Labour market conditions and jobseeker’s allowance

 

Beth Lakhani and Edward Graham examine the labour market conditions for jobseeker’s allowance (JSA), when and how the requirement to be actively seeking work and available for work applies and what flexibilities are built into the rules.1 For a complete list of all the rules, see p404 of CPAG’s Welfare Benefits and Tax Credits Handbook

Although primarily designed as a benefit for able-bodied claimants who are unemployed and looking for work, a number of changes have taken place in the last few years which mean more groups of people have to claim JSA. For example:

The Regulations dealing with JSA have always made provisions for claimants who are sick or disabled, and for those with caring responsibilities, so both of the above groups can take advantage of these flexibilities in the labour market conditions.

Note also that for ‘joint-claim couples’ of income-based JSA, both members of the couple will normally have to meet labour market conditions. See CPAG’s Welfare Benefits and Tax Credit Handbook, p381 for more details.

These require the claimant to:

It is important to note that these are conditions of entitlement. If the claimant fails to meet them, s/he will not be entitled to benefit rather than be subject to a sanction. At the point of claim, if a person fails to satisfy these conditions, s/he will not receive benefit; if there is doubt about her/his continuing entitlement, her/his benefit is suspended. S/he may then have to claim hardship payments.

This is broken down into a number of tests:2 s6 Jobseekers Act 1995

Being willing is a test of the desire and attitude to work, normally assessed via the ‘actively seeking’ rules.

Being able means that the claimant is able to take up work in the UK – eg, if a claimant’s immigration status prevents her/him from working, s/he cannot be available for work.

Immediately means s/he can act on the offer of a job straight away – a claimant cannot do this if s/he is away from home and there Is no way for Jobcentre Plus to make contact.

The final requirement means that the claimant will take up any employment, so s/he cannot restrict her/himself to self-employed work. It also means that, in theory, the claimant has to be able to do any job for up to 40 hours in any part of the country.

Clearly it would be completely unreasonable to expect claimants to take up employment at the other end of the country at less than a day’s notice, so the rules allow claimants to put a number of restrictions on their availability.

However, usually a person will still have to be available for work in such a way that s/he has reasonable prospects of getting a job. Crucially there are some exceptions to this last requirement and the ways in which availability can be restricted is extensive.

Those claimants with a ‘usual occupation’ are allowed a permitted period of up to 13 weeks when they can restrict their availability to the work they usually do and at levels of pay they would normally receive.3 Reg 16 JSA RegsHowever, a usual occupation is not defined and only those with recent and/or longstanding work or training in a particular occupation are likely to be able to agree such a restriction with the DWP. It will not help claimants who have no recent job experience.

A claimant can impose restrictions relating to hours available, pattern of work, type of activity, terms and conditions and location as long as the restrictions are reasonable in the light of their physical or mental condition. It does not matter that these may leave the claimant with no reasonable prospects of employment.4 Reg 13(3) JSA Regs If, however, s/he then goes on to impose other restrictions, the reasonable prospects test will apply in the light of all the restrictions. Actively seeking work steps must also take account of the claimant’s health when assessing the appropriate nature of the steps s/he takes to seek work.

There have always been disabled people who have chosen to claim JSA, but the numbers are likely to be swelled by the many thousands of claimants forced onto JSA by the migration (or reassessment as the DWP calls it) from IB to ESA that is currently underway. It is vital that such claimants are aware of their rights to restrict availability, and that the DWP applies the law correctly to enable such claimants to maintain JSA claims without fear of having unrealistic demands placed upon them regarding looking for work.

Caring responsibilities mean looking after a person who is member of the household or a close relative and who is either a child under 16, someone over pension age, or someone who needs care because of her/his mental of physical condition.5 Reg 4 JSA RegsIncluded in this group will be lone parents unable to claim IS, members of couples with children who will in future have to be available for work and carers who cannot qualify for carer’s allowance.

Claimants with caring responsibilities are only required to be available for work within one week, and to be available for an interview within 48 hours. Those with responsibilities for children, who can show it would be unreasonable (arranging childcare an obvious example) to expect them to take up a job within a week, only need be available at 28 days’ notice, to take up a job and similarly to attend an interview at a week’s notice.6 Reg 5 JSA Regs

A claimant with caring responsibilities does not have to be available for up to 40 hours work, as long as they are available for as many hours as their caring responsibilities allow (and for at least 16 hours) and still have a reasonable prospect of securing employment. The reasonable prospects test will not apply to those with responsibilities for children where the number and type of vacancies within travelling distance of the claimant’s home mean s/he would not have such prospects.

Lone parents with a child under 13 can also restrict their availability to their child’s normal school hours. School hours here continue during the holidays, which could cause problems unless the lone parent can be treated as available during the holidays (see below).

Claimants can place restrictions on the type of work, location, hours, days and pattern of working, terms and conditions of employment including the rate of pay (first six months only). However, they will have to be able to show they have a reasonable prospect of gaining employment despite those restrictions. Normally a person must be available from Monday to Friday but claimants can agree different patterns of availability. But if they are not available on one of their agreed days, they will treated as if they were not available for the whole week. Types of work can be limited accordingly to take account of religious belief, or where it would be contrary to a person’s conscience.

Claimants doing voluntary work only have to be available at a week’s notice, and those providing paid or unpaid services at 24 hours’ notice – ie, those who are looking after another person but who don’t meet the criteria of caring responsibilities above. Claimants in paid part-time work must be available immediately after the expiry of the period of notice they must give to leave that job and take up full-time work.

Unless otherwise stated, if a claimant places restrictions on availability, s/he must still have a reasonable prospect of securing employment.7 Reg 10 JSA RegsIt is the cumulative impact of restrictions that count and the DWP must consider:

This is essentially a practical test of the claimant’s active search for work and should obviously be consistent with any availability restrictions agreed by claimants.

It requires a claimant to take such steps as s/he can be reasonably expected to have to take in order to have reasonable prospects of securing employment.8 s7 Jobseekers Act 1995

A person is expected to take more than two steps a week, but it may not be possible to do this every week.

A ‘step’ can include, but is not limited to, making applications for jobs, getting information about jobs, preparing a CV and registering with an employment agency. It is crucial that claimants keep a record of the steps they have taken. It is also important to note that some steps can be ignored by the DWP – eg, if a claimant acts in an abusive manner at an interview, or spoils a job application form.

When deciding what steps are reasonable, the DWP must consider all the circumstances applicable to the claimant including:

In many circumstances, claimants can be treated as available and/or actively seeking work (ie, not actually having to be available or taking any steps, but be treated as if they did), and so qualify for JSA.9 Reg 14 JSA Regs In most situations where a person is treated as available, s/he will also be treated as actively seeking work if the circumstances which allow her/him to be treated as available continue for at least three days in a particular week.10 Reg 19 JSA Regs

Claimants with caring responsibilities can be treated as available in a variety of circumstances, including when they are:

There are also some very limited circumstances in which claimants who are studying full time, attending court, in prison, or providing assistance during an emergency can be treated as available for work. A claimant who is temporarily away from home can be treated as actively seeking work for two weeks a year, but s/he must still be available for work.11 Reg 19 JSA RegsThis can be used, for example, by someone having a holiday within Great Britain.

Claimants who are temporarily away from Great Britain for up to two weeks getting hospital treatment, or who are sick, can be treated as available for two periods of two weeks a year, as long as they make a declaration and can provide some proof that they were sick. This will not apply to claimants who are sick and who were entitled to ESA in the preceding

12 weeks, or IS as sick, IB, severe disablement allowance or statutory sick pay in the preceding eight weeks.12 Regs 55 and 55A JSA Regs

The rules also allow some latitude for claimants who have to deal with:13 Reg 14 JSA Regs

The claimant is treated as available for up to a week and this is allowed on only four occasions in one year. This is a somewhat unrealistic limit and cannot be considered adequate where, as below, the domestic emergency may affect a family with a child.

Where the first two situations arise and they affect a claimant with caring responsibilities for a child, s/he can be treated as available for up to eight weeks, but this is allowed only once in a year (and this is counted as one for the four occasions). There is a strong argument that these provisions are insufficient where, for example, the death is that of the child’s father and it may require a much longer period of time before a mother could feel that it is safe to leave the child in childcare (however good the quality) because of the distress the death may have caused. Practical disruption to the ways of running the household will also take up time.

The final part of the labour market conditions is that the claimant has a current jobseeker’s agreement in which her/his restrictions on availability are listed and which demonstrates that, despite those restrictions, the claimant is available for and actively seeking work.14 s1(2)(b) Jobseekers Act 1995

If a claimant has a dispute about a jobseeker’s agreement at the start of a JSA claim (eg, the DWP officer will not accept some of the restrictions s/he wishes to place), it is advisable that the claimant signs an agreement s/he is unhappy with rather than refuse to sign it at all. If s/he refuses to sign it, s/he will not have a valid agreement and will not be entitled to JSA (although s/he can appeal this decision). If s/he signs and then asks for it to be varied, any dispute can be referred to a decision maker and a negative decision can be appealed. At least s/he will receive JSA while pursuing the appeal.

Note that the following restrictions do not have to be in a jobseeker’s agreement:

There is no doubt that the JSA labour market conditions are very strict and could place considerable pressure on new groups of claimants, such as lone parents and those with health problems. However, flexibilities do exist and such claimants should be advised by the DWP accordingly where the flexibilities are appropriate to their individual circumstances.

It is as yet unclear how the proposed introduction of universal credit, and the claimant commitment that will precede it, will affect the detailed rules about availability for and actively seeking work that are a core component of JSA. In the meantime, these rules will continue to impact upon an increasing number of potentially vulnerable claimants. For example, the DWP is consulting on whether claimants threatened with domestic violence or experiencing actual violence (including psychological threats or abuse) should be treated as available for a period of up to 13 weeks, which could be extended if the claimant is still in danger. This would be in addition to the existing domestic emergencies provision and is a result of a parliamentary commitment to address the issue during the passage of the Welfare Reform Act 2009.

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