Benefits and the Work Programme

Issue 223 (August 2011)

Simon Osborne describes the rules and arrangements that provide for claimants to be referred to the new employment programme, which replaces many of the existing programmes.

Introduction

The Work Programme was officially launched nationwide on 10 June 2011. The official press release described it as ‘the biggest single payment by results employment programme ever introduced and replaces much of the existing back-to-work support on offer with a programme that is built around the needs of individual jobseekers’. As the press release went on to say, the programme is addressed not only at jobseekers, but also at those ‘on long-term sickness benefits’.1 Information on the Directgov website says that income support and pension credit claimants living in England (not Scotland or Wales) may be allowed to take part on a voluntary basis.

So, we have a new employment programme aimed primarily at claimants of jobseeker’s allowance (JSA) and employment and support allowance (ESA). But what does this mean, and how does it work in practice? The answers lie in a mix of new benefit rules and official literature on the Work Programme.

Two new sets of benefit rules have been introduced: one regarding JSA and one regarding ESA. The key concept regarding both is that of compulsory ‘work-related activity’ – by referral to the Work Programme, claimants of these benefits can be required to undertake such activity, as specified by a personal adviser applying the scheme. For JSA (but not ESA), such activity can include work. Failure to participate without ‘good cause’ in compulsory activity will result in a benefit sanction/reduction.

Jobseeker’s allowance

For JSA, the relevant rules are The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, SI 2011 No.917. The Regulations say that this scheme is ‘provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search).’

Formally speaking, the ‘Employment, Skills and Enterprise Scheme’ (referred to here as ‘the Scheme’) is a scheme within section 17A of the Jobseekers Act 1995. Section 17A was inserted by the Welfare Reform Act 2009, and regulations made under it may impose upon claimants a requirement to ‘participate in schemes of any prescribed description that are designed to assist them to obtain employment. Regulations may, in particular, require participants to ‘undertake work, or work-related activity…with a view to improving their prospects of obtaining employment’. By ‘work-related activity’, the Act means: ‘activity which makes it more likely that the person will obtain or remain in work or be able to do so.’

As is clear from the title, the Regulations may apply not only to the Work Programme, but any programme deemed to be in the Scheme. Indeed, as the Explanatory Memorandum to the Regulations says (paragraph 7.7), the Scheme ‘provides the conditionality and sanctions framework’ for four programmes, only one of which is the Work Programme. The other three are Skills Conditionality, Service Academies and the New Enterprise Allowance. None of those other three, however, have been given the prominence that the Work Programme has, and the majority referrals to the scheme will be for that programme.

The Regulations allow any JSA claimant to be selected for participation in the Scheme, as long as they are required to meet the jobseeking conditions – including both members of a joint claim couple (only certain claimants in receipt of a training allowance are exempt from having to meet the jobseeking conditions). A claimant required to participate must be sent a written notice specifying that s/he must do so, the date on which it will start, ‘details of what [the claimant] is required to do’, and information about the consequences of failure to participate. Any changes to what the claimant is required to do must be notified in writing,2but there is no further attempt to define (or restrict) what sort of activity can be required, or when it can be required. In short, claimants have very little protection from the opinion of their personal advisers about work-related activity. The personal advisers making these decisions may be within Jobcentre Plus or, under the contracting arrangements, an adviser at a private or voluntary sector provider.3

Failure to participate in compulsory activity will result in a benefit sanction unless there is ‘good cause’ for such failure. In order to avoid the sanction, good cause must be shown within five working days of the notification of the failure. Good cause is not defined, but ‘all the circumstances of the case’ must be taken into account, including the claimant’s ‘physical or mental health or condition’.4Guidance (Memo DMG 16/11, paragraphs 11–12) refers to caselaw saying it includes facts which would probably have caused a reasonable person to act as the claimant did (R(SB) 6/83), and also refers to pre-existing guidance on good cause for not taking part in other employment programmes. Those subject to a sanction would also be well advised to check the written notice specifying the compulsory activity, to check whether they have indeed failed to participate.

Decisions on failure to comply, good cause and sanctions may only be made by a DWP decision maker (and, therefore, appeals under the normal rules should be possible against the imposition of a sanction).5Sanctions are in the form of loss of benefit, with the loss to last for two weeks for an initial failure, four weeks for a second, if within a year of the first, and 26 weeks for a third such failure. In the latter case, the sanction stops after a minimum of four weeks, where the claimant subsequently complies with the requirement to participate. Hardship payments may only be made where the claimant or a member of her/his family is in a ‘vulnerable group’ – eg, pregnancy, responsibility for child, and there is a risk of hardship.6

Employment and support allowance

The relevant rules are The Employment and Support Allowance (Work-Related Activity) Regulations 2011, SI 2011 No.1349. Although not mentioned specifically, these Regulations are made under section 13 of the Welfare Reform Act 2007, which provides that regulations may impose on someone required to attend work-focused interviews a requirement to undertake work-related activity as a condition of being entitled to the full amount of ESA. ‘Work-related activity’ is defined at subparagraph (7) of section 13 as: ‘an activity which makes it more likely that the person will obtain or remain in work or be able to do so’. The work-related activity that is referred to here will be that which is required as part of the claimant’s referral to the Work Programme.

Accordingly, the Regulations apply to an ESA claimant who is required to take part or has taken part in one or more work-focused interviews. In contrast to the JSA Regulations, there are a number of further safeguards.7

Claimants excluded by the Regulations from having to take part are: lone parents with a child under the age of five; those entitled to carer’s allowance; those entitled to a carer premium; and anyone in the support group. Regarding lone parents with older children, those with a child under the age of 13 may only be required to undertake work-related activity during the child’s ‘normal school hours’ (the Explanatory Memorandum says at paragraph 7.12 that lone parents with a youngest child aged 13 to 16 may request a similar restriction, but it will then be a matter for the discretion of the personal adviser). Further safeguards are that any requirement to undertake work- related activity ‘must be reasonable in the view of the Secretary of State, having regard to the person’s circumstances’, and that any requirement may not require the person to apply for a job or undertake work, or undergo medical treatment.

However, as in the JSA rules, there is nothing in the Regulations to prescribe exactly what kind of work-related activity may be required, or when the claimant may be referred. Similarly the personal advisers requiring work- related activity, notifying it in the action plans and making decisions about when it need not apply may be either in the DWP or a private or voluntary sector provider.8A claimant required to undertake work-related activity must be notified of that by its being included in a written action plan that is sent to them. The action plan must specify the work-related activity the person is required to undertake and any other ‘appropriate’ information.9Guidance (Memo DMG 15/11, paragraph 13) says this may be things like the date and time on or by which the work-related activity is to be undertaken. The requirement need not apply at a particular time if it is considered ‘unreasonable’ at that time.

An action plan must be reconsidered if that is requested, and a written decision of the Secretary of State issued following the request. In individual cases, a direction may be issued that a particular activity is to be the only kind of activity which is to be regarded as work-related activity for that person. That is where the Secretary of State has identified the person as ‘having a barrier to work and in the view of the Secretary of State has refused to address that barrier’, and that the activity is considered ‘a prerequisite to the person’s ability to obtain or remain in work’.10

Someone who fails to undertake compulsory work-related activity will receive a benefit reduction unless there is ‘good cause’ for such failure. In order to avoid the reduction, good cause must be shown within five working days of the notification of the failure. The reduction is 50 per cent of the amount of the work-related activity component for the first four weeks of non-compliance, and 100 per cent of that amount for each subsequent week. The sanction stops if the claimant undertakes the work-related activity, if they are no longer required to undertake it or if it is no longer considered appropriate. As with JSA, good cause is not defined, but ‘all the circumstances of the case’ must be taken into account, including the claimant’s ‘physical or mental health or condition’.

Guidance (Memo DMG 15/11, paragraph 19) indicates matters including health, attending medical or dental appointments, difficulties with caring arrangements and mis-understandings caused by language, literacy or learning difficulties should be among those considered. Again, most decisions on failure to comply, good cause and sanctions may only be made by a DWP decision maker (and, therefore, appeals under the normal rules should be possible against the imposition of a reduction). Private/voluntary sector advisers may, however, make decisions regarding cessation of a sanction.11

Work Programme and benefit claimants

The Work Programme will replace much of the current employment programme provision, including the New Deals, Employment Zones and Pathways to Work. The official ‘prospectus’ for the Work Programme, aimed at providing early information for potential providers, was that it would be ‘an effective programme designed to support a wide variety of customers back into sustained employment, including claimants of Jobseeker’s Allowance and those claiming Employment and Support Allowance’.12In essence, the programme provides back-to-work support rather than creating jobs. Providers will have the ‘flexibility’ to design support (hence the lack of prescription in the Regulations regarding what is work-related activity) and will be rewarded for keeping people in work and helping ‘harder-to-help customers’. Some 18 private and voluntary sector providers were awarded contracts. The official intent is that the programme is paid for via benefit savings, with around a million claimants expected to be helped in the first two years. Contracts are initially for up to seven years. Providers are to commit to ‘minimum service levels’ which should be made public, with the government able to treat failure to keep to them as breach of contract.

Though not specified in the rules described above (and it should be borne in mind that only the rules are legally binding), the prospectus outlines the time that different claimant groups are to be referred to the programme for mandatory work-related activity. For JSA, claimants who have recently moved from incapacity benefit and those facing significant disadvantage (eg, some young people and ex-offenders) may be referred at some point after three months’ claiming (although this information is not included on the Directgov website); those aged 18– 24 from nine months; and those aged 25 or over from 12 months. For ESA claimants, referral may be when they are expected to be fit for work in three months; in all other cases, referral may be made on a voluntary basis at any time after application of the work capability assessment.

What kind of work-related activity claimants may be expected to undertake remains to be seen. An email sent to organisations by the Director of Jobseekers and Skills at the DWP on 10 June gives a flavour of what some of the private providers have in mind – and it is quite a mix. Prospect is introducing ‘Come Dine with Me Workshops’, where customers complete a four-week healthy eating course, ‘demonstrating how to shop and cook healthily on a limited budget’. Ingeus is offering access to more than 3,500 ‘learndirect’ e-learning courses, including ‘Every Day English Skills’ and ‘Keyboard Skills’. The Prince’s Trust, acting with Reed in Partnership, will provide access to their Young Ambassadors, who will ‘share their often inspirational life stories to motivate Reed’s customers on their journey to employment’.

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. ‘Grayling launches a revolution in back to work support as the Work Programme rolls out nationwide’, DWP press release, 10 June 2001
  • 2. Regs 3– 5 The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, SI 2011 No.917
  • 3. Reg 18
  • 4. Reg 6– 8
  • 5. Regs 6– 8 are not the subject of ‘contracting out’ under reg 18
  • 6. Regs 8–10
  • 7. Regs 3 and 6 The Employment and Support Allowance (Work-Related Activity) Regulations 2011, SI 2011 No.1349
  • 8. Regs 9
  • 9. Reg 5
  • 10. Regs 4, 5 and 7
  • 11. Reg 8 and regs 61 and 63 of the Employment and Support Allowance (General) Regulations 2008 on failures, good cause and reductions are not subject to ‘contracting out’ under reg 9; however, reg 64 on cessation of reductions is.
  • 12. Department for Work and Pensions, The Work Programme Prospectus – November 2010, www.dwp.gov.uk/docs/work-prog-prospectus-v2.pdf