6 ESA sanctioning |
113. Employment and Support Allowance (ESA) is a
relatively new benefit; it was introduced in 2008 as a replacement
for incapacity benefits (IB), for unemployed people with long-term
health conditions and disabilities. ESA claimants considered to
have "limited capability for work", but with the capability
to undertake "work-related activity" and considered
to have a reasonable prospect of being able to work in the future,
can be placed in the ESA Work-related Activity Group (ESA WRAG).
These claimants are subject to a more limited range of conditionality
than JSA claimantsattendance at mandatory work-focused
interviews at JCP and/or mandatory participation in the Work Programme.
Welfare Reform Act 2012: increased
114. The monetary value of financial sanctions which
can be applied to ESA claimants increased significantly following
the WRA 2012. The Act also introduced a system of fixed-period
sanctions. Under the previous system ESA WRAG claimants who failed
to attend a JCP appointment, or who failed to carry out mandatory
work-related activity, could be subject to an open-ended sanction.
The sanction amount was 50% of the work-related activity component
of their benefit (i.e. around £14 per week), increasing to
100% (£28.15 per week) of the component after four weeks.
Under this regime full benefit was reinstated when the claimant
recommenced compliance with the conditions.
115. Under the new rules, ESA WRAG claimants who
fail to comply can receive the same open-ended sanction of their
work-related activity component while they fail to comply, followed
by a fixed period sanction once they start to comply again. As
in the new JSA regime, ESA sanctions are now escalated for repeat
failures. The fixed period sanction is one week for a first failure,
two weeks for a second failure and four weeks for third and subsequent
failures within a 52 week period. The fixed period sanction applies
to the claimant's entire ESA basic component (£71 per
Safeguards to protect ESA claimants
from inappropriate conditionality
116. There are extensive safeguards set out in the
relevant DWP/JCP guidance to protect ESA claimants from inappropriate
conditionality and sanctions. These are designed to ensure that
JCP staff take proper account of claimants' needs and capabilities.
The guidance is clear that staff "must take account of all
the claimant's circumstances, including the claimant's physical
or mental health condition." It also emphasises that staff
must make efforts to identify claimants who may have had difficulty
in understanding the requirements placed on them. It states that:
] it is particularly important to consider
the welfare of claimants who have mental health conditions or
learning disabilities, or conditions affecting communication/cognition,
for example, stroke or autistic spectrum disorder.
117. Where claimants fail to meet a condition, the
guidance is that staff must establish whether the claimant
had "good cause" for doing so before referring the claimant
for a sanction decision. A list of circumstances in which claimants
might be considered to have had good cause is set out, including
where the claimant:
misunderstood any requirement given to them due to any learning,
language or literacy difficulties;
· Has been given
misleading information by a member of staff;
· Was attending
a medical or dental appointment, or accompanying a person for
whom the claimant has caring responsibilities to such an appointment,
and it would have been unreasonable for them to rearrange that
· Had difficulty
with their normal mode of transport and there was no reasonable
· Has established
customs and practices of religion, which prevented them from attending
at that particular time;
· Was attending
an interview for employment;
· Was pursuing
an employment opportunity as a self-employed earner;
· Had an accident,
sudden illness or relapse in the case of a chronic condition which
prevented the claimant from attending on the day;
· Is a person
with caring responsibilities and the person for whom care is provided
had an accident, sudden illness or relapse in the case of a chronic
condition which prevented the claimant from attending on the day/undertaking
the WRA [work-related activity];
· Suffered from
any disability or health condition, which prevented them from
attending on the day / undertaking the WRA; or
· Was attending
the funeral of a relative or close friend.
CORE VISIT GUIDANCE
118. Additionally, the guidance states that, where
an ESA claimant fails to meet a condition and good cause cannot
be established, and where the claimant is considered to be particularly
vulnerable as a consequence of their health condition (defined
as having a mental health condition or learning disability), arrangements
must be made for DWP staff to visit the claimant at their
home. These visits
are known as Core Visits, the aim of which, in these circumstances,
is to: "ensure the claimant fully understands the requirements
placed on them by Jobcentre Plus in satisfying the conditions
of entitlement to benefit [before a sanction referral is made]".
119. Witnesses representing disability organisations
acknowledged that the safeguards set out above were extensive.
Paul Farmer, Chief Executive of the mental health charity, Mind,
described them as "pretty good".
However, representative organisations were concerned that a) the
safeguards were not always applied; and b) that they were set
out in guidance only, rather than being defined in legislation.
There were several examples given in evidence in which the guidance
on good cause appeared not to have been followed.
Analysis of official sanctions data by Mind demonstrated that
ESA claimants with a mental health condition were significantly
more likely to receive a sanction than the general ESA claimant
Farmer reported that he was "not aware of Core Visits being
applied at all".
120. DWP told us that it undertook around 40,000
Core Visits per year.
It was unable to tell us how many of these visits resulted in
a sanction being applied.
The extent of ESA sanctioning
121. Witnesses were very concerned about a notable
increase in ESA sanctioning since 2013.
The number of sanctions applied per month has increased steadily
from around 1,000 in early 2013, reaching a peak of 3,828 in September
2014, the latest month for which official statistics are available.
In the year to September 2014 there were 38,755 ESA sanctions
applied; up from 18,983 in the year to September 2013.
This is to some extent related to increasing ESA WRAG caseloads,
as more claimants transfer from IB to ESA; however, ESA sanctioning
rates (adverse sanction decisions as a percentage of the total
ESA WRAG caseload) have also increased, for example from 0.3%
in May 2013 to 0.75% (after reconsiderations and appeals) in September
122. In oral evidence the Minister said that "ESA
sanctions are less in 2014 than they were in 2010-11".
The Department later clarified that the Minister was referring
to the average monthly ESA sanctioning rate in 2014 (0.6%) compared
to that in 2010-11 (0.72%).
It should be noted that in 2010-11 ESA WRAG caseloads were much
smaller, and there were almost no mandatory referrals to the Work
Programme, which was launched in June 2011 to replace a range
of existing programmes.
The 2010-11 period can therefore be considered atypical; it does
not provide a meaningful comparator.
Work Programme related ESA sanctions
123. The increase since 2013 in the number and proportion
of ESA claimants sanctioned is almost entirely related to claimants'
"failure to participate in work-related activity"i.e.
predominantly non-attendance at mandatory Work Programme appointments:
FIGURE 3: REASONS FOR ESA SANCTIONS, MONTHLY (THOUSANDS)
124. Kirsty McHugh of ERSA acknowledged that the
increase was predominantly a consequence of increased ESA referrals
to the Work Programme. She told us that because Work Programme
performance in relation to ESA claimant groups had been very low
in the early years in the Work Programme, there had recently been
a renewed focus on ESA claimants, including more mandatory activity,
which she believed "might be leading to more sanction doubts
125. Other witnesses suggested that Work Programme
providers were not sufficiently aware of ESA claimants' health-related
needs, or were making "unreasonable demands" on them,
and that this was leading to more sanctions.
A number of witnesses, including Kirsty McHugh, reported that
information gathered from the ESA assessment process was not routinely
shared with Work Programme providers.
This is an issue on which both we and the independent reviewers
of the assessment have made recommendations for change.
126. The Child Poverty Action Group (CPAG) was concerned
that, while there was guidance setting out actions Work Programme
providers should take to safeguard vulnerable claimants, appropriate
protections were not defined in legislation and therefore:
Since the requirement to take safeguarding action
is only in guidance and not a requirement of the law, even when
such action has not been undertaken, this does not necessarily
mean that a sanction can be overturned.
Balance between ESA conditionality
127. Some witnesses were concerned that the relatively
poor performance of the Work Programme in relation to ESA claimants
indicated that the ESA conditionality regime was not always balanced
by effective employment support.
We have previously concluded that the payment-by-results model
of the Work Programme is not well-suited to providing effective
support for people who are furthest from the labour market, including
those with long-term health conditions, and therefore require
more intensive support.
Kirsty McHugh alluded to this issue when she told us that "there
is not enough money in the system to meet the needs of people
128. It should be noted that while concerns remain
about the performance of the Work Programme in relation to ex-IB
and other groups of ESA claimants, the Work Programme is now meeting
its contractual minimum performance expectations for new ESA claimants.
However, Disability Rights UK (DRUK) reported that in general
the support available to ESA claimants on the Work Programme was
insufficiently specialised. Philip Connolly of DRUK described
Work Programme support for claimants with health conditions and
] too small, too generic; it is about job-searching
or CV writing. It is support that they have frequently had before
that may not have made a difference to their prospects in the
past, and then they are faced with sanctions.
Efficacy and impacts of ESA sanctions
129. Some witnesses emphasised a lack of evidence
for the efficacy of sanctions in relation to people who are some
distance from the labour market and therefore not expected to
enter employment in the shorter term.
Furthermore, there was strong anecdotal and qualitative evidence
of adverse impacts, particularly on health (see chapter 7). Inclusion
Among ESA claimants, we have found nothing but negative
experiences [of sanctions]claimants with often complex
needs, severe health conditions, poor awareness and understanding
of the system, and very significant impacts on finances, wellbeing
Tony Wilson of Inclusion argued that "it has
got to the point where we should suspend the application of sanctions
for people on ESA", until more effective approaches to employment-related
support for this group are developed.
130. The Minister defended the Government's approach,
noting that the ESA system was intended to encourage claimants'
engagement with support designed to bring them closer to the labour
market; she emphasised that ESA claimants were "not under
any legal obligation to take a job, but they do have to take the
steps to get into work."
The Department's view was that the very high level of complianceevidenced
by fewer than 1% of ESA WRAG claimants being sanctioned each monthindicated
that the level of conditionality was appropriate.
131. Some witnesses believed that alternative, voluntary,
approaches were more appropriate, and likely to be more effective,
particularly for some groups of ESA claimants. There is evidence
that voluntary approaches have been relatively effective in the
past, for example in the New Deal for Disabled People.
132. Paul Farmer advocated approaches which employed
an Individual Placement and Support (IPS) model for people with
more severe mental health conditions, such as depression, bi-polar
disorder and schizophrenia. IPS models integrate employment services
with mental health treatment services. They operate on an entirely
voluntary basis. Mr Farmer reported that IPS programmes had been
jointly delivered by local authorities and Mental Health Trusts
to good effectemployment rates were around 20-25%.
133. In July 2013 the Department announced pilots
of new approaches to employment support for ESA WRAG claimants,
to evaluate the comparative effectiveness of support delivered
via: healthcare professionals; JCP; and specialist Work Programme
providers. These pilots are due to run until 2016.
The Minister for Disabled People recently said that DWP was piloting
"a number of innovative approaches to employment support
for those with mental health conditions."
134. The very large majority of ESA sanctions
relate to claimants' failures to attend or participate in the
Work Programme. This reason accounts for almost all of the notable
increase in ESA sanctioning which has occurred since 2013. While
the performance of the Work Programme has improved significantly
after a poor start, and is now meeting minimum contractual performance
expectations for new ESA claimants, there remains widespread concern,
including from contracted providers, that the Work Programme does
not yet provide sufficiently specialised and effective support
for ESA claimants who are some distance from the labour market.
We therefore believe there is a risk that ESA conditionality is
still not properly balanced by effective employment support. We
recommend that DWP review ESA sanctioning in relation to the Work
Programme, accelerating development of more effective support
for this group, and prioritising the updating of regulations early
in the next Parliament, to empower Work Programme providers to
be able to accept "good cause". We call upon DWP also
to review the programme of Core Visits as soon as possible, to
clarify what changes to conditionality and the application of
sanctions occur as a consequence of such Core Visits.
135. There is a lack of evidence for the efficacy
of financial sanctions in moving claimants with long-term health
conditions and disabilities closer to employment or into work.
There is some evidence that voluntary approaches are more appropriate
and effective. We welcome DWP's commitment to testing alternative
approaches, particularly for ESA claimants with mental health
conditions. We recommend that the Department include voluntary
approaches in its pilots, including the Individual Placement with
Support model. DWP should test and evaluate these new approaches,
and publish its findings, prior to the re-letting of Work Programme
contracts in 2017. DWP should also test alternative, non-financial
models of conditionality for vulnerable groups. In particular,
it should review the situation of claimants with co-morbidities,
to ensure that there are no perverse unintended consequences in
applying non-financial models to particular vulnerable groups
122 For a full description of the ESA assessment process,
see, for example, Work and Pensions Committee, First Report of
Session 2014-15, Employment and Support Allowance and Work Capability Assessments,
HC 302 Back
Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 Back
DWP, ESA Guidance for Jobcentres, chapter 8 [not published] Back
JCP Core Visit guidance [not published] Back
See, for example, Sheffield Citizens Advice and Law Centre (SAN0126);
North Staffordshire Advice Partnership (SAN0119); Salford Financial
Inclusion Practitioner's Group (SAN0104) Back
Mind (SAN0106) Back
DWP (further supplementary evidence) (SAN0163) Back
See, for example, Disability Rights UK (SAN0099); Inclusion (SAN0143);
Mind (SAN0106); Back
DWP, Jobseekers Allowance and Employment and Support Allowance Sanctions: Decisions made to June 2014,
table 2.1 Back
Ibid., and DWP tabulation tool [accessed 18 February 2015];
Webster, D., Briefing: DWP's JSA/ESA statistical release, 18 February 2015 Back
DWP (further supplementary evidence) (SAN0163) Back
DWP tabulation tool; DWP, Work Programme Statistical Release,
August 2012 Back
Dr David Webster (SAN0110), figure 4 (FTA=failure to attend; FTP=failure
to participate) Back
Catherine Hale (SAN0061); Dr David Webster (SAN0110) Back
Q20 [Kirsty McHugh and Philip Connolly]; CPAG (SAN0152) Back
See An Independent review of the Work Capability Assessment-year five,
Dr Paul Litchfield, November 2014, Chapter 2, para 28 and Chapter
5 para 8; and Work and Pensions Committee, First Report of Session
2014-15, Employment and Support Allowance and Work Capability Assessments,
HC 302, July 2014, para 136 Back
CPAG (SAN0152) Back
See, for example, Disability Rights UK (SAN0099); Inclusion (SAN0143) Back
Work and Pensions Committee, First Report of Session 2013-14,
Can the Work Programme work for all user groups?, HC 162 Back
Work Programme official statistics Back
See, for example, Mind (SAN0106); Inclusion (SAN0143) Back
Inclusion (SAN0143) Back
See, for example, Q207 [Chris Hayes] Back
Q40 (Paul Farmer]; Q46 [Dr Webster]; ERSA (SAN0145); See also,
DWP, New Deal for Disabled People: Third synthesis report-key findings from the evaluation,
Research Report No. 340, 2007 [available via University of York
website, accessed 25 February 2015] Back
"Help for people on sickness benefits to address barriers to work",
DWP press release, 8 July 2013 Back
HC Deb, 26 January 2015, col. 547 Back