Labour market conditions and jobseeker’s allowance
Beth Lakhani and Edward Graham examine the labour market conditions for jobseeker’s allowance (JSA), when and how the requirement to be actively seeking work and available for work applies and what flexibilities are built into the rules.1
Although primarily designed as a benefit for able-bodied claimants who are unemployed and looking for work, a number of changes have taken place in the last few years which mean more groups of people have to claim JSA. For example:
- most lone parents with a youngest child aged seven or over have to claim JSA, and the government proposes to extend this requirement to those where the youngest child is five provided s/he is in school;
- people with health problems who cannot meet the test of limited capability for work for employment and support allowance (ESA) will have to claim JSA. The transfer of claimants from incapacity benefit (IB) and income support (IS) to ESA will result in many more claimants failing the work capability assessment and having to move onto JSA.
The Regulations dealing with JSA have always made provisions for claimants who are sick or disabled, and for those with caring responsibilities, so both of the above groups can take advantage of these flexibilities in the labour market conditions.
Note also that for ‘joint-claim couples’ of income-based JSA, both members of the couple will normally have to meet labour market conditions. See CPAG’s Welfare Beneﬁts and Tax Credit Handbook, p381 for more details.
The labour market conditions
These require the claimant to:
- be available for work as agreed;
- be actively seeking work as agreed;
- have a current jobseeker’s agreement which reflects the availability and actively seeking work conditions imposed or negotiated.
It is important to note that these are conditions of entitlement. If the claimant fails to meet them, s/he will not be entitled to benefit rather than be subject to a sanction. At the point of claim, if a person fails to satisfy these conditions, s/he will not receive benefit; if there is doubt about her/his continuing entitlement, her/his benefit is suspended. S/he may then have to claim hardship payments.
Availability for work
This is broken down into a number of tests:2
- willing; and
- to take up employed earner’s employment.
Being willing is a test of the desire and attitude to work, normally assessed via the ‘actively seeking’ rules.
Being able means that the claimant is able to take up work in the UK – eg, if a claimant’s immigration status prevents her/him from working, s/he cannot be available for work.
Immediately means s/he can act on the offer of a job straight away – a claimant cannot do this if s/he is away from home and there Is no way for Jobcentre Plus to make contact.
The final requirement means that the claimant will take up any employment, so s/he cannot restrict her/himself to self-employed work. It also means that, in theory, the claimant has to be able to do any job for up to 40 hours in any part of the country.
The right to restrict availability
Clearly it would be completely unreasonable to expect claimants to take up employment at the other end of the country at less than a day’s notice, so the rules allow claimants to put a number of restrictions on their availability.
However, usually a person will still have to be available for work in such a way that s/he has reasonable prospects of getting a job. Crucially there are some exceptions to this last requirement and the ways in which availability can be restricted is extensive.
Those claimants with a ‘usual occupation’ are allowed a permitted period of up to 13 weeks when they can restrict their availability to the work they usually do and at levels of pay they would normally receive.3However, a usual occupation is not defined and only those with recent and/or longstanding work or training in a particular occupation are likely to be able to agree such a restriction with the DWP. It will not help claimants who have no recent job experience.
Claimants with health problems
A claimant can impose restrictions relating to hours available, pattern of work, type of activity, terms and conditions and location as long as the restrictions are reasonable in the light of their physical or mental condition. It does not matter that these may leave the claimant with no reasonable prospects of employment.4 If, however, s/he then goes on to impose other restrictions, the reasonable prospects test will apply in the light of all the restrictions. Actively seeking work steps must also take account of the claimant’s health when assessing the appropriate nature of the steps s/he takes to seek work.
There have always been disabled people who have chosen to claim JSA, but the numbers are likely to be swelled by the many thousands of claimants forced onto JSA by the migration (or reassessment as the DWP calls it) from IB to ESA that is currently underway. It is vital that such claimants are aware of their rights to restrict availability, and that the DWP applies the law correctly to enable such claimants to maintain JSA claims without fear of having unrealistic demands placed upon them regarding looking for work.
Claimants with ‘caring responsibilities’ for an adult or child under 16
Caring responsibilities mean looking after a person who is member of the household or a close relative and who is either a child under 16, someone over pension age, or someone who needs care because of her/his mental of physical condition.5Included in this group will be lone parents unable to claim IS, members of couples with children who will in future have to be available for work and carers who cannot qualify for carer’s allowance.
Claimants with caring responsibilities are only required to be available for work within one week, and to be available for an interview within 48 hours. Those with responsibilities for children, who can show it would be unreasonable (arranging childcare an obvious example) to expect them to take up a job within a week, only need be available at 28 days’ notice, to take up a job and similarly to attend an interview at a week’s notice.6
A claimant with caring responsibilities does not have to be available for up to 40 hours work, as long as they are available for as many hours as their caring responsibilities allow (and for at least 16 hours) and still have a reasonable prospect of securing employment. The reasonable prospects test will not apply to those with responsibilities for children where the number and type of vacancies within travelling distance of the claimant’s home mean s/he would not have such prospects.
Lone parents with a child under 13 can also restrict their availability to their child’s normal school hours. School hours here continue during the holidays, which could cause problems unless the lone parent can be treated as available during the holidays (see below).
Claimants can place restrictions on the type of work, location, hours, days and pattern of working, terms and conditions of employment including the rate of pay (first six months only). However, they will have to be able to show they have a reasonable prospect of gaining employment despite those restrictions. Normally a person must be available from Monday to Friday but claimants can agree different patterns of availability. But if they are not available on one of their agreed days, they will treated as if they were not available for the whole week. Types of work can be limited accordingly to take account of religious belief, or where it would be contrary to a person’s conscience.
Claimants doing voluntary work only have to be available at a week’s notice, and those providing paid or unpaid services at 24 hours’ notice – ie, those who are looking after another person but who don’t meet the criteria of caring responsibilities above. Claimants in paid part-time work must be available immediately after the expiry of the period of notice they must give to leave that job and take up full-time work.
Unless otherwise stated, if a claimant places restrictions on availability, s/he must still have a reasonable prospect of securing employment.7It is the cumulative impact of restrictions that count and the DWP must consider:
- the person’s skills, qualifications and experience;
- the type and number of job vacancies within daily travelling distance;
- the length of time the person has been unemployed, plus the job applications made and outcome (difficult to evaluate during a recession);
- whether the person is willing to move home to take up the job – a flexibility less available to lone parents and those with disabilities or anyone with a family, unless they are willing to live apart for the working week.
Actively seeking work
This is essentially a practical test of the claimant’s active search for work and should obviously be consistent with any availability restrictions agreed by claimants.
It requires a claimant to take such steps as s/he can be reasonably expected to have to take in order to have reasonable prospects of securing employment.8
A person is expected to take more than two steps a week, but it may not be possible to do this every week.
A ‘step’ can include, but is not limited to, making applications for jobs, getting information about jobs, preparing a CV and registering with an employment agency. It is crucial that claimants keep a record of the steps they have taken. It is also important to note that some steps can be ignored by the DWP – eg, if a claimant acts in an abusive manner at an interview, or spoils a job application form.
When deciding what steps are reasonable, the DWP must consider all the circumstances applicable to the claimant including:
- the person’s skills, qualifications and abilities;
- any physical or mental limitations the person has;
- the availability of vacancies;
- the circumstances that have resulted in the person being treated as available for work.
Treated as available for and actively seeking work
In many circumstances, claimants can be treated as available and/or actively seeking work (ie, not actually having to be available or taking any steps, but be treated as if they did), and so qualify for JSA.9 In most situations where a person is treated as available, s/he will also be treated as actively seeking work if the circumstances which allow her/him to be treated as available continue for at least three days in a particular week.10
Claimants with caring responsibilities can be treated as available in a variety of circumstances, including when they are:
- looking after a child for whom they have caring responsibilities during the child’s school holidays and it would be unreasonable for them to make other arrangements for the care of that child. This deals in particular with gaps in provision of childcare which may make it impossible for the adult to seek work;
- temporarily looking after a child full time because the person who normally looks after the child is ill, temporarily away from home, or themselves looking after a member of his/her family who is ill. This applies for a maximum of eight weeks;
- temporarily absent from Great Britain because they are taking their child abroad for treatment. This is for a maximum of eight weeks;
- a member of a couple who is looking after her/his child while her/his partner is temporarily absent from the UK, for a maximum of eight weeks;
- looking after a child for whom they have caring responsibilities at a time when that child is excluded from school, as long as the child is not getting alternative provision from the local authority, and there are no other arrangements that could reasonably be made. Such a claimant is treated as available for work but not necessarily as actively seeking work (a mismatch in the rules).
There are also some very limited circumstances in which claimants who are studying full time, attending court, in prison, or providing assistance during an emergency can be treated as available for work. A claimant who is temporarily away from home can be treated as actively seeking work for two weeks a year, but s/he must still be available for work.11This can be used, for example, by someone having a holiday within Great Britain.
Claimants who are temporarily away from Great Britain for up to two weeks getting hospital treatment, or who are sick, can be treated as available for two periods of two weeks a year, as long as they make a declaration and can provide some proof that they were sick. This will not apply to claimants who are sick and who were entitled to ESA in the preceding
12 weeks, or IS as sick, IB, severe disablement allowance or statutory sick pay in the preceding eight weeks.12
The rules also allow some latitude for claimants who have to deal with:13
- the death or serious illness of a close relative or close friend;
- a domestic emergency affecting them or a close relative or friend;
- the funeral of a close relative or friend;
- the death of a person whom the claimant cared for.
The claimant is treated as available for up to a week and this is allowed on only four occasions in one year. This is a somewhat unrealistic limit and cannot be considered adequate where, as below, the domestic emergency may affect a family with a child.
Where the first two situations arise and they affect a claimant with caring responsibilities for a child, s/he can be treated as available for up to eight weeks, but this is allowed only once in a year (and this is counted as one for the four occasions). There is a strong argument that these provisions are insufficient where, for example, the death is that of the child’s father and it may require a much longer period of time before a mother could feel that it is safe to leave the child in childcare (however good the quality) because of the distress the death may have caused. Practical disruption to the ways of running the household will also take up time.
The jobseeker’s agreement
The final part of the labour market conditions is that the claimant has a current jobseeker’s agreement in which her/his restrictions on availability are listed and which demonstrates that, despite those restrictions, the claimant is available for and actively seeking work.14
If a claimant has a dispute about a jobseeker’s agreement at the start of a JSA claim (eg, the DWP officer will not accept some of the restrictions s/he wishes to place), it is advisable that the claimant signs an agreement s/he is unhappy with rather than refuse to sign it at all. If s/he refuses to sign it, s/he will not have a valid agreement and will not be entitled to JSA (although s/he can appeal this decision). If s/he signs and then asks for it to be varied, any dispute can be referred to a decision maker and a negative decision can be appealed. At least s/he will receive JSA while pursuing the appeal.
Note that the following restrictions do not have to be in a jobseeker’s agreement:
- lone parents with children under 13, allowing hours to be restricted to school hours;
- carers who have to restrict their hours to reflect their caring responsibilities;
- restrictions on availability being allowed as reasonable because of the physical or mental condition of the claimant under reg 13 of the JSA Regulations.
There is no doubt that the JSA labour market conditions are very strict and could place considerable pressure on new groups of claimants, such as lone parents and those with health problems. However, flexibilities do exist and such claimants should be advised by the DWP accordingly where the flexibilities are appropriate to their individual circumstances.
It is as yet unclear how the proposed introduction of universal credit, and the claimant commitment that will precede it, will affect the detailed rules about availability for and actively seeking work that are a core component of JSA. In the meantime, these rules will continue to impact upon an increasing number of potentially vulnerable claimants. For example, the DWP is consulting on whether claimants threatened with domestic violence or experiencing actual violence (including psychological threats or abuse) should be treated as available for a period of up to 13 weeks, which could be extended if the claimant is still in danger. This would be in addition to the existing domestic emergencies provision and is a result of a parliamentary commitment to address the issue during the passage of the Welfare Reform Act 2009.
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. For a complete list of all the rules, see p404 of CPAG’s Welfare Benefits and Tax Credits Handbook
- 2. s6 Jobseekers Act 1995
- 3. Reg 16 JSA Regs
- 4. Reg 13(3) JSA Regs
- 5. Reg 4 JSA Regs
- 6. Reg 5 JSA Regs
- 7. Reg 10 JSA Regs
- 8. s7 Jobseekers Act 1995
- 9. Reg 14 JSA Regs
- 10. Reg 19 JSA Regs
- 11. Reg 19 JSA Regs
- 12. Regs 55 and 55A JSA Regs
- 13. Reg 14 JSA Regs
- 14. s1(2)(b) Jobseekers Act 1995