House of Commons - Benefit sanctions policy beyond the Oakley Review

Benefit sanctions policy beyond the Oakley Review - Work and Pensions Contents

5 Categories of JSA "sanction"

94. In oral evidence Matthew Oakley noted that the term "benefit sanction" had grown in popular usage to encompass a range of benefit-related problems, and argued that it was incumbent on DWP "to make sure it is communicating effectively with claimants who could be at risk of either sanction, disallowance or suspension", and ensure that claimants understand the circumstances in which each might apply and how they can be avoided.[99]

95. Below we examine the different types of JSA sanction, the types of claimant behaviours which fall into each of the categories, and set out data on the number and proportion of sanctions applied in each category. We consider the coherence of the system. In particular, we assess whether the distinction between sanctions for failing to meet a specific condition without good reason, and suspensions of benefit payments for broader failures to meet the underlying conditions of benefit, which might include abuse of the system by claimants, is sufficiently clear in DWP's processes and communications, and in the official data.

The range of applicable sanctions

Low level sanctions

96. There are 11 categories of low-level JSA sanction:

· Voluntarily leaves a place on a training scheme or employment programme without good reason;

· Losing through misconduct a place on a training scheme or employment programme;

· Refusal of a place on a training scheme or employment programme without good reason;

· Neglect to avail themselves of a reasonable opportunity of a place on a training scheme or employment programme without good reason;

· Failure to attend a place on a training scheme or employment programme without good reason;

· Failure to attend or failure to participate in an Adviser interview without good reason;

· Refusal or failure to comply with a Jobseeker Direction without good reason;

· Failure to participate in a scheme for assisting person to obtain employment without good reason—Work Programme;

· Failure to participate in a scheme for assisting person to obtain employment without good reason—Skills Conditionality;

· Failure to participate in a scheme for assisting person to obtain employment without good reason—other scheme; and

· Failure to participate in a scheme for assisting person to obtain employment without good reason—Work Experience.

In the period since the introduction of the WRA 2012 changes, from 22 October 2012, to September 2014, there were 1,562,893 adverse JSA sanction decisions. Some 880,825 low level adverse decisions were made in the period. A large majority (nearly 90%) of low-level sanctions fell into just two categories: failure to attend/participate in an interview at Jobcentre Plus; or failure to participate in the Work Programme. A small minority of low-level sanctions were in two other categories: refusal or failure to comply with a Jobseeker Direction without good reason; and failure to participate in Skills Conditionality (one of the mandatory Back to Work schemes introduced in 2011). Some 99% of low level sanctions were in the four categories described above:[100]

Table 1: Low level JSA adverse sanction decisions by category, 22 October 2012-September 2014

Category No. of adverse decisions % of low level adverse decisions % of all adverse decisions

Failure to participate in a scheme for assisting person to obtain employment without good reason—Work Programme 431,390 49% 28%

Failure to attend or failure to participate in an Adviser interview without good reason 357,655 41% 23%

Refusal or failure to comply with a Jobseeker's Direction without good reason 52,400 6% 3%

Failure to participate in a scheme for assisting person to obtain employment without good reason—Skills Conditionality 33,411 4% 2%

HIGH LEVEL SANCTIONS

97. High level sanctions fall into five categories:

· Left employment voluntarily without good reason;

· Losing employment without good reason;

· Neglect to avail themselves of a reasonable opportunity of employment without good reason;

· Refusal or failure to apply for, or accept if offered, a job which an employment officer has informed him/her is vacant or about to become vacant without good reason; and

· Failure to participate in Mandatory Work Activity without good reason.

The first four of these are longstanding sanction categories. Mandatory Work Activity, 30-hour per week unpaid work placements to which claimants can be referred where Work Coaches "believe a jobseeker will benefit from experiencing the habits and routines of working life", is another of the mandatory schemes introduced in 2011.[101] There were 131,685 high level sanctions applied between 22 October 2012 and September 2014. Only 114 of these were in the "Neglect to avail themselves of a reasonable opportunity of employment without good reason" category. The remainder were applied for the following reasons:[102]

Table 2: High level JSA adverse sanction decisions by category, 22 October 2012-September 2014

Category No. of adverse decisions % of high level adverse decisions % of all adverse decisions

Left employment voluntarily without good reason 52,693 40% 3%

Refusal or failure to apply for, or accept if offered, a job which an employment officer has informed him/her is vacant or about to become vacant without good reason 38,624 29% 2%

Losing employment through misconduct 20,340 15% 1%

Failure to participate in Mandatory Work Activity without good reason 19,919 15% 1%

INTERMEDIATE LEVEL "SANCTIONS"

98. Intermediate level adverse decisions entail JSA claims being closed for failure to meet the basic benefit entitlement conditions of: "actively seeking employment"; or being "available for work". Almost all (96%) of intermediate adverse decisions were in the "not actively seeking employment" category; 527,731 adverse decisions in the period to September 2014. These made up some 34% of all adverse sanction decisions—more than in any other single category across the whole system.[103]

Table 3: Intermediate level JSA sanction decisions by category, 22 October 2012-September 2014

Category No. of adverse decisions % of intermediate level adverse decisions % of all adverse decisions

Not actively seeking employment 527,731 96% 34%

Not being available for work 21,431 4% 1%

The "not actively seeking employment" category of "sanction"

99. Witnesses were concerned that the "not actively seeking employment" category included relatively minor infringements of job-seeking conditionality, rather than, as the title of the category might suggest, a more general failure to actively seek work.[104] Dr David Webster, Honorary Senior Research Fellow at the University of Glasgow, believed that: "'Not actively seeking work' is a misnomer. It usually means that the claimant is actively seeking work but has not done exactly what they are told by Jobcentre Plus."[105]

100. Witnesses reported that claimants who were clearly making significant efforts to find work had been sanctioned for not fulfilling the precise terms of their Claimant Commitment; for example, falling just short of completing the requisite number of steps set out.[106] It is not possible to discern from official data how many intermediate level adverse decisions were applied for this type of reason.

101. We recommend that DWP make a clear distinction—in its processes, its communications with claimants, and in the official data—between claimants who are not meeting the underlying conditions of entitlement, in particular those who are genuinely "not actively seeking employment" and may therefore be abusing the system, and those who have not fully complied with the precise terms of a Claimant Commitment. At the moment, both receive the same penalty.

REPORTED INCIDENCES OF SANCTIONS BEING APPLIED BEFORE "GOOD REASON" IS CONSIDERED

102. A recurring issue in the evidence was that claimants reported being sanctioned before having the opportunity to present good reason and before having received an official written notification of the decision.[107] CAS was concerned that sanctions applied in these circumstances were indicative of a system in which the claimant is "presumed guilty".[108] A number of witnesses argued that this went against natural, or administrative, justice.[109]

103. The Oakley Review reported that there were cases in which "the first that claimants knew of adverse decisions was when they tried to get their benefit payment out of a cash point but could not." The review's recommendation was that: "The Department should work to ensure that, as a general principle, claimants are clearly informed that they will be sanctioned before their benefits are affected."[110] The recent All-Party Parliamentary Group (APPG) inquiry into Hunger in the UK made a stronger recommendation:

We recommend that the Government make clear in guidance that a sanction decision is only lawful if letters are sent, and can be proven to have been received, to the claimant explaining the reason that a sanction is being imposed (including dates, what the failure was, and why there isn't good cause), [and] the period the sanction will apply for […].[111]

Whilst we note the APPG's rightful concern that organisational justice requires claimants to have full knowledge and understanding of the process to which they are subject, we also note warnings from other witnesses that, in areas of high transience, with significant vulnerable populations, reliance upon written communication is problematic given that postal addresses often become rapidly out-of-date.[112]

104. The Department provided us with a step-by-step description of the JSA sanction decision-making process which stated that "A sanction will not impact on the claimant's benefit until good reason has been considered and the claimant has been notified of the decision."[113] However, it also provided us with two separate templates for letters sent to claimants when a doubt about a JSA claim arises, and two different fact-sheets sent to claimants with the letter, depending on the circumstances of the doubt. These clearly indicated that there was a different approach where the doubt had arisen about whether the claimant was "actively seeking employment" or "available for work". Letters sent in these circumstances stated that:

A doubt has arisen on your claim for Jobseeker's Allowance as it appears that from <<date range>> <<text>>

A decision will be made about how this affects your claim for Jobseeker's Allowance.

Until this decision is received Jobseeker's Allowance cannot be paid under the normal rules[114] [emphasis added]

The relevant fact-sheet stated that:

If there is a doubt about whether you have been:

· actively looking for work, or

· available for work

we will stop paying your benefit until we decide whether you are entitled to Jobseeker's Allowance.[115]

105. It therefore appeared to be the case that in these circumstances JSA payments were immediately suspended, pending a formal decision. We wanted to know whether this was in fact the case, and whether there was a process by which claimants referred to a Decision Maker for "not actively seeking employment" or not being "available for work" had an opportunity to present good reason before a decision was made and their payment could be affected.

106. Chris Hayes confirmed that there were two different processes for the "two forms of benefit reduction". If a claimant had, for example, not attended an appointment with a Work Coach, or had failed to carry out a Jobseeker Direction, the claimant was informed in writing that a "doubt" had arisen, and was allowed five days to present good reason, before a referral was made to a Decision Maker. The claimant's benefit payment would not be affected until a decision was made. The second circumstance was where the doubt had arisen about whether the claimant was "actively seeking employment" or "available for work". This was typically the result of a discussion between the Work Coach and the claimant, in which the claimant had the opportunity to present good reason as to why they had "not done enough" to find work or "not done what they had said they would do" as part of their Claimant Commitment. If the Work Coach did not accept the claimant's good reason, a sanction referral was made. By law the claimant's JSA payment had to be suspended immediately, pending a formal decision, "because they have not met the basic conditions of the benefit."[116]

107. In its response to the Oakley Review—although not prompted by the Review's recommendations—the Government stated that it had:

Started development of a new process where advisers identify doubt about whether a claimant has been actively seeking work. This will change the longstanding system where benefit payment is suspended without a decision from a decision maker. Instead we will ensure that a decision is made before benefit payment is stopped. We expect this to take effect from July 2014.[117]

Chris Hayes explained that DWP had implemented a process in which it was now "aiming to clear" this type of decision within two days. In practice this meant that, due to the JSA payment cycle, a claimant's benefit payment should not be affected prior to the decision being made.[118]

108. We recommend that the Government confirm the steps it has taken to ensure that suspensions of JSA payments where the JCP Work Coach believes that the claimant has not been "actively seeking employment" do not occur before good reason can be considered, and a decision made, by a Decision Maker detached from the employment support process. DWP should set out the steps it has taken to address this issue, to provide assurance that the newly instituted procedure of making decisions in these circumstances within two days of referral is sufficiently robust to ensure that the decision has in fact been made, and the claimant notified, before the JSA payment is suspended. We also believe that notification should be by either written or telephone communication, depending on the claimant's preferences as previously expressed to JCP staff when signing the Claimant Commitment, or subsequent to this.

Legislative framework

109. Welfare rights and advice organisations have noted that, while there have been numerous amending Regulations affecting the JSA sanctioning system, the underpinning primary legislation for JSA sanctions remains section 19 of the Jobseekers Act 1995, which stipulates that claimants must be actively seeking employment and taking "reasonable steps" to find work. Dr Webster's analysis was that: "if you challenge a sanction and go to tribunal, the only matter that the judge will consider is whether you took such steps as were reasonable to help you find employment in your circumstances".[119]

110. Welfare Rights organisations believed that, while the WRA 2012 had substantially reformed the system of financial penalties, including by creating a new section 19 of the 1995 Act, the categories of sanction remained largely unchanged. Some organisations believed that the potentially much more stringent and detailed conditionality often set out in Claimant Commitments was not currently well defined in legislation.[120]

111. Tony Wilson of Inclusion argued that the legislative framework for benefit sanctions policy ought to be reviewed in the next Parliament. He believed that, particularly given the requirement for legislative changes to fully implement the Oakley Review's recommendations, there was now a "very good opportunity to make the case for a new Act or amendments to the existing Act."[121]

112. Given the complexity of the existing legislation, there is a strong case for a review of the underpinning legislative framework for conditionality and sanctions, to ensure that the basis for sanctioning is clearly defined, and safeguards to protect vulnerable groups clearly set out. We recommend that the clarity and coherence of the legislative framework for benefit sanctions policy be included in the terms of reference of the full independent review which we have recommended.

99 Q18 Back

100 DWP, Jobseekers Allowance and Employment Support Allowance sanctions: decisions made to September 2014, February 2015, table 1.5 Back

101 See "Extra push for jobseekers as mandatory work activity placements come on-stream for those who need more focus", DWP press release, 17 May 2011 Back

102 DWP, Jobseekers Allowance and Employment Support Allowance sanctions: decisions made to September 2014, February 2015, table 1.5 Back

103 Ibid. Back

104 See, for example, Keep Volunteering Voluntary (SAN0131); Brent Citizens Advice Bureau (SAN0120) Back

105 Dr David Webster (SAN0110), footnote 3 Back

106 Keep Volunteering Voluntary (SAN0131); Trussell Trust (SAN0127) Back

107 See, for example, One Parent Families Scotland (SAN0146); Kilburn Unemployed Workers Group (SAN0095) Back

108 Q70 [Keith Dryburgh] Back

109 See, for example, Tony Brauer (SAN0036); Newcastle upon Tyne CAB (SAN0072); CPAG (SAN0152) Back

110 Oakley Review, p 11 Back