Sanction busting – part 2
Martin Williams highlights the practical steps that can now be taken to assist claimants who were sanctioned to file (late) appeals and the sheer volume of unlawful sanction decisions which it appears have been made.
In Bulletin 229, we discussed some of the issues involved in appealing against sanctions in jobseeker’s allowance (JSA) cases for failure to participate in the Work Programme. The article set out the general tests that the decision maker had to show were met in order to impose a sanction and discussed the sort of arguments that could arise in challenges to decisions imposing sanctions. Since then, the sanction regime has changed (see Bulletin 230, p8). This article is mainly directed at cases where the claimant was sanctioned under the old regime (prior to 22 October 2012).
Thanks to claimant activists, it is now possible to provide some more explicit advice which may be of assistance to any JSA claimant who was sanctioned for failing to participate in the Work Programme. A freedom of information request has revealed the standard letters that were used to inform claimants that they must participate in the Work Programme. Copies of these letters are available on the CPAG website linked to this article. Slightly different letters have been used at various times. However, in explaining to JSA claimants the consequences of failing to take part in the Work Programme, all of them use the same wording:
If you fail to take part in the Work Programme without a good reason, your jobseeker’s allowance could stop for up to 26 weeks. You could also lose your national insurance credits.
For the reasons explained below, the current state of the law is that this wording is not adequate to allow a sanction to be imposed when a claimant subsequently fails to participate in the Work Programme. All claimants who have been sanctioned following receipt of such a letter should be advised to submit a (late) appeal if within the maximum time limit (13 months from date of sanction decision), or to seek an official error revision. It appears that tens of thousands of such claimants must have been sanctioned unlawfully: 46,650 sanctions were imposed for failure to participate in the period up to 30 April 2012.1
What is wrong with the letters
Up until 22 October 2012, the Work Programme sanction regime was entirely contained in the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 No.917. A series of sanctions of increasing length could be imposed for repeat failures to participate in the Work Programme within a 52-week period (two weeks, four weeks and, finally, 26 weeks).
In particular, these regulations provided that a claimant had to be notified about the requirement to participate in the Work Programme:
Requirement to participate and notification
4. (1) Subject to regulation 5, a claimant
(‘C’) selected under regulation 3 is required to participate in the Scheme where the Secretary of State gives C a notice in writing complying with paragraph (2).
(2) The notice must specify—
(e) information about the consequences of failing to participate in the Scheme.
The regulations go on to provide for a sanction to be imposed for failure to comply with a duly notified requirement (regulations 6 and 8). In the case of R (Reilly and Wilson) v SSWP  EWHC 2292 (Admin), the High Court held that wording similar to the wording in what appears to be the standard wording in all the letters sent to claimants, warning Mr Wilson of the requirement to participate in the Work Programme (in his case the Community Action Programme strand of that scheme) was not compliant with regulation 4. The judge highlighted that what was wrong with the wording of the letter was that it said JSA ‘may be stopped’ for ‘up to 26 weeks’. It should have explained instead how long a sanction would actually result, and that the sanction was mandatory unless the claimant had a good reason for failure to participate. He said:
119. In my judgment, the initial letter to Mr Wilson did not in the respect I have identified meet that obligation. I do not think it is fair, sufficient or accurate to tell someone who could only at that stage be sanctioned for 2 weeks that he or she could be sanctioned for ‘up to 26 weeks’. The letter should spell out that, having failed without good cause to participate in the CAP on one occasion, the sanction if a sanction was applied would be one of 2 weeks’ loss of benefit and that thereafter the period would increase with further separate failures to participate. I emphasise the underlined words because the words used in the letter received by Mr Wilson were that his benefits ‘may be stopped’, perhaps conveying the impression that sanctions are not necessarily automatic. However, it seems to me that the clear intention of the Regulations is that the sanctions are mandatory. This conclusion is derived from the words in Regulation 8(1) which state that ‘the appropriate consequence for the purpose of section 17A of the Act is as follows’ (my emphasis) once it has been decided that no good cause for the failure to participate in the scheme has been demonstrated. If that is the correct interpretation of the Regulations (and I do not think Mr Nicholls has suggested to the contrary and neither does Mr Walsh’s second witness statement), then the letter ought, in my view, to be more explicit in this respect. (I might add also that the passage in the letter dealing with the appeal process, whilst arguably accurate as it stands, might be made more clear and open given what has been said by the Department concerning the wide ambit of the appeal process: see paragraph 155 below.)
The judge went on to hold that this failure meant that the sanction under reg 6 could not lawfully be imposed:
161. My conclusion, of course, is that it is only in respect of the sanction consequences of non-participation in the CAP that there was non-compliance with Regulation 4 in Mr Wilson’s case. He did not participate and, accordingly, the only issue would have been one of whether the sanctions fell away as a result. Whilst the issue is now academic, the answer to my mind is plainly that there could be no question of sanctions being validly imposed if no proper notice of the sanction consequences was given. I do not think that Mr Nicholls suggests otherwise. Whilst it is not, strictly speaking, a matter for me, I would have anticipated that the First-tier Tribunal would have allowed Mr Wilson’s appeal if it had arrived at the same conclusion as the conclusion I have arrived at concerning the adequacy of the notice he was given.
What should claimants do
If a claimant has been sanctioned for failing to participate in the Work Programme and the letter telling her/him what s/he had to do so was defective as outlined above (and it appears that the standard letter was defective), then s/he should file an appeal against the sanction decision.
The normal time limit for an appeal is that it must be received by the DWP within one month of the decision being sent to the claimant. However, the First-tier Tribunal can extend the time limit by a maximum of 12 months where it is ‘fair and just’ to do so (see rule 2, 5(3)(a) and 23(8) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 SI No.2685).
Given the decision of the High Court in Reilly and Wilson, it must be the case that such appeals have strong prospects of success. The strength of the appeal on its face is a factor which should be taken into account by the tribunal when it considers whether it is ‘just’ to extend the time limit (when a decision appears to be plainly wrong, then this is a factor which weighs in favour of extending time).
Furthermore, because of the way in which the Reilly and Wilson case came about, it does not appear that such cases can possibly be caught by the anti-test case rules. Those provisions only apply where a ‘relevant determination’ is made on appeal to the Upper Tribunal or by a court dealing with an appeal from the Upper Tribunal (see section 27 of the Social Security Act 1998). The Reilly and Wilson judgment was given by the High Court in a judicial review. Although there may be an appeal against the decision of the High Court in Reilly and Wilson, it also appears to be the case that the Secretary of State does not have any power to order the hearing of such appeals to be stayed pending that appeal (sections 25 and 26 of the Social Security Act 1998 only affect matters where an appeal is pending to the Upper Tribunal or from the Upper Tribunal and not when an appeal is pending in a case brought by way of judicial review).
A sample notice of appeal for use in such cases is also provided on the panel on the right.
People sanctioned after 22 October 2012
The Jobseeker’s Allowance (Sanctions) (Amendment) Regulations 2012 No.2568 fundamentally change the sanction regime from 22 October 2012 (see Bulletin 229, p8). However, those changes leave intact the definition of a failure to participate in the Work Programme – ie, such a failure can still only occur when a claimant has been properly notified of a requirement to participate, which still includes explaining the length of sanction that will result. Claimants who have received a letter notifying them of the older sanction lengths (rather than the new fixed-period scheme) may have an argument that this cannot serve as adequate notification for an alleged failure that takes place after that date. However, it is not possible to give as detailed advice for such claimants as it is for those sanctioned under the old regime. The message to advisers remains that careful attention should always be paid to exactly what claimants have been told to do and what the consequences of failure are to be. As Reilly and Wilson shows, the Courts are willing to strictly construe the requirements that the decision maker must meet before a punitive sanction can be imposed.
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.