Lack of commitment?
[Note: this article has been amended post publication, on 10 March 2020, in order to: (a) correct a mistake in saying there was no primary power to make regulation 16 - that power is in section 4(2); and (b) make it more clear that the workcoach has to specify the method of acceptance of the claimant commitment. This version therefore differs from the print version]
Martin Williams discusses issues and tactics for challenging decisions to refuse or end entitlement to universal credit (UC) on the ground that a claimant commitment (CC) has not been accepted.
A condition of entitlement
Accepting a CC is a basic condition of entitlement to UC (under section 3(1)(a) and 4(1)(e) of the Welfare Reform Act 2012). That has the important consequence that where a claimant is held not to have accepted her/his commitments, s/he is not entitled to UC at all. If s/he is at the stage of making a claim, then the claim will be refused; if s/he has an existing award, then it should come to an end.
Under the legacy system, such a rule only really existed in respect of jobseeker’s allowance claimants (with reference to the jobseeker’s agreement that was rechristened in DWP spin, but not in law, as a CC). That meant that often much more vulnerable claimants (such as those on employment and support allowance or income support) did not have to meet this procedural condition.
Recently released figures obtained following a Freedom of Information request1 show that for the first 10 months of 2019, 8–11 per cent of claims were refused for reasons to do with a claimant commitment. The majority of those were for failure to book or attend a claimant commitment interview (which arguably does not in itself give grounds to refuse a claim – see below and ‘“Closing” universal credit claims’ in Bulletin 260). Nonetheless, 1–2 per cent of all claims are refused even after the appointment is attended. Given the scale of the problem, this is an important area for advice.
Accepting a commitment
Section 14 of the Act explains what a CC is and contains some important additions on accepting a commitment.
Subsection (1) says the commitment is a record of a claimant’s responsibilities which according to subsection (2) should be ‘prepared by’ the Secretary of State (in practice, the work coach) and can be reviewed and updated as the work coach thinks fit.
Subsections (3) and (4) contain some brief requirements as to the contents of the commitment the claimant must comply with – what the work coach thinks fit and anything else considered appropriate.
Most importantly, however, subsection (5) states that a CC is only accepted if the claimant ‘accepts the most up-to-date version of it in such manner as may be prescribed’.
The power in section 14(5) to make regulations on the method of acceptance has been exercised in regulation 15(4) of the Universal Credit Regulations 2013 (SI No.376) (the ‘UC Regulations’). This requires the claimant to accept the commitment either electronically, over the phone or in writing – this wording means 2 Advice for Decision Makers at J1007 also confirms this is the view of the Secretary of State for Work and Pensions that the work coach must specify which one of these methods is to be used. In practice, the method specified is via a ‘To Do’ action placed on the electronic journal where the claimant must click a button indicating acceptance of her/his commitment.
Date of acceptance
Obviously, when a claim for UC is first made there will be no CC in existence – and so, strictly speaking, the conditions of entitlement would not be met. To get around that difficulty, regulation 15(1) and (2) allows a claimant to be treated as having accepted a commitment from when s/he has first claimed, provided that s/he goes on to accept the commitment within a specified period. That allows for a claimant to attend a commitments meeting with her/his work coach at which the ‘personalised’ commitment can be drawn up.
The standard period specified is said in the guidance to be within seven days of the commitment having been created.3 The seven days can be extended.
Regulation 15(3) allows time to be extended by the work coach where the claimant has requested a review of an action proposed as a work search requirement or work availability requirement or a limitation of such a requirement and it is considered reasonable to extend the time. In official guidance, paragraphs J1015 and J1016 of Advice for Decision Makers suggests that is the only occasion on which the seven days can be extended.
However, operational guidance4See note 4 and states repeatedly that where a claimant has ‘complex needs’,5On which see ‘UC and complex needs’, Welfare Rights Bulletin 271, August 2019 the claim should not be ‘closed’ – ie, refused. It is not clear what the basis of this advice to DWP staff is. It may be that in such cases the DWP extends the specified period of time or that it regards someone as coming within regulation 16(b) (see further below).
In addition, the same operational guidance also discusses an additional seven calendar day ‘cooling-off period’ where a claimant states s/he will not accept her/his commitment. That period does seem to be in addition to the seven days given to accept the commitments in any event.
Interestingly, there is no rule which refers to a claimant being treated as having accepted a new or updated CC if s/he does so within a specified period. On the face of it, that looks like a claimant will fall foul of the requirement to have accepted her/his most up-to-date commitment (section 14(5)) if s/he does not accept it instantly. That cannot be right, and it is arguable that the language of regulation 15(1), although seeming primarily to apply to initial commitments, would have to be stretched to accommodate an updated commitment. Alternatively, this could be sorted out administratively by the work coach stating the new document would be regarded as becoming the most up-to-date commitment only from a specified future date.
Regulation 16 of the UC Regulations provides for two situations in which the requirement to have accepted a CC is simply disapplied. This regulation is made under section 4(2) which allows for regulations to create exceptions to the requirement to meet any of the basic conditions.
The two scenarios where an exception to the CC requirement is made are:
a. where the claimant lacks the capacity to accept her/his commitment; or
b. where there are exceptional circumstances which make it unreasonable to expect the person to accept the commitment.
This second provision is of potentially wider application and some considerations for advisers on the types of arguments that could be advanced are set out below.
Issues in challenging decisions
Given that a refusal to accept a CC can lead to nil entitlement, good basic advice is usually to accept it first and ask for are view of problematic content later. But what if the CC has (allegedly) not been accepted? When it comes to assisting a claimant with a challenge against a decision which refuses a claim or removes an award of UC on the grounds that a CC is not accepted and therefore the basic condition of entitlement in section 4(1)(e) is failed, understanding the above rules is vital. A structured way to think through potential arguments is set out below.
For a claimant to have failed to accept a commitment, then there must be a commitment which has been prepared by the work coach (section 14(2)). It appears that some negative decisions are in fact based on a claimant not having attended her/his commitments meeting. If that has meant the work coach has not drawn up a commitment and asked the claimant to accept it, then section 4(1)(e) cannot bite.
Once it is established that a commitment did exist, the next question will be whether the claimant did fail to accept it. On this point, potential6Some of these points are speculative and designed to assist advisers in constructing arguments before the First-tier Tribunal points might be:
there should be seven clear days between the commitments interview and any negative decision. In some cases, the decision to refuse the claim has been taken during the seventh day – that deprives the claimant of the time specified in order to accept her/his commitment;
whether the work coach should have offered an alternative method of acceptance to the one in fact offered – ie, by telephone instead of electronically. It is not clear that a tribunal could overturn a decision on this basis. However, for example, if the claimant could not use the prescribed method chosen by her/his work coach, then it may be that the tribunal could allow the appeal on the basis that it was unreasonable to expect a commitment to be accepted in this circumstance;
in cases where the failure is said to be a failure to accept the most up-to-date commitment, then it may be useful to compare the contents of the previous, and allegedly more recent, commitment. In a case where, for example, a claimant had moved to a group with less conditionality (eg, had been found to have limited capability for work-related activity and had previously been subject to all work-related requirements), then what is said to be the most up-to-date CC will simply contain a subset of what had previously been agreed. It could in such a case be argued that the claimant’s acceptance in the earlier document that s/he would do all of the things that are in the new one mean the claimant has in substance accepted her/his most up-to-date commitment.
In the absence of success under any of the above arguments, or lack of capacity, then claimants will need to try and rely on the regulation 16(b) rule that ‘exceptional circumstances make it unreasonable’. The reference to its being unreasonable ‘to expect the person’ to accept means it is about the particular claimant’s circumstances and these will have to be taken into account.
Potential arguments at this stage could include the following.
The claimant had a lack of ability to use the method prescribed in the time available – here as much detail will need to be given about, for example, why the claimant could not access the internet in the period given. Suggestions by the DWP that a claimant should have obtained help should be countered at the outset with explanations of why that was not possible (or if help was sought, why it was not forthcoming).
The claimant had a reasonably held mistaken belief s/he had accepted the contents or did not need to do so. Many advisers will have come across cases where a claimant thought, following her/his commitments meeting, that s/he had given assent to the CC at that meeting. Given that verbal acceptance is not permitted by regulation 15(4) as a method of acceptance, then this is a problem. In such cases, an argument s/he thought s/he had done all that was needed may succeed but will depend on the reasonableness of holding that view (which will in turn depend on what was said at the meeting, the claimant’s level of understanding, etc.) throughout the period during which the claimant was given to accept the commitment (here, evidence of why the claimant did not spot her/his ‘To Do’ requirement on the journal may be needed).
The commitment contained unlawful conditions – if the claimant was being asked to accept a CC which set out requirements which could not lawfully be imposed. For example, consider a claimant who was moving from employment and support allowance in the support group to UC, but regulation 19 of the Universal Credit (Transitional Provisions) Regulations 2014 (SI No.1230) had not been correctly applied and s/he was thought to be in the all work-related requirements group (section 22 of the Act) instead of the no conditionality group (section 19) and hence had a work search requirement on the face of her/his commitments. Why is it reasonable to expect the claimant in this circumstance to accept that document? Potentially, the Secretary of State could argue that the claimant should have asked for a review of the contents (regulation 15(3)).7Given that failure to accept commitments can lead to nil entitlement, then generally the advice is to accept the commitments first and ask for a review later – particularly given that failure to perform commitments is not itself the cause of a sanction. But if the contents are clearly unlawful in any event (rather than it being an example of the work coach not using discretion in the way a claimant would have liked), that seems a weak position.
2      Advice for Decision Makers at J1007 also confirms this is the view of the Secretary of State for Work and Pensions  »
5     On which see ‘UC and complex needs’, Welfare Rights Bulletin 271, August 2019 »
6     Some of these points are speculative and designed to assist advisers in constructing arguments before the First-tier Tribunal »
7     Given that failure to accept commitments can lead to nil entitlement, then generally the advice is to accept the commitments first and ask for a review later – particularly given that failure to perform commitments is not itself the cause of a sanction. »