Ask CPAG Online - On what grounds can a JSA ‘Work Programme’ sanction be challenged?

The ‘Work Programme’ is a shorthand term for a number of schemes aimed at assisting JSA and ESA claimants to take up work. The full list of schemes is set out in regulations.1  See also Chapter 34 of the Decision Makers' Guide (DMG) which gives detailed guidance to DWP decision-makers. Most JSA claimants were referred to the Work Programme after claiming benefit for 12 months (if aged over 25) or 9 months (if aged 18-24).

Failure to ‘participate’ in the Work Programme without a ‘good reason’ when properly notified to do so can result in a first 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 ‘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.2 The rules are set out in more detail in Chapter 48 of the CPAG Handbook.

The Work Programme is administered by contracted providers who are paid by results (i.e. the number and longevity of work placements). The DWP issues detailed guidance to Work Programme providers, including what they can require you to do and what happens if they want to raise a “compliance doubt”. ‘Personal advisers’ working for these providers can report sanctionable offences to the DWP, but only a DWP decision-maker can impose a sanction. Note that it may be possible to avoid a sanction by arguing that you should not be selected for participation on a scheme.

CPAG held a seminar in 2015 covering challenges to work programme sanctions. You can download the seminer materials here.  

Note that the Government intends to replace the Work Programme with a 'Work and Health Programme' from the end of 2017. In preparation for the change, no referrals are being made to the Work Programme from 1 April 2017. It is expected that the new programme will run on similar lines.

Possible grounds for challenging a JSA work programme sanction include: 

1 NOTIFICATION FAILURES

You must be given written notice of the requirement to participate in the programme. This must include details of what you are required to do by way of participation, the start date and the consequences of failing to participate.

Following a 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. Similarly, once you are on the Work Programme, your provider should give you full details of what you are required to do, so that you can make meaningful representations if you think it is unsuitable or unreasonable. Failure to do so could invalidate a sanction for non-compliance (see Reilly and paragraph 177 of the Court of Appeal decision in [2016] EWCA Civ 43). The case law on notification following Reilly is complex and you may need specialist advice to argue this. 3h You should check CPAG’s website and Welfare Rights Bulletins for the latest information.

Note also that a sanction for failure to apply for, or accept a place on, a training scheme or employment programme can only be imposed if a vacancy is properly notified to you, whether orally or in writing.

2. NO FAILURE TO PARTICIPATE

You may be able to argue, on the facts of your case, that the alleged failure to participate in the Work Programme did not, in fact, occur. There is no definition of what constitutes participation, so each case will turn on its individual details of what you were required to do (this links with the notification point above) and have allegedly failed to do.

There may be similar factual disputes about whether you failed to apply for, or accept a place on, a training scheme, or gave up a place or lost it through misconduct.

3. GOOD REASON FOR A FAILURE

There is no definition of a ‘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 DMG (see para.34200 onwards) gives detailed guidance to DWP decision-makers on what could or could not constitute a good reason and it may be helpful to refer to or quote any paragraphs or examples which are favourable to your case. 

Examples of the circumstances which should be treated as contributing to good reason for an action or failure include if you are a victim of domestic violence, have a mental health condition or disorder, are a victim of bullying or harassment, are homeless, or where you lose or leave a work experience opportunity or placement other than for reasons of gross misconduct. See also Chapter 48 of the CPAG Handbook. 

The test of whether there is a ‘good reason’ also applies to a failure to take up a reasonable opportunity, or apply for or accept a place on, a training scheme or employment programme, or giving up such a place. Clearly each case will be different and must be argued on the basis of detailed representations and any supporting evidence. 

4. DISCRIMINATION

If you were discriminated against (e.g. on the grounds of disability), you may be able to bring a claim against your Work Programme provider or the DWP through the civil courts under the Equality Act 2010. Examples could include being required to attend a course which you cannot get do because of a disability (e.g. agoraphobia), or cannot access because the venue is not accessible for disabled people, or cannot engage in because of severe anxiety or difficultyrelating to others. This is more likely to apply if you are subejct to a sanction while claiming employment and support allowance rather than JSA (see 'On what grounds can an ESA work-related activity sancton be challenged?') . 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.

There are strict time limits and you will need legal advice to pursue a claim.