Escalating conditionality

Issue 225 (December 2011)

David Simmons describes the new conditionality regime for benefit claimants provided for in the Welfare Reform Bill 2011.

Introduction

The Welfare Reform Bill 2011, which is current­ly before Parliament, provides for a new, tougher conditionality regime for benefit claimants. This reflects the growing political consensus in recent years, that work is the best route out of poverty, and that the benefit sys­tem should encourage claimants into work via enhanced ‘personalised conditionality’ – ie, di­rected mandatory activity to prepare for and obtain work. Ending what has been regularly described as the ‘something for nothing’ cul­ture of the benefit system is perceived to be a popular message to impart to the public and the media.

The new regime will be introduced into uni­versal credit, which is planned to replace in­come support (IS), income-based jobseeker’s allowance (JSA), income-related employment and support allowance (ESA), housing benefit and tax credits from October 2013 (see Bulletin 221). It will also be integrated into con­tribution-based JSA and contributory ESA after the introduction of universal credit. In ad­dition, the government intends to import ele­ments of the new scheme into IS, JSA and ESA prior to the introduction of universal credit – probably from sometime in 2012, depending on the passage of the Bill.

The framework of the new conditionality scheme is in the Bill.1The details will be in Regulations which have yet to be made. The government has published some illustrative draft Regulations to inform debate in Parliament, together with explanatory notes and policy briefing notes.2 The details of the scheme are likely to change, however, so the information presented in this article may not remain wholly accurate.

Conditionality within universal credit

The claimant commitment

The ‘claimant commitment’ is at the heart of the new conditionality regime. It is basically a record of a claimant’s individual responsibili­ties in relation to an award of universal credit. It will include details of:

  • the ‘work-related requirements’ the claimant has to undertake (see below), including, where appropriate, the details of his or her availability for work, work-search activity, work placements and courses, attendance at the local Jobcentre Plus office, and participation in work-focused interviews;
  • the amount and duration of benefit sanctions (see p5) if the requirements are not met, together with notice of the right to appeal against a sanction;
  • the duty to notify changes of circumstances and correct information to avoid recoverable overpayments and prosecution.

Acceptance of a claimant commitment (either online – the default requirement – or by telephone or in writing, as specified by the DWP) will be a basic condition of entitlement to universal credit. Failure to agree a commitment will result in no benefit being paid. In the case of couples, both partners will have to accept an individual commitment (it is likely that the single rate of benefit will be paid if one partner does not accept a commitment).

Although the government has indicated that the commitment will be drawn up jointly by the claimant and a personal adviser, the legislation provides for a ‘top-down’ approach, with the record being prepared, reviewed and updated by the Secretary of State. The commitment has to be changed if the claimant moves into a different conditionality group (see below). Entitlement to benefit only arises if a claimant accepts the most up-to-date version of the commitment.

Work-related requirements

The Bill provides for the following four types of ‘work-related requirements’ with which claimants will have to comply (failure to do so will result in a benefit sanction):

  • participation in ‘work-focused interviews’ to assess work prospects and identify activities, training and work opportunities to enhance the claimant’s job prospects. The rules are likely to be similar to those currently in place, but interviews may be arranged more frequently;

 

  • ‘work preparation’, which is specified activity aimed at increasing the likelihood of obtaining paid work (or more or better-paid work), including attending skills assessments, participating in training, work experience, a work placement or an employment programme, drawing up a business plan, and ‘improving personal presentation’. A work placement will include ‘mandatory work activity’ for jobseekers, comprising four weeks’ unpaid work. The government also intends to introduce compulsory community work (for at least 26 weeks) for jobseekers who have been on the Work Programme for two years or more;

 

  • ‘work search’, which is ‘all reasonable action’ and specified activity to obtain paid work (or more or better-paid work) including looking and applying for jobs, drawing up a CV, and registering with an employment agency. The default requirement will be that claimants must ‘treat looking for work as their full-time job’ and look for any full-time work paying at least the minimum wage within 90 minutes of their home. Where this is not appropriate, however, claimants will be able to narrow their work search in accordance with their claimant commitment (see below);

 

  • ‘work availability’, which is a declared ability and willingness to immediately take up paid work (or more or better-paid work). The default requirement will mirror the ‘worksearch’ requirement (ie, availability for full-time work within 90 minutes’ travelling time), with exceptions for certain claimants who will be able to restrict their availability in specified circumstances (see below).

Claimants can be directed to undertake specific activity and must demonstrate compliance with their work-related requirements by providing evidence and information and attending interviews with their personal adviser.

In-work conditionality

The introduction of ‘in-work conditionality’ through the requirement to prepare, look, and be available for more or better-paid work is a new concept.

The intention is to apply it to claimants below a ‘conditionality threshold’. For most claimants, the threshold will be set at the weekly national minimum wage for a 35-hour week. At current levels, this would be £212.80 for single claimants over 21, and £425.60 for couples (before tax). Claimants with young children, caring responsibilities and work-limiting health problems would have a lower threshold, equivalent to the weekly national minimum wage for the number of hours they are required to be available for work, as set out in their claimant commitment.

Claimants above the threshold would not be subject to conditionality. Those below the threshold would be subject to all the work-related requirements, including both members of a couple, unless one was already in full-time work. There will need to be (inevitably complex) rules on the calculation of pay, where it fluctuates.

Claimants will be able to move above the threshold by increasing their hours or pay in their current job, or finding new or additional employment. Their preferred option will determine the activity they will be expected to undertake to obtain more or better-paid work, but any requirements should be reasonable, proportionate and compatible with their current work commitments.

Conditionality groups

There will be four groups. Claimants may move into different groups as their circumstances change.

No work-related requirements

The following groups will not be subject to conditionality, although they will still normally have to accept a claimant commitment which will set out their responsibilities – eg, to report changes in circumstances:

  • claimants with limited capability for work and work-related activity, as assessed through the work capability assessment (WCA) – ie, those currently in the ‘support group’;
  • claimants with ‘regular and substantial caring responsibilities’ for a ‘severely disabled person’ (these terms have not yet been defined, but are likely to relate to entitlement to carer’s allowance and disability living allowance or the personal independence payment);
  • claimants responsible for a child under one (lone parents or the main carer in a couple);
  • recent victims of domestic violence, who will be exempt from work-related requirements for up to 13 weeks. It is likely that this will apply to claimants who have suffered actual or threatened violence within the previous six months, inflicted by a partner or relative with whom they no longer live;
  • women who are pregnant for at least 24 weeks, from 11 weeks before their due date to 15 weeks after the pregnancy ends;
  • adopters, for 52 weeks from the date of the adoption;
  • claimants above the qualifying age for state pension credit;
  • full-time students;
  • claimants in work who are above the ‘conditionality threshold’ (see above), or would be but for the fact that they are on maternity or paternity leave, on strike, entitled to statutory sick pay, or in prison.
Work-focused interviews only

The following groups will be required to attend work-focused interviews only:

  • claimants responsible for a child aged over one and under five (lone parents or the main carer in a couple);
  • foster carers with a foster child under 16, or under 18 in exceptional circumstances (lone parents or the main carer in a couple, unless, exceptionally, both partners need to provide care).
Work preparation and work-focused interviews only

Claimants with limited capability for work, as assessed by the WCA, will fall into this group. As now, they must prepare for work, but cannot be required to look for, or take up, a job. They are also exempt from compulsory mandatory work activity (four weeks’ unpaid work).

Subject to all work-related requirements

All other claimants will be subject to all the work-related requirements, including attending work-focused interviews, work preparation (including mandatory work activity and community work), work search and work availability. This will apply to jobseekers, those in work under the ‘conditionality threshold’ and claimants with a youngest child over five.

As currently, certain claimants in specified circumstances will be allowed to restrict their work search and availability, including:

  • those previously employed with a ‘good work history’, who can be allowed up to 13 weeks to look for similar employment only;
  • lone parents with a child aged five to 12 (or older in exceptional circumstances), who can restrict their work search and availability to fit in with school hours and the availability and affordability of childcare (particularly in school holidays);
  • couples with a child under 13, who can be allowed similar restrictions (either the main carer, or both partners if they are collectively available for sufficient hours);
  • carers and those with a health condition, who can restrict their availability and worksearch to fit in with their limitations;
  • claimants on maternity and paternity leave, in prison, in approved training, or subject to temporary circumstances which would make it unreasonable for them to look, or be available, for work.
Sanctions

Sanctions, in the form of loss of benefit, will be enhanced under the new system. The intention is to provide a ‘clear and strong’ sanctions regime, which will be easy to understand and explain, and which will incentivise claimants to meet their responsibilities.

There will be higher, medium and lower level sanctions. Where claimants incur more than one sanction, they will run ‘end to end’, rather than concurrently (as happens with some current JSA sanctions) and will resume on a reclaim for universal credit (less the number of days benefit was not in payment). Fixed-period

sanctions incurred in a ‘compliance period’ cannot exceed three years. Most sanctions will result in the loss of the standard personal allowance (currently £67.50 for single claimants over 25). In the case of claimants who are not receiving maximum universal credit, the reduction could eat into elements paid for children and housing costs. A sanction cannot reduce an award to less than zero. A sanction will cease if a claimant is no longer subject to workrelated requirements, and after a year of compliance if a claimant has been working for at least six months in that period.

Higher level sanctions

These will apply to claimants subject to all work-related requirements who:

  • cease working, lose pay permanently (of more than a set amount), or fall below their conditionality threshold, because of misconduct or voluntarily for no good reason;
  • fail for no good reason to apply for a specified vacancy or take up an offer of paid work;
  • fail for no good reason to undertake required mandatory work activity (four weeks’ unpaid work placement).

Losing a job or pay and failing to take up a job offer in the six months before claiming universal credit can also result in a sanction. ‘Good reason’ is likely to include factors such as health, language and literacy difficulties, caring responsibilities, the cost of childcare and transport problems. Much of the current caselaw on misconduct and voluntarily leaving is likely to apply.

The higher level sanction will normally be loss of the standard personal allowance for three months for a first failure, six months for a second higher level failure within a year, and three years for a subsequent failure within a further year. In the case of couples, the reduction will be 50 per cent of the standard couple allowance if one partner is sanctioned (100 per cent if both partners are sanctioned).

Medium level sanctions

These will apply to claimants subject to all the work-related requirements who fail, for no good reason, to look, or be available for, work. The sanction will be loss of the standard personal allowance (50 per cent of the couple allowance) for four weeks for a first failure, and three months for subsequent medium level failures within a year of a previous failure.

Lower level sanctions

These will apply to a failure, for no good reason, to undertake a specific work search requirement, a work preparation requirement, or attend a compliance interview (or provide evidence or information) or a work-focused interview. The sanction will normally be loss of the standard personal allowance (or 50 per cent of the couple allowance) until the requirement is met, plus a further fixed period of seven days for a first failure, 14 days for a second lower level failure within a year, and 28 days for a subsequent failure within a further year. For claimants required to attend work-focused interviews only, a failure to attend an interview for no good reason will result in the loss of 20 per cent of the standard personal allowance (or 10 per cent of the couple allowance) until an interview is attended. Failing to attend a second interview will result in a 40 per cent sanction (20 per cent of the couple allowance).

Hardship payments

These will continue to be available during a sanction (immediately for vulnerable claimants and after 14 days for others), but may be recoverable and time limited.

Administration

The administration of the conditionality regime will be, as now, ‘contracted out’ to private and voluntary sector organisations. They will deliver the government’s ‘Work Programme’ via a network of personal advisers who have the duty to assist and support claimants, and the power to direct them to undertake specific work-related requirements. They do not have the power to impose sanctions, but will report sanctionable failures to DWP decision makers, who then decide whether or not to sanction. Work Programme suppliers are paid by results – ie, the number and longevity of employment and work placements, with higher payments for ‘hard-to-place’ claimants.

Appeal rights

As now, there will be no right of appeal to a tribunal against work requirement directions. Disputes will have to be resolved with the claimant’s personal adviser, or by asking for a direction to be reviewed by a manager. There will be a right of appeal against a DWP decision to impose a sanction, including whether there was ‘good reason’ for not complying with a requirement.

Conditionality within IS, JSA and ESA

Once universal credit is introduced in 2013, the above conditionality regime will be integrated into contribution-based JSA and contributory ESA.

Prior to the introduction of universal credit, probably from sometime in 2012, elements of the regime will be introduced into IS, JSA and ESA as follows.

JSA
  • Claimants will normally have to accept a claimant commitment instead of a jobseek-er’s agreement, as a condition of entitlement, which will include details of their availability for work and work-seeking activity. Disputes about this can be reviewed by the Secretary of State.
  • Most of the elements of the above sanctions regime which apply to jobseekers will apply to JSA. These will include higher level sanctions, as on p5, for leaving a job voluntarily without good reason or because of misconduct, and failing, without good reason, to apply for or accept a job; and lower level sanctions, as on p5, for failing, without good reason, to carry out a jobseeker’s direction, attend an interview, or take up a training place. As now, claimants who fail to be available for work or actively seek work will not be entitled to JSA, but if they reclaim JSA within 13 weeks, they can be sanctioned for up to a further three weeks (or 12 weeks after a second disentitlement
  • Jobseekers can be made to undertake mandatory work activity (four weeks’ unpaid work) and the government is also planning to introduce compulsory community work (for at least 26 weeks) for claimants who have spent more than two years on the Work Programme.
  • Hardship payments may be recoverable.
ESA
  • Claimants will normally have to accept a claimant commitment as a condition of entitlement.
  • The amount of sanction for failing to undertake required work-related activity without good cause may be increased to the equivalent of the basic standard allowance (currently £67.50).
IS
  • Claimants will normally have to accept a claimant commitment as a condition of entitlement.
  • Couples with one partner who is able to work may no longer be able to claim IS, but will have to claim JSA instead and will be subject to conditionality.
Comment

The escalation of conditionality appears to be an unstoppable bandwagon. Despite its perceived popularity, however, there are serious concerns about its effectiveness and impact on vulnerable claimants. At times, the case for conditionality takes on the appearance of a moral crusade, rather than being evidence-based. In fact, the evidence from the UK and elsewhere on its effectiveness in getting claimants into sustainable employment is, at best, equivocal. The introduction of ‘in-work conditionality’ and the new sanctions regime will also introduce more complexity into the system.

There are also concerns that some vulnerable claimants, including those with mental health problems, could face repeated and lengthy sanctions and that personal advisers, working within a culture of ‘payment by results’, will have too much power and discretion to impose inappropriate requirements on claimants, which will be difficult to challenge.

CPAG believes that personalised support is the most effective way of helping and encouraging claimants to enter work, and that there should be more ‘carrot’ and less ‘stick’.

 


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