ESA and sanctions – more hard times ahead

Issue 232 (February 2013)

New rules came into effect on 3 December 2012 for employment and support allowance (ESA) claimants who fall foul of the requirement on them to take part in work-related activity or a work-focused interviews. Edward Graham outlines the main features of the new sanctions regime.

Conditionality has been a feature of ESA since it was introduced in November 2008. Claimants who were so required could be sanctioned if they failed without good cause to ‘take part’ in work-related activity or work-focused interviews. Prior to 3 December 2012 the sanction was only applied to the work-related activity component, and at a rate of 50 per cent for the first four weeks, and 100 per cent from thereafter. The sanction period was open ended; the full rate of the work-related activity component was only reinstated when the claimant took part in the work-focused interview or complied with the requirement to undertake work-related activity.

The rules change from 3 December 20121 to a new system of sanctions, applied to the personal allowance and with a fixed period of sanction that continues after the claimant complies with the requirements on them.

It is important to note, however, that the rules regarding who is required to take part in work-related activity or a work-focused interview are not changing, only the rules about sanctions. So claimants who will be unaffected by these changes include those in the support group and lone parents with a child under one.

The amount of sanction

The level of sanction is all of the personal allowance for a single person,2currently £71 per week. The work-related activity component is not affected, neither are any other elements of ESA that are in payment – eg, housing costs or other premiums.

The length of sanction

The length of the sanction period is made up of the period of non-compliance plus a fixed period, depending on whether the claimant has previously failed to comply (see below). However, if the claimant recomplies within seven days of the failure, only the appropriate fixed-period sanction is applied.

Once this initial period of seven days has passed, therefore, the sanction period is made up of an indefinite period (until the claimant complies) and an additional fixed period, determined by whether or not the claimant has had any previous failures to comply. Note that the following failures are always ignored in determining the length of the fixed-period sanction:3

  • failures before 3 December 2012;
  • failures within the previous two weeks of the current failure;
  • failures more than 52 weeks before the current failure.

Taking this into account, the fixed-period sanction after compliance is:4

  • for the first failure – one week;
  • for the second failure – two weeks;
  • for the third failure – four weeks.
Example 1:

Saher is notified that she must attend the jobcentre for a work-focused interview. She attends but refuses to discuss any of the issues the members of staff raise and does not agree with any of their suggestions. The DWP decides she has, without good cause, failed to take part in the interview, and she is notified of her failure and of the sanction to be imposed. Three weeks later she attends a work-focused interview and ‘takes part’. The indefinite period of sanction comes to an end but a further fixed-period sanction of one week is applied.

How claimants can comply

To bring the indefinite period of sanction to an end, the claimant must comply with the requirement placed upon her/him. For those who have been sanctioned for not taking part in a work-focused interview, this means:5

  • taking part in a work-focused interview; or
  • making an agreement to take part in a

work-focused interview at an agreed date. For those who have been sanctioned for failing to undertake work-related activity, compliance means:6

  • undertaking the activity specified; or
  • if so notified, undertaking some other activity; or
  • making an agreement to undertake either of the above at an agreed date.

Of concern here is the possibility that claimants could find themselves unable to comply through no fault of their own – eg, if no alternative work-related activity was available, how could they undertake to participate in it at an agreed date? However, we have been assured by DWP that it is the agreement to undertake it in the future that is crucial,7 – eg, at the next available opportunity.

Example 2:

Six months after her previous sanction ends, Saher is notified that she is being sanctioned again for a failure to part in a work-focused interview she did not attend. Three weeks after the decision, she is invited to attend a further interview and she contacts the jobcentre to confirm she will attend on the date notified. The indefinite period of sanction should end immediately as she has agreed to take part in a work-focused interview. However, as she has had a previous failure within the preceding 52 weeks, a fixed-period sanction of two weeks will be applied.

Example 3:

Boris has been sanctioned many times in the past (and had his work-related activity component withdrawn) for failing to attend work-focused interviews. He has now been notified of a sanction as he was directed to undertake work-related activity, a two-week course on improving his employability, but failed to attend. Two months after the sanction started, he goes back to the jobcentre and says he will go on the course, or any other, the next time it is running. The indefinite period of the sanction should end immediately as he has agreed to undertake the activity at the earliest opportunity, the next time it is running. The fixed period of sanction is one week. All of Boris’s previous failures were before 3 December 2012 and under the previous regime, so don’t count.

Hardship payments

As the level of sanction has been increased dramatically, a system of hardship payments has been introduced. They are available to claimants who are sanctioned and who:8

  • meet the conditions of entitlement to income-related ESA;
  • make an application for a hardship payment; and
  • provide ‘such information or evidence as they may require, in such manner as the Secretary of State determines’.

The Secretary of State must also be satisfied that the claimant (or her/his partner or dependent child) would be in hardship unless a hardship payment is made. The matters that must be taken into account in deciding whether the claimant is in hardship are:9

  • whether a disability premium is included in the ESA award, or disabled or severely disabled child premium in any child tax credit (CTC) award;
  • what resources are available to the household (excluding child benefit and CTC), including any resources from people outside the household – eg, family and friends;
  • the difference between the resources available and the amount of any hardship payment that might be awarded;
  • whether there is a ‘substantial risk’ (not defined) that the household will not have access to essential items, or will have access to them at ‘considerably reduced levels’ (again not defined) without a hardship payment. Essential items include food, clothing, heating and accommodation;
  • for how long the claimant will face the circumstances that require a hardship payment.

The amount of the hardship payment is 60 per cent of the personal allowance10 – £42.60 at present. As the work-related activity component is paid as normal, claimants who manage to get a hardship payment won’t be financially much worse off than at present. For example, a single person would receive £70.75 (£42.60 + £28.15) compared to £71 (personal allowance but no work-related activity component) under the previous set of sanctions. There is nothing in the rules to limit the period of time that a hardship payment can be paid for.

Appeals and good cause

Claimants still have the right of appeal against the imposition of a sanction, if they can demonstrate that they had good cause for their failure. Good cause is not defined prescriptively, merely that ‘all the circumstances of the case including in particular the person’s physical or mental health or condition’ must be taken into account.11

Concerns

This new system of sanctions appears to be unduly punitive towards claimants who are sick and disabled, and a major worry is that many claimants who are vulnerable will, as now, find themselves on the receiving end of inappropriate sanctions, due to poor decision making by the DWP. The work capability assessment is an extremely tough test of incapacity for work, and those who satisfy it, having undergone what is for many the ordeal of a medical assessment, should be receiving help and support if they wish to move into employment, not the threat of punitive sanctions.

Of particular concern must be the many thousands of ESA claimants who are severely disabled but stuck in the work-related activity group, as they are waiting up to a year for their appeal to try to get in the support group to be heard. They may find themselves sanctioned for failing to comply with requirements that they are simply too ill comply with, but are subject to, due to lamentable DWP decision making based on inadequate Atos medical reports.

 


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. The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 SI No.2756 makes various amendments to the Employment and Support Allowance Regulations 2008 SI No.794. It is these amended regulations that are referenced throughout the remainder of this article.
  • 2. Reg 63(2) ESA Regulations 2008
  • 3. Reg 63(8) ESA Regulations 2008
  • 4. Reg 63(7) ESA Regulations 2008
  • 5. Reg 63(7) ESA Regulations 2008
  • 6. Reg 63(11)(b) ESA Regulations 2008
  • 7. DWP Operational Stakeholder Engagement Forum, 21 November 2012
  • 8. Reg 64A ESA Regulations 2008
  • 9. Reg 64C ESA Regulations 2008
  • 10. Reg 64D ESA Regulations 2008
  • 11. Reg 61(3) ESA Regulations 2008