Working the work programme: sanctions

 

Martin Williams considers some implications of recent caselaw about sanctions and the Work Programme.

Introduction

Most challenges to sanctions for failing to participate in the Work Programme are probably brought on the ground that the claimant had a ‘good reason’ for the failure. However, recent judgments of the Court of Appeal and Upper Tribunal indicate some other avenues for advisers to make use of in challenges. Note: although this article sets out other grounds to challenge sanctions, ‘good reason’ arguments should always be made, when available, as they remain those most likely to persuade decision makers to change the decision.

A jobseeker’s allowance (JSA) claimant is only required to participate, and hence can only fail to participate, where s/he has been given a written notice that includes details of what s/he is expected to do to participate.1 Reg 5(1)-(2) JSA(SAPOE) Regs In R (Reilly and Wilson) v SSWP [2013] UKSC 68 (now best referred to as Reilly (No.1)), the issue of the adequacy of the notices given to Mr Wilson was extensively considered to check whether they complied with this and the other requirements. Of most, ongoing, relevance was what the Court had to say about the details of the activities provided:

Since then, the DWP has changed the notices. A standard first letter is now issued when the claimant is referred onto the scheme. That letter should provide enough detail to cover all of the issues which must be notified apart from the ‘details of what the claimant is required to do by way of participation’. The claimant’s participation requirement notification is then supposed to be issued by the Work Programme provider in a ‘MAN’ letter (the letter also re-states various other bits of the information required to be notified). Examples of what the DWP expects providers to put in such a letter are given in Chapter 3a of the Work Programme Provider Guidance.2

Advisers can argue that claimants who have received such inadequate notices cannot be sanctioned for failure to participate on the ground that no requirement arises where the notice is inadequate. Note: such arguments, however, are dependent on facts and judgement, and cannot guarantee that a sanction will not be applied.

A further issue that may arise is where a claimant has, since being referred onto the Work Programme, had a gap in entitlement to JSA – eg, due to being held not to have been actively seeking work. The initial notice issued by the DWP referring the claimant onto the Work Programme ceases to be valid as soon as entitlement to JSA ceases. Reg 6(3)(b) JSA(SAPOE) Regs For that claimant to again be required to participate in the Work Programme, a new notice needs to be issued.

An issue which the Supreme Court dealt with in Reilly (No.1) has come to be known as the ‘prior information requirement’. This is short-hand for the principle that fairness requires a claimant to be given sufficient information about the activities s/he is required to do before the requirement is imposed to allow her/him to make representations which might influence the decision as to whether to require her/him to do the activity. In Reilly (No.1), this principle was considered in relation to information that needed to be given before referral onto the schemes considered there.

This provoked some further discussion in the subsequent and most recent Court of Appeal case, Jeffrey and Bevan v SSWP [2016] EWCA Civ 413 (heard with Reilly and Hewstone v SSWP – see p10 of Welfare Rights Bulletin 252 for full details). When Mr Bevan was before the Upper Tribunal,3 SSWP v TJ (JSA) [2015] UKUT 56 (AAC) it held that the requirement to provide prior information would almost never help a claimant to defeat a sanction imposed for failure to attend the first meeting with aprovider – ie, at the point of referral onto the scheme. However, it had also seemed to suggest that the prior information requirement would not apply at all before the claimant was then mandated to do each subsequent specific activity.

The Court of Appeal now confirms that it will be rare for a claimant to be able to rely on a failure to provide prior information at the stage of referral onto the Work Programme (para 172). However, the Court of Appeal explains that the requirement to provide prior information relates to each activity a claimant is subsequently mandated to perform:

Although the Court expressed doubt about ‘whether the Work Programme as operated in fact fails to give claimants such information’, the door is now firmly open for advisers to argue in a particular case that a claimant was not given sufficient information about an activity s/he was mandated prior to the mandation being issued. In CPAG’s experience, it is not uncommon for claimants to first find out about activities they are to be required to undertake from the mandation letter itself, without any prior discussion having taken place (indeed one case, albeit of mandatory work activity, involved a claimant with a medically documented arthritic condition being asked to perform 30 hours a week ground work in a park – the need to perform the activity having been presented to the claimant as a fait accompli). In these cases, everything depends on what objections claimants might have raised had they had sufficient information of the activities they were to be asked to perform, and of the guidance to Work Programme providers.

Checking with the claimant whether s/he did in fact fail to do what s/he is alleged to have done is important. In some cases, providers have notified the DWP that claimants have failed to participate, when what has really happened is that the attendance register was not completed properly for some reason. In other cases, what claimants are said to have done (or not done), do not amount to a failure or cannot be evidenced. For example, in a recent case CPAG helped with, the claimant was said to have left the session early and to have presented a doctored travel receipt – it transpired the provider could not say how early he had left and the DWP accepted that the travel receipt issue was irrelevant. Given that DWP notifications imposing the sanction do not contain sufficient information to determine what the claimant is alleged to have failed to do, it can be useful to obtain a copy of the WP08 form the provider sends to the DWP to report an alleged failure.

SA v SSWP (JSA) [2015] UKUT 454 (AAC) is related to a sanction for failing to comply with a jobseeker’s direction but it is also relevant to Work Programme sanctions. The first point to take from the case is that to justify a sanction for failure to participate in the Work Programme, there needs to be a clear finding that the claimant has in fact failed to participate. The second point is that the judge held, on the facts of the case, that arriving 10 minutes late for a one-hour CV writing course did not constitute a failure. The case thus highlights that there are instances where one must look carefully at what has happened and the surrounding factors to determine whether it constitutes a failure to participate.

A final worthwhile point to remember is that there are, in effect, no time limits to asking for a revision of a sanction decision.JSA: 4 reg 3(6) SS&CS(D&A) Regs; ESA: reg 3(5C) (see definition of “failure determination” in reg 1(3))

The lack of a time limit, coupled with the escalating nature of sanctions (for JSA claimants four weeks and then 13 etc), means it is wise to consider the viability of a challenge to all previous sanction decisions – even if the current sanction is not overturned, if a previous sanction is reversed, the length of the current one can be reduced. See, for example, the recent decision in MH v SSWP (JSA) [2016] UKUT 199 (AAC).

More information about challenging sanctions is available at Ask CPAG

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