Mental Health and Benefits Handbook 1st editionPart 3: Key topics Chapter 15: Work, work-related requirements and sanctions
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Chapter 15: Work, work-related requirements and sanctions
Key facts
    •You can work while claiming most of the benefits covered in this Handbook.
    •For employment and support allowance (ESA), there are special rules about work.
    •If you get universal credit (UC) and/or ESA, you might have ‘work-related requirements’ – eg, requirements to look or prepare for work.
    •If you will struggle to satisfy your work-related requirements because of a mental health problem, you can ask to have them changed, reduced or stopped. The DWP does not have to accept your request but must comply with equality law and its own policies.
    •You cannot always appeal a decision about work-related requirements, but you may be able to challenge it in other ways.
    •If you do not comply with a work-related requirement, you could receive a sanction, which means you are paid less or no benefit for a period.
    •You can appeal decisions about sanctions and you may also be able to claim hardship payments from the DWP while you are sanctioned.
1. Benefits and work
You can claim most of the benefits covered in this Handbook while working.
    •You can qualify for universal credit (UC) (see Chapter 5) if you or your partner are in paid work. Your earnings are likely to affect the amount of UC you get (see here). Managing to do some work may affect whether the DWP accepts that you have limited capability for work or work-related activity (see here), which can affect the amount of UC you get and whether you have work-related requirements.
    •You can qualify for housing benefit (see Chapter 7) and pension credit (see Chapter 6) while working. Your earnings might affect the amount of benefit you get.
    •Work does not prevent you from claiming any of the following benefits, although the tasks you do for work are usually taken into account when assessing your entitlement:
      ◦personal independence payment (see Chapter 8);
      ◦adult disability payment in Scotland (see Chapter 9);
      ◦disability living allowance (see Chapter 10);
      ◦child disability payment in Scotland (see Chapter 11);
      ◦attendance allowance (see Chapter 12).
There are some benefits that you cannot always get while working.
    •You cannot usually claim employment and support allowance (ESA) (see Chapter 4) if you are working, or (for income-related ESA) if your partner works 24 hours a week or more.1Sch 1 para 6(1)(e)-(f) WRA 2007; regs 40-42 and 44 and Sch 6 para 2(4) ESA Regs; regs 37-39 ESA Regs 2013 However, once on ESA, you might be able to do some ‘permitted work’. Work that you do for less than 16 hours a week and for which you earn no more than £167 a week can usually be permitted work. Earnings from permitted work do not reduce your ESA. You might also be able to get ESA while doing voluntary work or in certain roles – eg, as a councillor or First-tier Tribunal panel member.2Regs 40, 45 and 88 ESA Regs; regs 37 and 39 ESA Regs 2013 However, even if work does not stop you getting ESA, the tasks you do for work are usually taken into account in your next work capability assessment and this could affect your future entitlement to ESA.
    •You cannot usually get income support (IS) (see gov.uk/income-support) or jobseeker’s allowance (JSA) (see gov.uk/jobseekers-allowance) if you are working 16 hours or more a week, or (for IS and income-based JSA) if your partner is working 24 hours or more a week (16 hours or more if you have a joint JSA claim).3IS s124(1)(c) SSCBA 1992; reg 5 IS Regs;
    JSA s3(1)(e) JSA 1995; reg 51 JSA Regs; reg 42 JSA Regs 2013
    •You cannot usually get carer’s allowance (CA) (see gov.uk/carers-allowance) when you earn more than £139 a week.4s70 SSCBA 1992; reg 8 SS(ICA) Regs
Work can have other effects on the benefits you are entitled to. For example:
    •If you get UC and have earnings of more than £722 a month, you are exempt from the benefit cap (see gov.uk/benefit-cap).5Reg 82 UC Regs
    •Your work history might mean you qualify for contributory benefits like contributory ESA (see Chapter 4) or employer-paid benefits like statutory sick pay (see gov.uk/statutory-sick-pay).
There is more information about benefits and work in CPAG’s Welfare Benefits and Tax Credits Handbook.
Specialist employment support
If you are keen to find work, but your mental health problem affects the work you can do, you may be able to get specialist employment support through the job centre. For further information, see gov.uk/looking-for-work-if-disabled.
 
1     Sch 1 para 6(1)(e)-(f) WRA 2007; regs 40-42 and 44 and Sch 6 para 2(4) ESA Regs; regs 37-39 ESA Regs 2013 »
2     Regs 40, 45 and 88 ESA Regs; regs 37 and 39 ESA Regs 2013 »
3     IS s124(1)(c) SSCBA 1992; reg 5 IS Regs;
JSA s3(1)(e) JSA 1995; reg 51 JSA Regs; reg 42 JSA Regs 2013 »
4     s70 SSCBA 1992; reg 8 SS(ICA) Regs »
5     Reg 82 UC Regs »
2. Work-related requirements
If you get universal credit (UC) and/or employment and support allowance (ESA), you might have ‘work-related requirements’.
Note:
    •If you are entitled to UC and contributory ESA, you only need to meet one set of work-related requirements – those for UC.1Reg 42 ESA Regs 2013
    •See CPAG’s Welfare Benefits and Tax Credits Handbook for the rules for jobseeker’s allowance (JSA). If you are getting income-based JSA, struggling with your work-related requirements due to a mental health problem and being told that you must therefore claim UC instead, get independent advice first (see advicelocal.uk).
 
1     Reg 42 ESA Regs 2013 »
Universal credit
The default position is that to get UC you must work or look for work (see here).1ss13 and 22 WRA 2012 However, you should be treated differently if you have a health condition or disability – such as a mental health problem – that restricts your ability to work.
 
1     ss13 and 22 WRA 2012 »
Limited capability for work or work-related activity
If you declare a mental health problem that affects your ability to work, and supply a fit note, you usually have a work capability assessment (WCA – see here). This is used to decide if you have limited capability for work (LCW) or limited capability for work and work-related activity (LCWRA).
If you have LCWRA, you do not have to meet any work-related requirements to continue getting UC.1s19 WRA 2012
If you have LCW, you can be required to:
    •take part in work-focused interviews - eg, appointments with a work coach at the job centre or by phone;2ss15 and 21 WRA 2012; regs 87 and 93 UC Regs; para J3031 ADMand
    •do ‘work preparation’ – eg, a skills assessment, training, and/or a work placement.3ss16 and 21 WRA 2012
Your work coach may also agree voluntary, tailored commitments with you which can allow you to test out certain activities without risking a sanction.4DWP, Universal Credit Guidance, ‘No work-related requirements regime’, v9.0, and ‘Work preparation regime’, v14.0, House of Commons library deposited papers, available at rightsnet.org.uk/universal-credit-guidance
 
1     s19 WRA 2012 »
2     ss15 and 21 WRA 2012; regs 87 and 93 UC Regs; para J3031 ADM »
3     ss16 and 21 WRA 2012 »
4     DWP, Universal Credit Guidance, ‘No work-related requirements regime’, v9.0, and ‘Work preparation regime’, v14.0, House of Commons library deposited papers, available at rightsnet.org.uk/universal-credit-guidance »
All work-related requirements
It might be decided that you do not have LCW or LCWRA – ie, that you are ‘fit for work’. If this happens, you are usually placed in the all work-related requirements group, sometimes known as the ‘intensive work-search group’.
In this group, in order to continue getting UC, you can be required to:
    •take part in work-focused interviews - eg, appointments with a work coach at the job centre or by phone;1ss15 and 22 WRA 2012; regs 87 and 93 UC Regs; para J3031 ADM and
    •do ‘work preparation’ - eg, a skills assessment, training, and/or a work placement;2ss16 and 22 WRA 2012 and
    •look for work – eg, search for and apply to job vacancies and register with employment agencies;3ss17 and 22 WRA 2012; regs 94 and 95 UC Regs and
    •be available for work – ie, to go to job interviews, and to take up paid work if it is offered to you.4s18(1) and (2) WRA 2012; regs 87 and 96 UC Regs
While waiting for a work capability assessment
You are usually put in the all work-related requirements group while you wait for a first work capability assessment. However, your work-related requirements should be tailored to your circumstances during this period (see here).
What advisers say: before a work capability decision
‘In the period prior to a WCA decision, work coaches have significant flexibility in terms of whether to and what work-related requirements to impose. As always, having someone to accompany you to any meetings (whether it’s a CPN, support worker, partner or other family member) is helpful in this regard.’
While challenging a work capability decision
If you have been found ‘fit for work’, you are usually put in the all work-related requirements group even if you are challenging the decision (see Chapter 17), but your work coach can and should tailor your work-related requirements.
 
1     ss15 and 22 WRA 2012; regs 87 and 93 UC Regs; para J3031 ADM »
2     ss16 and 22 WRA 2012 »
3     ss17 and 22 WRA 2012; regs 94 and 95 UC Regs »
4     s18(1) and (2) WRA 2012; regs 87 and 96 UC Regs »
Adjusting your work-related requirements
The DWP has a lot of discretion about work-related requirements. No matter the outcome of a WCA, your requirements should be adjusted if you are unable to comply with them for mental health reasons. There is nothing to stop you from asking your work coach to review and update your work-related requirements at any time.1s14(2) WRA 2012 See Chapter 13 about the kind of supporting evidence that you could use when making a request.
What advisers say: what work-related requirements to expect
‘There are huge discrepancies in how claimants are treated depending on who their work coach is and which other job centre staff (see here) they encounter. This can make it very difficult to advise claimants on what to expect.’
Limitations on work search and work availability
In the all-work related requirements group, you are generally expected to search for work for at least 35 hours a week and to look for work that you can do for at least 35 hours a week. However, if you have a ‘physical or mental impairment’ (and in certain other circumstances) these hours can be reduced.2Regs 88 and 97 UC Regs Most, if not all, mental health problems should be accepted as ‘mental impairments’. Additionally, if your condition substantially reduces your ability to do work of a particular type or in particular locations, you do not have to be available for or look for that kind of work.3s17(4) and (5) WRA 2012; reg 97(4)-(6) UC Regs
While you are providing fit notes
If you provide fit notes (eg, because you are waiting for a WCA or because you have a short-term period of sickness), no work search or work availability requirements can usually be imposed on you for the first 14 days. This can apply up to twice in a 12-month period.4Reg 99(1), (4), (4ZA) and 4(ZB) UC Regs
These rules are not normally helpful for long-term mental health problems. Note the other rules in this section about adjusting your work-related requirements.
Complex needs
The DWP has policies about how it must support people claiming UC whom it considers to have ‘complex needs’. This includes giving extra thought to work-related requirements. There is more information on p000.
Easements and reasonable adjustments
If you cannot comply with certain work-related requirements because of your mental health, you can ask your work coach to change, reduce or stop them. These adjustments by a work coach are sometimes called ‘discretionary easements’. The DWP states that these can be applied for a short, medium or long period of time and that they should take account of ‘all of [your] individual circumstances.’5ADM J3160 and J3250-J3270 Easements may include, for example, switching off your work-related requirements during a mental health crisis or pausing your work search requirement for a period while you are unable to comply with it because of your symptoms.
Under the Equality Act 2010,6ss20, 21 and 29 EA 2010. See also s19 the DWP also has a duty to make ‘reasonable adjustments’ to the way it imposes work-related requirements to avoid disadvantage to people with disabilities. A failure to make these adjustments is discrimination. (See here about the meaning of ‘disability’.) A reasonable adjustment might include changing the type, venue, frequency, length or timing of work-related activity.
Job centre interviews: some types of reasonable adjustment7DWP, Universal Credit Guidance, ‘Reasonable adjustments’, v5.0, House of Commons library deposited papers, available at www.rightsnet.org.uk/universal-credit-guidance
Changing the location of an interview
Audio recording of an interview
Home visits (in exceptional circumstances)
Private interview rooms or providing a quiet space at the job centre
Changing the time or date of an interview
Involving representatives and other third parties
If a request for an easement or reasonable adjustment is refused, you cannot challenge this through mandatory reconsideration or appeal, but may request a further review of your work-related requirements,8s14(2) WRA 2012; DWP, Universal Credit Guidance, ‘Claimant commitment’, v5.0, House of Commons library deposited papers, available at rightsnet.org.uk/universal-credit-guidance complain (see here) or consider judicial review (here). For example, if you are being required to attend the job centre every week and this is inappropriate because of your mental health condition, your adviser may be able to challenge this using the template judicial review pre-action letter available at cpag.org.uk/jr/letters. Contact an independent advice service if you need support with this step - see advicelocal.uk.
Examples
Lakyle, who experiences anxiety, is assessed as having LCW. He has work-focused interview and work preparation requirements. Lakyle can ask to have his work-focused interviews by telephone, explaining that visits to the job centre cause him acute anxiety. He can also ask not to be put forward for face-to-face training in large groups if he would find this unmanageable.
Bronwyn has a long-term mental health condition. On moving from ESA to UC, she has a new WCA and is found ‘fit for work’ While appealing the decision, Bronwyn is placed in the all work-related requirements group. She explains her mental health problem to her work coach who agrees to limit her required hours of work-search and work availability. The work coach also agrees that Bronwyn’s work preparation requirement can be satisfied through an online course rather than, for example, work experience, because this is something that Bronwyn agrees she can reasonably manage. The work coach does not agree to reduce the frequency of Bronwyn’s weekly job centre appointments, despite Bronwyn explaining that she thinks this would be a reasonable adjustment. Although Bronwyn cannot appeal this decision, she may be able to get it changed by asking for a further review of her work-related requirements, making a complaint and/or pursuing judicial review.
 
1     s14(2) WRA 2012 »
2     Regs 88 and 97 UC Regs »
3     s17(4) and (5) WRA 2012; reg 97(4)-(6) UC Regs »
4     Reg 99(1), (4), (4ZA) and 4(ZB) UC Regs »
5     ADM J3160 and J3250-J3270 »
6     ss20, 21 and 29 EA 2010. See also s19 »
7     DWP, Universal Credit Guidance, ‘Reasonable adjustments’, v5.0, House of Commons library deposited papers, available at www.rightsnet.org.uk/universal-credit-guidance »
8     s14(2) WRA 2012; DWP, Universal Credit Guidance, ‘Claimant commitment’, v5.0, House of Commons library deposited papers, available at rightsnet.org.uk/universal-credit-guidance »
Other rules about work-related requirements
Other factors not related to your health can also reduce your work-related requirements for UC – eg, being responsible for a child, experiencing domestic abuse or bereavement, or receiving treatment for alcohol or substance abuse. See CPAG’s Welfare Benefits and Tax Credits Handbook for more information.
New-style employment and support allowance
New-style ESA is contributory ESA that ‘comes under the UC system’, including most awards on new ESA claims made on or after 12 December 2018 (see here).
If you have LCWRA for new-style ESA, you have no work-related requirements.1s11D WRA 2007
If you have LCW for new-style ESA, you can be required to:2ss11B, 11C and 11F WRA 2007; reg 46 ESA Regs 2013; para U5031 ADM
    •take part in work-focused interviews - eg, appointments with a work coach at the job centre or by phone; and
    •do ‘work preparation’ - eg, a skills assessment, training, and/or a work placement.
Note: while you are waiting for a WCA for ESA, or appealing a ‘fit for work’ decision, you are normally treated as having LCW.3Reg 26 ESA Regs 2013
As for UC, you can request reasonable adjustments to enable you to meet your work-related requirements (see here).
Other factors not related to your health can also reduce your work-related requirements for ESA. See CPAG’s Welfare Benefits and Tax Credits Handbook for more information.
 
1     s11D WRA 2007 »
2     ss11B, 11C and 11F WRA 2007; reg 46 ESA Regs 2013; para U5031 ADM »
3     Reg 26 ESA Regs 2013 »
Old-style employment and support allowance
‘Old-style ESA’, in practice, covers many ESA awards starting before 12 December 2018, including all awards of income-related ESA (see here).
If you have LCWRA for old-style ESA, you have no work-related requirements.1s11D WRA 2007; reg 3(3) ESA(WRA) Regs
If you have LCW, you can be required to take part in work-related activity.2s13 WRA 2007; regs 3 and 5 ESA(WRA) Regs For old-style ESA, ‘work-related activity’ is activity that makes it more likely that you will get a job or remain in work. The exact activity is at the discretion of your work coach but cannot include mandatory work experience, being required to apply for jobs, or being required to get medical treatment.3Reg 3(4) ESA(WRA) Regs; vol 9 Ch 53, para 53073DMG
Note: while you are waiting for a WCA for ESA, or appealing a ‘fit for work’ decision, you are usually treated as having LCW.4Reg 30 ESA Regs
Any work-related requirement for old-style ESA must be reasonable, taking into account your circumstances.5Regs 3(4)(a) and 6 ESA(WRA) Regs As for UC, you can request reasonable adjustments to enable you to meet your work-related requirements (see here).
Factors unrelated to your health can also reduce your work-related requirements for ESA. See CPAG’s Welfare Benefits and Tax Credits Handbook for more information.
 
1     s11D WRA 2007; reg 3(3) ESA(WRA) Regs »
2     s13 WRA 2007; regs 3 and 5 ESA(WRA) Regs »
3     Reg 3(4) ESA(WRA) Regs; vol 9 Ch 53, para 53073DMG »
4     Reg 30 ESA Regs »
5     Regs 3(4)(a) and 6 ESA(WRA) Regs »
3. Sanctions and hardship payments
Note: see CPAG’s Welfare Benefits and Tax Credits Handbook for the rules about jobseeker’s allowance.
Universal credit
Being sanctioned means that your UC payments are reduced or stopped for a period because you have not complied with a work-related requirement. You cannot be sanctioned if you have ‘good reason’ for not complying.1UC ss26 and 27 WRA 2012; regs 100-114 UC Regs; JB v SSWP (UC) [2018] 360 (AAC); KG v SSWP (UC) [2020] UKUT 307 (AAC); chs K1-K9 ADM
New-style ESA s11J WRA 2007; regs 50-61 ESA Regs 2013; ch V7 ADM
Good reason is widely defined and may include, for example:2Ch K2 ADM; ADM V7080; S v SSWP [2017] UKUT 477 (AAC); RR v SSWP [2017] UKUT 459 (AAC); DWP, Universal Credit Guidance, ‘Failure to attend - good reason’, v6.0, House of Commons library deposited papers, available at rightsnet.org.uk/universal-credit-guidance
    •panic attacks or anxiety that prevent you from travelling to an appointment;
    •forgetfulness or confusion as a result of a mental health problem;
    •oversleeping, if this is connected with your condition or medication;
    •mental health symptoms arising at a particular time – eg, the anniversary of a bereavement;
    •a ‘mental health crisis’;
    •being in hospital or at a medical appointment, although you are expected to give the DWP notice of medical appointments where you know about them in advance.
The DWP should always check whether you have a mental health problem or other ‘complex needs’ before referring your case for a sanction decision, and may need to consider a home visit if it cannot get in touch with you. If your case is passed to a decision maker and the evidence shows your work-related requirements were unreasonable at the time you failed to comply with them, the decision maker should accept that you had a good reason and should return the case for your requirements to be reduced.3paras J3257 and K2054-58 ADM; DWP, Universal Credit Guidance, ‘Complex needs’, v18.0, and ‘Home visits’, v12.0, House of Commons library deposited papers, available at rightsnet.org.uk/universal-credit-guidance
You may also have good reason if your work-related requirements, or the consequences of not complying with them, were not made clear to you.
Example
Bronwyn (above) misses a job centre appointment. She writes a message in her UC journal afterwards explaining that she arrived early for her appointment but had felt acutely paranoid while sitting in the waiting area and had to leave and go straight home. She says that, if needed, she can provide her bus ticket as evidence that she travelled to the job centre. Her work coach accepts that she had good reason for not attending the appointment.
Bronwyn misses her next job centre appointment too. This time she writes a journal message 45 minutes before the appointment saying that she feels so unwell she is unable to leave the house. The work coach takes into account what the DWP knows about Bronwyn’s mental health problem and again accepts good reason.
If you are sanctioned, you can challenge the decision through mandatory reconsideration and appeal (see Chapter 17).4s12 SSA 1998; regs 14 and 51 UC,PIP,JSA&ESA(DA) Regs There is no time limit for requesting mandatory reconsideration of a sanction. You can challenge a decision on the grounds of good reason, or because you do not agree that you actually failed to comply with a requirement.
What advisers say: challenging a sanction
‘It can feel hard to argue against a sanction, worry that challenging it will only make things worse or that you would do better to take a short sanction on the chin. But sanctions can happen for wrong reasons and decisions can often be reversed if challenged. The trouble with ‘“just accepting” a short sanction is that, should there be another one, it may be for longer as a result.’
You can also apply for a reduced-rate payment of UC called a ‘hardship payment’ if you struggle financially while you are sanctioned. The amount you can get is fixed and you usually have to pay it back.5General s28 WRA 2012; regs 6 and 115-119 UC Regs; ch L1 ADM
Recoverability s71ZH(1)(a) SSAA 1992; DWP, Benefit Overpayment Recovery Guide, para 5.86 and Chapter 8
 
1     UC ss26 and 27 WRA 2012; regs 100-114 UC Regs; JB v SSWP (UC) [2018] 360 (AAC); KG v SSWP (UC) [2020] UKUT 307 (AAC); chs K1-K9 ADM
New-style ESA s11J WRA 2007; regs 50-61 ESA Regs 2013; ch V7 ADM
 »
2     Ch K2 ADM; ADM V7080; S v SSWP [2017] UKUT 477 (AAC); RR v SSWP [2017] UKUT 459 (AAC); DWP, Universal Credit Guidance, ‘Failure to attend - good reason’, v6.0, House of Commons library deposited papers, available at rightsnet.org.uk/universal-credit-guidance  »
3     paras J3257 and K2054-58 ADM; DWP, Universal Credit Guidance, ‘Complex needs’, v18.0, and ‘Home visits’, v12.0, House of Commons library deposited papers, available at rightsnet.org.uk/universal-credit-guidance »
4     s12 SSA 1998; regs 14 and 51 UC,PIP,JSA&ESA(DA) Regs »
5     General s28 WRA 2012; regs 6 and 115-119 UC Regs; ch L1 ADM
Recoverability s71ZH(1)(a) SSAA 1992; DWP, Benefit Overpayment Recovery Guide, para 5.86 and Chapter 8
 »
New-style employment and support allowance
The rules about sanctions for new-style ESA are the same as for UC (see here).
If you are experiencing hardship while you have a sanction for new-style ESA, you may qualify for a ‘hardship payment’ of UC (see here).1Reg 112 and Sch 11 UC Regs
 
1     Reg 112 and Sch 11 UC Regs »
Old-style employment and support allowance
Being sanctioned means that your ESA payments are reduced or stopped for a period because you have failed to take part in work-related activity without ‘good cause’. Good cause is widely defined and is likely to include many difficulties connected with a mental health problem. You should be given at least five days to show you have good cause before any decision is made to impose a sanction.1Regs 61 and 63 ESA Regs; reg 8 ESA(WRA) Regs
You can challenge a sanction decision through mandatory reconsideration and appeal (see Chapter 17, particularly regarding time limits).2s12 SSA 1998; regs 3ZA and 28 SS&CS(DA) Regs You can also apply for a reduced-rate payment of ESA called a ‘hardship payment’ if you struggle financially while you are sanctioned. The amount you can get is fixed and you do not have to pay it back.3Regs 2(1), definition of ‘hardship payment’, and 64A-64D ESA Regs; regs 16A-16C SS(LB) Regs
 
1     Regs 61 and 63 ESA Regs; reg 8 ESA(WRA) Regs »
2     s12 SSA 1998; regs 3ZA and 28 SS&CS(DA) Regs »
3     Regs 2(1), definition of ‘hardship payment’, and 64A-64D ESA Regs; regs 16A-16C SS(LB) Regs »
Other financial support while sanctioned
When you are sanctioned, applying for a hardship payment (see above) is a critical step in getting financial support. You might also be able to get help from:
    •a local authority’s welfare assistance scheme;
    •a food bank or charity providing free clothes, furniture or household goods;
    •a grant-giving charity.