Regime change: sanctions and the law on claimants

Issue 230 (October 2012)

Edward Graham explains the main features of the new rules that come into force on 22 October 2012 changing the sanctions regime for jobseeker’s allowance (JSA) claimants.

Most JSA sanctions are laid out in section 19 of the Jobseekers Act 1995. Some sanctions can be applied for a period of between one and 26 weeks – eg, for leaving a job voluntarily. There is also a range of fixed-period sanctions from two to 26 weeks for other training/employment scheme offences or for failing to carry out a jobseeker’s direction, and sanctions relating to mandatory work activity and the Work Programme. All these are being replaced by the new regime.

Section 46 of the Welfare Reform Act 2012 provides for the complete reform of the sanctions regime for JSA by creating a new section 19 of the Jobseekers Act, along with an additional section 19A, 19B and 19C. The details of the new sanctions regime are contained in the Draft Jobseeker’s Allowance (Sanctions)(Amendment) Regulations 2012. They make a number of changes to the Jobseeker’s Allowance Regulations 1996.

Note: the rules regarding the labour market conditions themselves (ie, being available for and actively seeking work) are not changing. It is the sanctions imposed as a consequence of failing to meet the conditions that are changing.1Claimants will still be able to argue their actions are justified, ‘good reason’ replacing just cause and good cause (see below), and hardship payments will still be available.

The new regime has fixed sanctions, which escalate for repeated failures. The escalation only applies to repeated failures under the same section of the Act. Note also that for joint claim couples, the repeated failures must be by the same member of the couple for the escalation to apply.

Section 19: ‘higher level sanctions’

The new regime provides for sanctions in three different situations. The first is what are called ‘higher level sanctions’, where the claimant fails to comply with the labour market and employment-related conditions laid out in section 19 of the Jobseekers Act, where s/he:2

  • loses employment through misconduct;
  • leaves work voluntarily;
  • refuses to take up or apply for a job notified by the DWP;
  • neglects to avail her/himself of a reason-able chance of a job;
  • fails to participate in a prescribed course.

A series of escalating sanctions will apply:3

  • 13 weeks for the first failure;
  • 26 weeks for a second failure, within 52 weeks of a previous failure;
  • three years for a third failure, within 52 weeks of the most recent failure.

For all of the above, failures to comply that occur within two weeks of the ‘current sanction able failure’ will not result in an additional or escalating sanction. This is to avoid claimants losing benefit for three years due to circumstances or actions within a very short period of time.

Where the failure relates to a period before the JSA claim, and is due to losing a job through misconduct, leaving a job voluntarily or neglecting to avail her/himself of a job, further rules apply. That failure, while attracting a sanction, does not count as a failure for the purpose of escalation – ie, determining the length of any subsequent sanctions.4Time between the failure to comply and the claim for JSA will also reduce the period of the sanction.5 Finally, where the employment itself was limited in length (ie, a fixed-term contract), the sanction period will end when the employment would have ended, if this is sooner than the sanction would otherwise be due to end.

Example 1

A claimant is notified of a vacancy by Jobcentre Plus and told to apply for it. The claimant fails to do so. As it is a first failure, the appropriate sanction is 13 weeks. At her/his next signing on date a week later s/he is told to apply for this job again as well as a further job. S/he refuses, but as this is within two weeks of the current failure s/he is being sanctioned for, no further sanction is applied. Six months later, the claimant is instructed to undertake mandatory work activity (a prescribed course for these sanctions) but refuses to do so. The 26-week sanction can be applied is it is within 52 weeks of the previous failure.

Example 2

A claimant is sanctioned for 13 weeks because it is decided that before her/his JSA claim, s/he had resigned from her/his job for no good reason. S/he claimed JSA four weeks after leaving the job, so the sanction period for the JSA claim is nine weeks. Six months later s/he is given details of a job to apply for by Jobcentre Plus but refuses to do so. A further 13-week sanction is applied. The 26-week sanction cannot be applied in this situation as the first failure does not count towards the escalation of sanctions.

Section 19A: ‘other sanctions’

The second set of sanctions are applied to claimants who fail to meet the conditions in Section 19A of the Jobseekers Act. These in-clude where the claimant :

  • fails to sign on as required;
  • fails to attend an interview at DWP when notified to do so;
  • fails to participate in a prescribed course;
  • fails to carry out a reasonable jobseeker’s direction;
  • fails to take up a training scheme or employment programme when notified, gives up a place on such a course or pro-gramme without good reason, or loses a place on such a course or programme due to misconduct.

Again the sanctions applied can escalate due to repeated failures. The sanctions are:6

  • four weeks for a first failure;
  • 13 weeks for a second failure, within 52 weeks of a previous failure.

Failures within two weeks of the failure that resulted in the current sanction being applied do not result in additional or escalating sanctions.

Example 3

A claimant is currently within a 13-week sanction period of a higher level sanction under section 19 for failing to apply for a notified vacancy. S/he is given notification to attend Jobcentre Plus on a day other than her/his normal signing-on day, but doesn’t attend. As this is the first failure under section 19A, a four-week sanction to run concurrently (overlap) with the section 19 sanction is applied (sanctions under section 19A do not count towards the escalation of sanctions under Section 19, or vice versa). Four months later s/he is instructed to attend a week-long course to improve her/his computer skills, but s/he doesn’t complete the course as it is too basic. As this is a further failure under section 19A within 52 weeks of a previous one, the 13-week sanction is applied.

Section 19B: reclaiming after disentitlement

The final set of sanctions are completely new, and provided for by section 19B of the Jobseekers Act. They will apply where a previous claim for JSA was terminated following a decision that the claimant was not available for, or actively seeking, work and s/he subse-quently reclaims JSA.

The sanction period will be:7

  • four weeks for the first claim after termination;
  • 13 weeks where it is the second (or more) claim after termination and the most recent termination was less than 52 weeks ago.

As with the other sanctions, repeat offences within two weeks of the current sanctionable failure are ignored. Weeks the claimant was not paid JSA, either between the two claims or because s/he received no payment as s/he failed to met the jobseeking conditions, count towards the sanction period

However, a sanction cannot be applied to claimants whose claim had been terminated because:8

  • they had been treated as either available for work under regulation 14 of the JSA Regulations, or as actively seeking work under regulation 19;
  • they could no longer be so treated; and
  • the Secretary of State considers ‘that a reduction is not appropriate’.

The explanatory memorandum gives an example of where a sanction will not be applied as where a claimant has exhausted the period of time s/he can be treated as available for work while dealing with a domestic emergency, but s/he is still unavailable for work as s/he requires more time to deal with the emergency, and the JSA claim is terminated.9

Example 4

At her/his fortnightly signing on a claimant fails to satisfy the DWP that s/he has been actively seeking work over the past two weeks. The claim for JSA is terminated as the basic conditions of entitlement are no longer met, and the claimant receives no further payments of JSA. In addition, a four-week sanction is applied. Two weeks later the claimant makes a new claim for JSA. The two weeks prior to the termination of her/his previous claim for which s/he was not paid, JSA is included in the four-week sanction period, as is the further two weeks s/he waited before making a new claim. S/he can be paid JSA straight away.

Sanctions and hardship payments

The amount of the sanction for all three type of sanctions is the same: 100 per cent.10 This is the same as currently exists and means that a single claimant or couple will get no JSA. For joint-claim couples, if both are sanctioned no JSA is payable. If only one is sanctioned, the other member will get the personal allowance (subject to the normal means test if incapacity benefit or JSA), or the level of hardship payment s/he would get if eligible. All claimants will still be able to apply for hardship payments under the rules that currently exist, and hardship payments will be re-extended to those sanctioned in relation to the Employment, Skills and Enterprise Scheme 11(the Work Programme and other related schemes, see p471 of CPAG’s Welfare Benefits and Tax Credits Handbook). Sanctions that have not expired when a JSA claim ends will restart when a new claim is made, unless the claimant has worked for a period of six months.12

Good reason

Any of the above sanctions can only be applied to a claimant if s/he acted ‘without good reason’. Good reason is not defined, nor does it have prescribed circumstances which must be taken into account when considering whether it applies.13The DWP states that it ‘will apply in the same way’ 14as good cause and just cause, but given that good cause and just cause have been found to mean slightly different things, it is not entirely clear what the DWP statement means, but previous caselaw on good cause should still be relevant. What is clear is that the removal of matters that must be considered by a decision maker is an attempt to introduce wider discretion into decision making. Claimants will still have a right of appeal, which will operate as previously, against the imposition of a sanction.

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. s49 WRA 2012 provides for the current rules to be replaced by the UC regime, and this will happen at some point in the future.
  • 2. s19 Jobseekers Act as inserted via s46 Welfare Reform Act
  • 3. Reg 69(1) JSA Regulations 1996
  • 4. Reg 69(3) JSA Regs
  • 5. Reg 69(4)(a) JSA Regs
  • 6. Reg 69(4)(a) JSA Regs
  • 7. Reg 69B(6) JSA Regs
  • 8. Reg 69B (5) JSA Regs
  • 9. Explanatory Memorandum para 7.19
  • 10. Reg 70 JSA Regs
  • 11. Reg 140 JSA Regs
  • 12. 70C (4) Jobseekers Act 1995
  • 13. Regs 72, 73 and 73A of the JSA Regs are revoked and replaced by a new reg 72. This prescribes only that claimant cannot be regarded as having good reason if excessive travel time is the reason for not undertaking a jobseeker’s direction or applying for a job.
  • 14. Explanatory Memorandum para 7.18