JSA and ‘actively seeking work’ sanctions

Issue 246 (June 2015)

David Simmons examines the issue of jobseeker’s allowance (JSA) sanctions for alleged failures to ‘actively seek employment’.

Introduction

One of the conditions of entitlement to ‘old style’ JSA (ie, outside the universal credit system) is that a claimant is ‘actively seeking employment’.1 No JSA is payable unless this condition is satisfied. In addition, if a claimant reclaims JSA within 13 weeks, a sanction of four weeks’ loss of JSA (13 weeks if there has already been such a four-week sanction in the previous 52 weeks) can be imposed.2The rules are set out on pages 1123-24 of CPAG’s Welfare Benefits and Tax Credits Handbook 2015/16 (‘the Handbook’). Note that any period after the 13 weeks cannot be subject to a sanction and the period of the sanction is reduced by the previous period of non-entitlement to JSA.

The latest official statistics show that from October 2012, when ‘actively seeking work’ (ASW) sanctions were first introduced, to December 2014, more than 557,500 ASW sanctions were imposed on JSA claimants out of a total 1,663,000 JSA sanctions. In other words, around a third of all JSA sanctions were for ASW failures.3 A recent report from the Parliamentary Work and Pensions Committee expressed concern about the continuing high level of JSA sanctions and called for an urgent review of the ‘claimant commitment’, which provides much of the evidence for ASW sanctions (see below).4

Actively seeking work

The key points in determining whether a claimant is ASW are as follows.

Section 7(1) of the Jobseekers Act 1995 states that a claimant is ASW in any week if s/he ‘takes in that week such steps as s/he can reasonably be expected to have to take in order to have the best prospect of securing employment’. The test is, therefore, what the claimant does, rather than does not do, in a particular week, and whether this is reasonable, taking into account all the relevant circumstances.5

  • The regulations require a claimant to take more than two steps in a week, unless taking fewer steps is reasonable.6 This could mean that it is reasonable to take no steps, or three or more steps, in a particular week.7
  • The regulations list the steps a person might be expected to take, but they are only examples and are not exhaustive.8 They include applying for jobs, contacting potential employers, registering with an employment agency and drawing up a CV (see p1063 of the Handbook). The examples indicate the type of steps required, but regard must be had to any other steps taken to try to secure employment. Note that each action should constitute a separate step – eg, writing to three employers in a week counts as three steps, while checking online or newspaper vacancies every day could count as seven steps in a week.9
  • The regulations require all relevant circumstances to be taken into account when deciding whether a claimant has taken reasonable steps in a particular week, including her/his skills, qualifications, abilities, physical or mental limitations, length of unemployment, work experience and the availability and location of job vacancies (see pp1063-64 of the Handbook).10 Steps which include abusive or violent behaviour, or where the claimant’s behaviour or appearance undermines a prospect of employment, must be disregarded.11
  • Whether a claimant has completed some or all of the steps s/he has agreed to take in her/his jobseeker’s agreement (now called the ‘claimant commitment’) is clearly relevant, but is not conclusive of whether s/he is ASW in a particular week. This was made clear in paragraph 15 of CJSA/1814/2007, which held that if the steps taken by a claimant were sufficient to satisfy the test set out in section 7(1) (see above), ‘it is irrelevant that the claimant did not also take some other step, whether or not it is in the jobseeker’s agreement’. Despite this, claimants are regularly sanctioned for failing to complete all the steps in their claimant commitment on a weekly basis.
  • Claimants are regularly required to show that they are ASW at their regular ‘signing on’ interviews with a ‘work coach’ at the jobcentre. Claimants on the government’s ‘Work Programme’ may be mandated to apply for particular job vacancies or take other steps to seek employment.
  • In certain circumstances, claimants can be ‘treated as’ ASW even when not doing so (see pp1065-66 of the Handbook and note the special rules during a ‘permitted period’).

Avoiding sanctions

If claimants understand the rules, they are clearly less likely to fall foul of them. It is always worth checking whether a claimant could be treated as ASW for any period (see above) and, if so, informing her/his work coach. It is clearly vital for claimants to take sufficient steps, taking into account all the factors referred to above, and keep detailed records of all their activities on a weekly basis (they may be given a ‘work plan booklet’ WS1 for this purpose). If they are mandated to undertake a particular activity by a Work Programme provider, it is important that they do so, or discuss with their personal adviser why they are unable, or it is inappropriate, to do so.

When drawing up their ‘claimant commitment’ at an initial JSA interview, it is clearly important for claimants to agree to undertake sufficient steps to show they are ASW, but it is also important for them to be realistic and not agree to activities which they are unlikely to be able to carry out on a weekly basis. They should also ensure that they fully explain their circumstances, abilities and limitations to ensure the agreed steps are reasonable and appropriate. If their circumstances change, or it becomes apparent that the steps in the claimant commitment are unrealistic or inappropriate, claimants should notify their work coach and seek a variation of the claimant commitment

Further details on how to avoid ASW sanctions can be found on the Ask CPAG online section

Challenging sanctions

A sanction can be challenged by requesting a mandatory reconsideration and then, if necessary, appealing to the First-tier Tribunal.

It is always worth checking whether a claimant should have been treated as ASW during any of the relevant period. Where, as is commonly the case, a sanction has been imposed for a failure to carry out all the steps set out in the claimant commitment, the caselaw in CJSA/1814/2007 may be relevant (including the point about the test being about what the claimant did, rather than did not do). In all cases, it will be necessary to provide detailed evidence of the steps the claimant undertook to actively seek employment in the relevant weeks – ie, the weeks prior to the decision to terminate her/his entitlement to JSA. It is then a matter of arguing that such steps were reasonable and sufficient to give the claimant the best prospect of securing employment, in accordance with the test set out section 7(1).

Further details on how to challenge ASW sanctions can be found on the Ask CPAG online section of the CPAG website.


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