for a child under 3;
- a lone parent responsible for a child under 13, other than during normal school hours;
- entitled to a carer’s allowance or carer premium.
Note that WRA cannot include a requirement to apply for a job or undertake work of any sort. WRA can include work experience or a work placement, but these should be voluntary and you should not be sanctioned for failing to engage with work experience (see para 53033 of Chapter 53 of the DMG).
Note also that a sanction should cease from the time you fall into one of the above groups.
3. NO FAILURE
There is no definition of what constitutes a failure although regulation 63 of the ESA Regulations refer to a sanction being imposed for each week that you fail to meet a ‘compliance condition’. This is defined as a failure to undertake, or agree to undertake on a specified date, WRA specified in your action plan or any alternative WRA notified by the DWP or a Work Programme provider.
The question of whether you did or did not do what was required will depend on the facts and evidence of each case, with particular reference to the detail set out in your action plan.
4. GOOD CAUSE FOR FAILURE
If you fail to undertake required WRA, you must show ‘good cause’ for your failure within 5 working days of the date the DWP gives notice of the failure. If you show 'good cause' after the 5 day time limit, the DWP or a tribunal may take this into account, but recent case law has cast doubt on whether they can do this.2 In any event, you should make your representations to the DWP as soon as possible.
Note that if you are on the Work Programme, you must make your representations to the DWP and not to the Work Programme Provider (who has no power to decide whether you had good cause). If good cause cannot be established, a sanction is imposed. The question of ‘good cause’ can then be pursued by way of mandatory revision and appeal, subject to the normal time limits for revision and appeal (i.e. the 5 day limit no longer applies).
There is no definition of ‘good cause’ for ESA purposes. Paras 53052/3 of Chapter 53 of the DMG states that good cause can include 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 at or by a particular time 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.
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 the DWP or Work Programme provider. These are not exhaustive reasons and the DWP decision maker 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.
Note that the power to require you to undertake WRA is discretionary and should therefore be exercised rationally and reasonably, taking in to account your individual circumstances. Further, the Regulation 3(4) of the ESA (WRA) Regulations 2011 states that any requirement ‘must be reasonable...having regard to the person’s circumstances’. The DWP and Work Programme providers can postpone a requirement if it would be unreasonable to require you to undertake WRA at a particular time. Whether a requirement is reasonable clearly depends on the details of your individual case, but refusing to undertake an unreasonable requirement may constitute ‘good cause’.
Your physical and mental condition is likely to be of particular relevance. This may include reference to the basis on which you were found to have ‘limited capability for work’ (e.g. the descriptors you satisfied, or whether you were treated as having limited capability for work to avoid a substantial risk to health). 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 until the procedures have been followed. You can read more about the procedures here.
It appears that decisions on what WRA you are required to do are normally made by Work Programme providers without reference to your ‘limited capability for work assessment’ (e.g. as set out in medical report form ESA85). It is often relevant to refer to this when arguing that it is unreasonable to require you to undertake an activity which you have already been assessed by the DWP as unable to do (e.g. if you have been told to attend a course at a particular location when you have already been assessed as being unable to get to a specified place at all, or without being accompanied).
5. DISABILITY DISCRIMINATION
If you were discriminated against (e.g. treated less favourably or unfairly) because you have a substantial and long-term disability, you may be able to bring a claim against the DWP in the County Court under the Equality Act 2010. You should seek legal advice about this. A claim must generally be brought within 6 months of the act of discrimination. If you were discriminated against by a work programme provider, you may need to make your claim to the Employment Tribunal within 3 months.
Examples of discrimination could include being requried to attend a course which you cannot get to because of a disabiilty (e.g. agoraphobia), or cannot access because the venue is not accessible for disabled people, or cannot engage in because of severe anxiety or difficulties relating to others.
You can find more details about the grounds for bringing a claim in the materials which accompanied our 2015 seminar on 'Challenging Work Programme Sanctions' which you can download here.