2 The Oakley Review |
11. The Oakley Review was a requirement of the Jobseekers
(Back to Work Schemes) Act 2013. This was emergency legislation
introduced by the Government to validate retrospectively JSA sanctions
in relation to a range of mandatory schemes, which had been introduced
under the Jobseeker's Allowance (Employment, Skills and Enterprise
Scheme) Regulations 2011. The Court of Appeal's judgment in Reilly
and Wilson v Secretary of State for Work and Pensions had
ruled that the 2011 Regulations were unlawful because they did
not provide sufficient information about the schemes, and DWP's
letters to claimants did not provide sufficient information on
claimants' obligations under the schemes, or the circumstances
in which sanctions could be applied.
12. Matthew Oakley was asked by the Government to
review the clarity of DWP's information and communications about
sanctions in relation to the nine schemes covered by the 2013
Act. In practice, around 90% of the sanctions considered by the
review were related to the Work Programme, the Government's mainstream
contracted employment programme, which was introduced in June
The JSA sanctioning process
13. Decisions on whether to sanction a claimant are
not made by the JCP Work Coach (or the employment adviser working
for a contracted scheme provider). Where the Work Coach/adviser
believes that the claimant has not fulfilled a mandatory requirement,
a "doubt" can be raised and referred to a Decision Maker
(a "sanction referral"). The Decision Maker is another
DWP employee, detached from the employment support process, who
makes a decision on whether to apply the sanction, based on the
evidence provided. Decision Makers attempt to obtain evidence
from the claimant, as well as from the Work Coach/adviser, and
make their decisions on the "balance of probabilities".
14. Decisions fall into one of four categories: adverse
(the claimant is sanctioned); non-adverse (the claimant is not
sanctioned); reserved (the claimant is no longer on benefit so
cannot be sanctioned, but the sanction would have applied had
they remained on benefit); or cancelled (no sanction is applied,
as insufficient or incorrect information was provided, or was
not provided in a timely manner, or the referral was made in error).
15. JSA sanctions should not be applied where the
claimant can show "good reason" for not fulfilling the
mandatory requirement in question. The relevant guidance for Decision
Makers lists a number of circumstances, including illness and
family bereavement, which can be considered to constitute good
reason, but these are not defined in legislation.
16. If sanctioned claimants believe that they should
not have been sanctioned, they can first ask the Department to
review its decision. If the decision remains unchanged following
a review, and the claimant remains dissatisfied with the decision,
the claimant can request a formal reconsideration of the decision.
If, once the Department has formally reconsidered its decision
and decided not to overturn it, the claimant still believes the
decision was wrong, the claimant has the right to appeal to a
Overview of the Oakley Review
17. Matthew Oakley found that the JSA sanctioning
system in relation to contracted Back to Work schemes was "not
fundamentally broken"; however, he identified very significant
flaws in the explanatory information about conditionality and
sanctions provided to claimants by DWP, and in the Department's
letters to claimants after a sanction referral has been made.
He concluded that improvements were required in a number of areas,
particularly in respect of "more vulnerable" claimants
who might struggle to understand their obligations or engage with
the process. He made 17 recommendations for change, all of which
were accepted, or "accepted in principle", by the Government
in its response to the review.
18. Mr Oakley acknowledged in his report that some
of his recommendations would be "relatively easy for the
Department to implement", whereas others might take longer,
as they were likely to require legislative change and/or contractual
Specific Oakley recommendations
and Government action to date
Improving claimant letters and broader communication
19. The Oakley Review stated that:
[DWP's claimant] letters were, on the whole, found
to be complex and difficult to understand. Partly as a result
of the legal requirements the Department has to fulfil when it
writes to claimants, regular concerns were that letters:
overly long and legalistic in their tone and content;
· Lacked personalised
explanations of the reason for sanction referrals;
· Were not always
clear around the possibility of, and process surrounding, appeals
or application for hardship payments; and
· Were particularly
difficult for the most vulnerable claimants to understandmeaning
that the people potentially most in need of the hardship system
were the least likely to be able to access it.
A number of Mr Oakley's recommendations were aimed
at improving the clarity of DWP's letters to claimants at all
stages of the process, and thereby increasing claimants' understanding.
He recommended that the Department review its letters; in particular
that they should "give a personalised description of exactly
what the sanction referral or decision relates to and include
clear information about reconsideration, appeals and hardship."
He further recommended that DWP "work with experts in communication
and behavioural insights to test whether variations in the style
and content of letters could boost the proportion of claimants
who open and engage with the letters they have been sent."
20. In relation to broader information about the
JSA sanctions system, the Oakley Review recommended that the Department
publish, online and in hard copy, an "accessible guide"
to benefit sanctions, including information on the reconsideration,
appeals and hardship payment processes.
It also recommended DWP take specific action to identify and engage
with claimants "who might require third party support to
understand letters" and to help "vulnerable groups"
claim hardship payments.
It further recommended that claimants' preferred channel of communication
be routinely established and used.
21. The Department told us that it was in the process
of improving all sanctions-related communications; where appropriate
it was applying the Oakley Review's recommendations across JSA,
ESA and Universal Credit.
A new DWP Claimant Communication Unit had already been established;
the Department confirmed in December 2014 that this unit was working
with both internal and external experts to consider how "behavioural
insights" could be applied to maximise claimants' engagement
with sanctions communications.
DWP had also already published new sanctions fact-sheets for each
of the out-of-work benefits, which explain in plain English how
claimants can: avoid being referred for a sanction; challenge
a decision; and apply for hardship payments.
22. We welcome DWP's acceptance of the Oakley
Review's findings, and the steps that it has taken towards implementation
of the Review's recommendations. In particular, we welcome changes
made to improve the clarity of letters to claimants and to provide
clearer information on the benefit sanctions system to claimants
of all out-of-work benefits. We believe that a continued focus
on the clarity of sanctions-related communications and information
will go some way towards improving claimants' understanding of
their obligations and the sanctioning process. But we recognise
that communication and information is only one aspect of the sanctions
regime that needs to be addressed, and does not address concerns
about sanctions implementation and a target-driven culture.
DUAL RESPONSIBILITIES OF CLAIMANTS ON MANDATORY WORK
23. The Oakley Review identified a particular difficulty
which claimants had in understanding the requirements on which
their benefit payments were conditional, because they had dual
obligations to both JCP and their contracted provider while taking
part in mandatory schemes. Mr Oakley reported that a "recurring
theme" was that claimants "regularly receive conflicting
information from the Jobcentre and the Work Programme provider."
The review's recommendation was that:
The Department should work with providers to review
procedures to ensure that claimants on mandatory back to work
schemes have a clear understanding of their responsibilities to
both the provider and Jobcentre Plus.
24. Chris Hayes, DWP's Labour Market Strategy Director,
told us that DWP had improved its general guidance on dual responsibilities
and had published it on the GOV.UK website. There was now guidance
to Work Coaches to ensure that it was explained to claimants,
at the point of referral to a contracted provider, that they would
have dual responsibilities to comply with both JCP conditionality
and any "reasonable work-related activity that the provider
asks them to undertake."
25. The Employment Related Services Associated (ERSA),
the main trade body for contracted employment services providers
(including Work Programme providers), questioned the necessity
for all work-related activity in the Work Programme to be mandatory.
It reported that there was a "consensus view" amongst
contracted providers that "there are circumstances when mandating
a jobseeker either to a particular type of provision, or to an
activity within a provision, is likely to be inappropriate."
ERSA believed that this was particularly the case where the claimant
had a long-term health condition. It believed that, in general,
"the evidence base for the effectiveness of mandation is
weak", and that the appropriateness of claimants' mandatory
participation in the range of different activities involved in
contracted employment programmes should be carefully considered
in the design of future provision.
We note that the option remains for providers to exercise discretion
in choosing when to make an appointment mandatory.
CONTRACTED PROVIDERS' ABILITY TO ACCEPT "GOOD
26. The Oakley Review emphasised that a large proportion
of sanction referrals made by contracted providers were subsequently
cancelled or resulted in a non-adverse decision. Only 30% of these
referrals led to the claimant actually being sanctioned. The review
concluded that a "key driver" of this was contracted
providers' inability to accept claimants' good reasons for not
fulfilling mandatory conditions, "even if the claimant has
provided them with what would ordinarily count as good reason
in Jobcentre Plus." The review concluded that this situation
was a clear waste of administrative resources, and that it often
left claimants confused and feeling a "sense of injustice".
The review recommended that the situation be addressed through
revised guidance and/or legislation to give providers the legal
ability to accept good reason in certain circumstances.
27. Some witnesses were concerned that the Department
did not appear to have taken action to address this important
issue. Chris Hayes
told us that DWP had taken some steps to avoid providers making
inappropriate sanction referrals. It had issued a new form for
providers to fill in each time they make a referral, in which
they must tick a box to confirm that they have checked "whether
the claimant is in a vulnerable condition and therefore whether
they should have set the requirements they have set in the first
place." Providers were also advised to use Provider Direct,
a dedicated phone line to DWP, to check that they held the correct
address and other details for claimants, to avoid referrals being
made in error, for example where an appointment letter had been
sent to an incorrect address.
28. However, Mr Hayes told us that addressing the
central issue of providers' current inability to apply a greater
level of discretion and accept good reason would require both
amending Regulations and "contract renegotiation". The
Department would consider making the necessary changes in conjunction
with the renegotiation of Work Programme contracts.
We had understood that referrals under the current Work Programme
contracts would be made until 2016, when the contracts would be
re-let. The DWP witnesses
mentioned in oral evidence that the contracts had in fact already
just been "renegotiated". DWP later confirmed
that the Work Programme contracts had recently been extended for
12 months, from March 2016 to March 2017.
29. We accept that allowing contracted Work
Programme providers formally to accept "good reason"
for a claimant not fulfilling a benefit condition will require
both legislative change and contractual negotiations. However,
we believe that DWP should take more urgent steps to ensure that
a more common-sense approach is set out in guidance. We recommend
that DWP's guidance to contracted providers makes clear that discretion
can be applied where providers' staff are confident that a claimant's
failure to meet a mandatory condition was due to extenuating circumstances
beyond the claimant's control. We further recommend that negotiations
with Work Programme prime providers, ahead of the re-letting of
prime contracts in 2017, prioritise the development of a more
flexible approach to "mandation".
PRE-SANCTION WRITTEN WARNINGS AND NON-FINANCIAL SANCTIONS
30. Matthew Oakley noted that a consequence of ineffective
communication, and confusion around dual responsibilities, was
that some claimants had a poor understanding of their obligations
when initially referred to the Work Programme. This sometimes
resulted in claimants with a previously good record of compliance
with benefit conditionality receiving a sanction. The review recommended
that DWP pilot pre-sanction written warnings and non-financial
sanctions, including more regular attendance at appointments at
the Jobcentre or the contracted provider, for claimants' "first
failures" in relation to the Work Programme, particularly
where the claimant had a good record of compliance with JCP conditionality.
31. This recommendation was accepted "in principle"
only; it was another area in which the Government believed that
legislative change was necessary. Its response to the review stated
that it would "consider further the potential options and
the likely timescales."
32. In oral evidence, Matthew Oakley's view was that
it would in fact be possible for the Government to move relatively
quickly to pilot pre-sanction written warnings and non-financial
sanctions in these limited circumstances, without the prior need
for new legislation. He also believed that they would be "relatively
easy" to pilot within Universal Credit, as the relevant Regulations
allowed considerable flexibility.
33. We note that the Department considers that
piloting of pre-sanction written warnings and non-financial sanctions
for first-time Work Programme failures where the claimant has
a previously good record of compliance with benefit conditionality
would require legislative change. We believe that there would
be considerable value in piloting these approaches urgently; we
therefore urge DWP either to reconsider its position, and conduct
small scale pilots prior to making legislative changes, or to
bring forward the necessary secondary legislation, and conduct
the pilots, as soon as is practicable in the next Parliament.
We also recommend that DWP pilot pre-sanction written warnings
and non-financial sanctions in relation to claimants' first-time
failures within the Jobcentre Plus conditionality system.
UNINTENDED IMPACTS ON HOUSING BENEFIT PAYMENTS
34. Benefit sanctions should only affect out-of-work
benefits. The Oakley Review reported that there had been a number
of instances of JSA sanctions resulting in local authorities incorrectly
ending a claim for Housing Benefit. The report did not assess
the scale of this problem.
35. In its response to the review, the Government
acknowledged that Housing Benefit should not be affected by JSA
sanctions, and stated that it was "taking immediate action
to ensure that this does not happen." It explained that the
problem arose due to automatic IT notifications sent by DWP to
local authorities whenever a JSA payment is stopped; the information
is essential because in some cases where JSA payments have stopped,
particularly where the claimant has entered work, the local authority
will need to review the claimant's Housing Benefit entitlement.
It was not always possible within the existing notification system
to distinguish between JSA payments which had stopped due to a
sanction, and those which had ended for other reasons.
36. The Government proposed a short-term and a long-term
solution. In the short-term, it would "ensure that wherever
necessary claimants will be advised to keep their Local Authority
informed to stop them inadvertently closing their Housing Benefit
including Matthew Oakley, believed that this short-term solution
was "clearly not reliable". The longer-term response
was to implement a more reliable IT solution. It was not clear
to witnesses what progress had been made with this.
37. In oral evidence the Minister told us that the
problem had been addressed. The Department had investigated around
300 potential cases, but the issue had not been found to have
occurred in any of them. She also reported that DWP was manually
checking for the problem "constantly". There had only
been one potential case recently. She assured us that the Department
had taken the issue "very seriously indeed."
38. We recommend that DWP clarify, in its response
to this Report: the extent to which Housing Benefit payments have
been incorrectly impacted by Jobseekers Allowance sanctions, as
identified by the Oakley Review; the steps it has takenbeyond
advising claimants themselves to inform their local authority
when they are sanctionedto address the issue; and whether
robust systems are now in place to ensure that the issue no longer
Witnesses' views on the Oakley
39. There was very widespread support for the Oakley
Review; most witnesses felt that implementation of its recommendations
would go a long way towards improving DWP's communications, and
claimants' understanding, in relation to Back to Work scheme JSA
also recognised that many of the Oakley recommendations, particularly
around more effective communications, were relevant to benefit
sanctions policy more broadly and therefore had the potential
to improve the wider system.
40. Mr Oakley was satisfied that the changes already
made by DWP to its claimant letters, and the publication of the
new sanctions fact-sheets, were "a really positive step forward".
However, he also emphasised that:
There is of course work to be done. Some of the recommendations
clearly could not be implemented immediately. Some will take renegotiation
of contracts [
]. Others will take time in Parliament, either
for primary or secondary legislation, and I think it is right
that they take time to get those issues right [
SCOPE OF THE OAKLEY REVIEW
41. Matthew Oakley emphasised in his report that,
while issues about communication and claimants' understanding
of the sanctioning process were clearly important, a range of
organisations had raised much broader concerns, including "the
effectiveness of the sanctioning system in improving movements
into work, the proportionality of the current sanctions levels
and the pace of change over the last ten years." His view
was that there were "wider issues that should and could be
We consider some of the broader issues in the remainder of this
6 Jobseekers (Back to Work Schemes) Bill 2012-13,
Standard Note SN06587, House of Commons Library, March 2013 Back
For full terms of reference, see Oakley Review, p 14 Back
For a full description of the process in relation to Back to Work
schemes, see Oakley Review, pp 16-20. The DWP Decision Makers'
guide is available here: www.gov.uk/government/collections/decision-makers-guide-staff-guide
Government response to the Oakley Review Back
Oakley Review, p 11 Back
Ibid., p 9 Back
Ibid., p 37 Back
Ibid., p 38 Back
Ibid., p 37 Back
Ibid., p 39; p 38 Back
Ibid., p 10 Back
DWP (SAN0142) Back
DWP, Independent review of Jobseeker's Allowance sanctions Government response: Update on improvements to communications,
December 2014 Back
DWP (SAN0142) Back
Oakley Review, p 40 Back
ERSA (SAN0145) Back
Oakley Review, pp 43- 44 Back
Citizens Advice Scotland (SAN0096); Dr David Webster (SAN0110);
Shaw Trust (SAN0144) Back
See National Audit Office, The Work Programme, HC 266, June 2014,
Summary para 6 and para 1.11 Back
Q274 (see footnote 3) Back
Oakley Review, p 42 Back
Government response to the Oakley Review, p 14 Back
Oakley Review, p 38 Back
Government response to the Oakley Review, pp 10-11 Back
Webster, D, JSA sanctions: A guide to the Oakley Report and the Government's response,
September 2014; Qq7-10 [Matthew Oakley and Tony Wilson] Back
See, for example, Co-chairs of the All-Party Parliamentary Inquiry
into Hunger in the United Kingdom (SAN0113); Crisis (SAN0122);
ERSA (SAN0145); CPAG (SAN0152) Back
See, for example, Co-Chairs of the All-Party Parliamentary Inquiry
into Hunger in the United Kingdom (SAN0113); Crisis (SAN0122) Back