Sanction busting – appealing Work Programme sanctions

 

Martin Williams discusses the legal and practical issues involved in challenging decisions which impose a sanction on JSA for failure to participate in the Work Programme.1 For basic information about the Work Programme, see our factsheet at

Note: Since this article was written we have published a second piece which specifically looks at what to do if advising a claimant who received a similar letter to that sent to Mr Wilson, together with a draft notice of appeal to use in such cases.

The various private companies contracted to deliver the ‘Work Programme’ on behalf of the DWP collectively refer tens of thousands of cases each month to the decision maker so that imposing a sanction on their benefit can be considered. The statistical and anecdotal evidence available suggests that very few decisions to impose a sanction are appealed.

The remedy of an appeal is of course not really an adequate one to a claimant who has been sanctioned. Although if successful the claimant will receive payment of the jobseeker’s allowance (JSA) that was withheld, s/he will have had to try and survive without that money pend-ing the appeal (unless s/he can obtain hardship payments). This lack of a mechanism to dispute the imposition of a sanction before it is applied means that many claimants comply with de-mands placed upon them by Work Programme providers regardless of whether they are lawfully allowed to make those demands.

These difficulties aside, however, some people do manage to bring appeals against sanction decisions and it is important that welfare benefit advisors are in a position to assist them with these cases.

When this article was in draft form, judgment was given in the High Court case of R (Reilly and Wilson) v SSWP [2012] EWHC 2292 (Admin). This case sheds some light on possible avenues of appeal at the First-tier Tribunal (although it should be noted that both sides are proposing to appeal aspects of the judgment). The claimants in Reilly and Wilson challenged the overall lawfulness of the Work Programme schemes. However, what the Court said about the notice requirements that must apply before sanctions can be applied is incorporated. As such, this article is intended to be of practical and immediate assistance to advisers assisting claimants with sanction disputes rather than summarising the Reilly and Wilson case. A write-up of that case will appear in next month’s Bulletin.

This article uses the term ‘Work Programme’ as that is the most common of the ‘Employment, Skills and Enterprise’ schemes. However, the same rules and considerations set out below also apply to:

Different regulations Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011, SI No.688 apply similar notice requirements for the ‘Mandatory Work Activity Scheme’ and so this article is also relevant to appeals against sanctions for that scheme. The rules about sanctions connected to the Work Programme for employment and support allowance (ESA) claimants are different to those for JSA and not covered in this article.

In the following sections, the requirements that must be met before a decision maker can impose a Work Programme-related sanction are set out in italics (followed by discussion). On appeal, the tribunal should only uphold the decision if the decision maker can persuade it on the balance of probabilities that each of these requirements are satisfied. Below each requirement, some of the key considerations in whether this can be shown to be met are discussed.

As we shall see below, failure to participate (a key requirement for imposing a sanction) is de-fined as failing, without good cause, to do one of the things the notice tells a claimant to do by way of participation. Therefore, close regard to the sections in any properly issued notice that sets out the details of what the claimant is required to do by way of participation and comparison between those instructions and what the claimant has actually failed to do is likely to form a key element in many appeals.

Reilly and Wilson establishes that a claimant who has not been given a notice that contains all of the required elements cannot be sanctioned. The key question is what level of detail the notice must contain to satisfy the various elements?

The Court in Reilly and Wilson considered the level of detail the letter must provide to sat-isfy the third and fifth of the five requirements in the above box. The letter in that case simply said the sanction could be for a period of ‘up to 26 weeks’. Furthermore, it stated that a sanction ‘may’ be imposed rather than that if good cause was not found a sanction would be imposed, because the consequences of failure to participate had not been properly explained (ie, the fifth requirement had not been met). The judge rules (at paragraph 118) that this meant no sanctions could be imposed. See below on what constitutes a ‘failure to participate’ for a discussion on the level of detail the notice must provide about what a claimant is expected to do by way of participation (ie, whether the third requirement is met).

Section 20E(3)(a) of the Jobseekers Act 1995, allows for certain functions of the Secretary of State (ie, the decision maker) concerning the Work Programme, and similar schemes, to be contracted out to private providers. The regulations specifically provide that the sending of the notice may be done ‘by, and by employees of, such person, as may be authorised by the Secretary of State’. One issue that may arise in appeals against Work Programme sanctions is whether or not the particular Work Programme provider who has sent the notice has been authorised by the Secretary of State to issue the notices under consideration in the appeal. The Decision Makers Guide (DMG) at para 34776 suggests, but does not explicitly state, that the provider is only authorised to notify the details of what the claimant is required to do by way of participation. It is suggested that if the decision maker has not notified the claimant her/himself, but is reliant on a notice issued by a Work Programme provider, then evidence should be presented to the tribunal that this particular provider has been authorised to issue such notices. This is particularly so because in some cases the notice may have been issued by a subcontractor to the main company which is contracted to deliver the Work Programme. It is possible that authorising the prime contractor to send notices will not mean the various subcon-tractors are also authorised.

This is the key to when a sanction can be imposed: the claimant must have failed to do something which the notice makes clear s/he is required to do in order to avoid a sanction. This means that in an appeal close attention needs to be paid to what the claimant is alleged to have failed to do and a comparison made with exactly what it is the notice in-structs her/him that s/he is required to do.

It may be difficult to work out what constitutes a ‘failure to participate’. The DMG suggests that it means failing to ‘take part in’ but that does not add much to our understanding. It may be the case that the notice does not go into much detail about what is required – eg, stating a claimant must attend a training course. If a claimant is then said to have failed to participate because there is some specific thing s/he has not done that was not clearly stated as a requirement in the notice (eg, s/he has failed to join in with a warm-up exercise or has been critical of the tutor), this may not be correct. In Reilly and Wilson, Mr Wilson’s notice requiring him to participate said simply that he had to ‘complete any activities that [the provider] asks [him] to do’ (paragraph 122). He had also been given further information, verbally by the provider, about the number of hours he would need to attend etc. For Mr Wilson, it was said that he had not been given adequate notice of what he was required to do by way of participation. The judge held (at paragraph 122) that the information was ‘sufficient’. It is possible that this part of the judge’s findings in Reilly and Wilson will be challenged by the claimant on appeal, but at present it appears that sparse information of this kind can meet the requirement – it may be that the Court was wrong to hold that a notice that is required by regulations to be given in writing can be supplemented by verbally conveyed information. Advisers can still argue that on the specific facts of the cases they are assisting with the details of what is required are not adequate.

The DMG at para 34796 suggests that the notification of a failure can take place face to face or by telephone instead of being notified in writing. On appeal, the decision maker will have to prove that the claimant was notified (so even where oral notification is used, there will have to be a record). Furthermore, the wording of the regulation here is that the claimant must have been notified of ‘the’ failure and the purpose of this notice is plainly to allow the claimant to show s/he has ‘good cause’ for ‘that’ particular failure. Therefore, it is arguable that however the notice is given (whether orally or in writing), its content must be sufficiently detailed in stating what the alleged failure to participate is for the claimant to be aware of what might be relevant as to good cause. It is possible, dependent on the specific facts, that a system note that a claimant was notified of a failure will not serve to prove that s/he was told in sufficient detail of how s/he failed to participate. Finally, note that the giving of the notice that a claimant has failed to participate cannot be done by a contractor (so it is not enough for an employee of a Work Programme provider to tell a claimant s/he has failed to participate).

A claimant who shows s/he has ‘good cause’ for the failure to participate within five working days of being given the notice cannot be sanctioned. This also means that the decision to impose a sanction cannot be made until those five working days have elapsed (see also DMG 34795). One issue that may arise is the date on which a notice counts as having been ‘given’ to a claimant where it is in writing and sent in the post.

Unlike with other parts of social security law, there is no provision which deems a notice as having been given on the day it was posted; rather, a notice is regarded as having been given on the second working day after it is posted.7 eg 2(2) JSA(ESE) Regs 2011So if a notice of failure to participate is posted on a Thursday, it is deemed to have been received on the following Monday. The claimant would then have until the end of the following Monday to demonstrate good cause, so the decision to sanction could not be made until the day after that – ie, Tuesday.

Advisors will be familiar with ‘good cause’ tests within the benefit system. Effectively, good cause will exist if having regard to all the circumstances (including the claimant’s state of health and the information which s/he had received and that which s/he might have ob-tained) would probably have caused a reasonable person of her/his age and experience to act (or fail to act) as the claimant did.9 R(S)2/63 – approved in Chief Adjudication Officer v Upton [1997] EWCA Civ 1200

A further issue is what happens to a claimant who does have good cause but does not show this within the required five days – can the good cause be taken into account? The wording of the regulations suggests that a claimant who has failed to participate and who has not shown good cause ‘in accordance with regulation 7’ must be sanctioned. It is regulation 7 which imposes the requirement that the good cause must be shown ‘within five working days’. This may mean that a claimant who does have good cause but does not demonstrate this within the required period has to be sanctioned. However, it could also be argued that the reference back to regulation 7 does not incorporate the requirement that good cause must be shown within five days into what the claimant must do to avoid a sanction.

The DWP guidance deals with this issue by suggesting that:

The duration of sanction imposed is mandatory and depends simply on whether the claimant has already been sanctioned for a Work Programme-related issue within the last 12 months (the 12 months being measured from the first day on which a claimant was previously sanctioned); if the claimant has not been sanctioned previously within that period, then the sanction is for a two-week period.

Where a claimant has already had a sanction which started within 12 months of the date on which it is decided to sanction the claimant again, then the sanction will be for four weeks, unless the claimant had at any time prior to that been previously sanctioned, in which case it will be for 26 weeks. What this last point means is that a claimant may receive a two-week sanction on more than one occasion (provided the start date of the first sanction is over 12 months prior to the decision to impose the second sanction) and then receive the 26-week sanction if a decision is made s/he failed to partici-pate within 12 months of the start of the most recent sanction. In Reilly and Wilson (paragraph 116), the Secretary of State seems to have suggested that the 26-week sanction could only arise where the claimant had three failures within a 12-month period. It is not clear that this is correct – it may be that, provided the third sanction is within 12 months of the second, then a 26-week sanction is mandatory, even where the first sanction is more than 12 months ago.

On appeal against the imposition of a longer sanction, it may be worth considering whether an appeal (or a late revision request) can also be brought against any earlier sanctions. If the challenge to the earlier sanction succeeds, then the more recent sanctions may be reduced in length, even if the tribunal still finds that some sanction was appropriate.

Note also that the longest sanctions of 26 weeks can be curtailed 10 reg 8(7) & (8) JSA(ESE) Regs 2011 (to a minimum of four weeks) if the decision maker is satisfied the claimant has recomplied (either with the origi-nal requirement or some other notified require-ment), and this may be another way in which a claimant can avoid the full effect of a sanction. However, an amendment to the regulation from 31 October 2011 also suggests that if the claimant has already recomplied (ie, by commencing doing the thing which s/he has failed to do previously or by starting to do one of the other notified requirements – see reg 8(8)) be-fore the decision to impose a sanction is made, then the sanction period should be reduced from 26 to four weeks in any event.

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.