Ever increasing: conditionality and sanctions

Will Hadwen looks at planned changes to conditionality and sanctions in the universal credit (UC) system.

Ostensibly concerned by the number of benefit claimants who are not working (including because of long-term ill health), the government announced a ‘Back to Work plan’ in November 2023.1‘Employment support launched for over a million people’, DWP press release, 16 November 2023 (‘Back to work press release’); HM Treasury, Autumn Statement 2023, 22 November 2023 (‘Autumn Statement’), paras 3.21-3.33 The proposals are considered here in the context of other changes which had already been announced, affecting disabled people, parents and those in part-time work.

The Back to Work plan sets out a range of interventions for those expected to look for work.2Back to work press release; Autumn Statement, paras 3.26 and 5.15-5.18 All of these initiatives increase the potential for both sanctions (eg, for not participating in an interview with a work coach, or not taking all reasonable action to find work), and termination of the UC award (due to not accepting updated commitments).

The government intends that a decision to end UC entitlement (inaccurately referred to as ‘claim closure’) will follow a failure by the claimant to accept a job, work experience or ‘other intensive activity’ when they have reached the end of the Restart scheme (an enhanced support scheme for unemployed claimants).3Autumn Statement, para 3.26, last bullet point At the time of writing, it seemed possible the mechanism for this would be a claimant’s refusal to accept the new conditions in a revised claimant commitment – ie, which can happen under existing provisions.4ss4(1)(e), 14(5) and 15 Welfare Rights Act 2012 If so, that can lead to ‘closure’ of a joint claim even where only one partner has refused to accept revised conditions.5This seems to be confirmed in an email from the DWP to CPAG, January 2024.

It appears that the earliest this is likely to affect claimants is ‘late 2024’6Autumn Statement, para 5.16 and possibly not even then, as it requires a claimant to have completed Restart and have been unemployed for 18 months.7Autumn Statement, paras 3.27 and 5.16

The proposals also affect those on ‘open-ended’ sanctions – sanctions which affect those who fail to attend or participate in an interview, fail to meet work preparation requirements, or fail to take particular specified action. These sanctions continue until the claimant ‘complies’ with the requirements.

For those claimants getting a standard allowance only, the proposed change is that UC will end if an open-ended sanction has lasted for six months. According to statistics, in August 2023, 35,000 sanctioned standard allowance-only claimants had not complied with requirements for over six months, and had a nil award as a result.8DWP, Sanctioned Disengaged Claimants Management Information, April 2019 to August 2023, 21 December 2023

It appears that amendments to legislation would be required to terminate UC in this situation. It is not clear how couples claiming UC jointly will be affected where only one of them is sanctioned (this would usually result in the loss of 50 per cent of the standard allowance).9However, the DWP has said in a meeting with stakeholders (DWP Operational Stakeholders External Forum, 16 January 2024) that those who have complex needs or vulnerabilities will be exempt from claim closure.

For those who have to look for work on UC, ‘expected hours’ are the hours a claimant is required to both look for and be available for work. In October 2023, the ‘expected hours’ of the ‘responsible carer’ of a child aged three to 12 increased to a maximum of 30 per week.10‘Employment boost for thousands of parents on UC’, DWP press release, 25 October 2023 (The responsible carer must be nominated where a couple both have responsibility for children).

This was achieved via a change to guidance; the regulations continue to say that expected hours should be compatible with caring responsibilities or school hours.11Reg 88 Universal Credit Regulations 2013 No.376 (‘UC Regs’) Despite the extension of free childcare in some parts of the UK,12HM Treasury, Spring Budget 2023, 15 March 2023, para 3.46 30 hours may not always be practically compatible with these responsibilities. In theory, negotiation with a work coach could achieve a lower figure (expected hours should be tailored to personal circumstances) but is unlikely to be easy.

This comes on top of changes for those parents (responsible carers) of children aged one or two. Although there is no change to what they are required to do (meet with their work coach and once the child is two, engage with work preparation if required), since July 2023 they have been required to do this more frequently (meeting a work coach every three months when the youngest child is one, and every month once the youngest child is two).13‘Thousands of parents to benefit from more work coach support’, DWP press release, 24 July 2023

Claimants in the UC ‘all work-related requirements group’ who earn at least a certain amount, called the administrative earnings threshold (AET), do not have to look for or be available for work (the DWP may refer to this as being in the ‘light touch’ regime). At the time of writing, the AET for an individual claimant is £677 a month, based on the national ‘living wage’ for 15 hours a week. However, it is expected that this amount will rise, to be based on 18 hours a week. An amendment to the UC regulations will be needed to achieve this.14See reg 99(6) UC Regs

It is also possible to be in the ‘light touch’ regime on the basis of a partner’s wages or joint wages. In this case, the figure is currently £1,083, based on 24 hours a week. This is expected to rise to be based on 29 hours a week.

This change was announced in the Spring Budget of 2023, but implementation has been delayed. That Budget also announced that the couple AET will eventually be abolished.15HM Treasury, Spring Budget 2023, para 3.24; see also ‘Policy decisions’, Table 4.1

These changes will mean the requirements to look for and be available for work will apply to a larger group of people, who will no longer be in ‘light touch’. Meanwhile, for those still earning enough to be in light touch, mandatory work preparation will be required at some point in 2024.16Answer to named day written question UIN 201848, 25 October 2023

Plans to support sick and disabled people to stay in or find work17Autumn Statement, paras 3.29-3.36 may mean that more people are referred to mandatory support while waiting for a work capability assessment – for example, under the ‘work preparation’ requirement (which can also affect those who have limited capability for work status only).

Considered in the context of a tightened work capability assessment likely to lead to fewer limited capability for work-related activity (LCWRA) determinations,18Autumn Statement, para 3.35 these measures too could lead to sanctions for some who do not comply.

As can be seen, conditionality and the rate and harshness of sanctions look set to increase even further under current government plans. In addition, the government plan in general to ‘strengthen’ the sanction regime.19Autumn Statement, para 3.25 Sanctions had already increased post-pandemic to nearly 6.5 per cent of those UC claimants who could be sanctioned in August 2023.20DWP, Benefit Sanction Statistics to August 2023, 14 November 2023; the exact statistic is 6.48 per cent of those in a conditionality group where sanctions can be applied – ie, not the no work-related requirements group. In this context, clear information about the possibility of negotiating or requesting a review of a claimant commitment (or even challenging it via judicial review21cpag.org.uk/welfare-rights/support-advisers/support-advisers-england-and-wales/support-judicial-review-process/template-letters/judicial-review-pre-action-template-letters-universal-credit), as well as the right to challenge sanction decisions (with no time limit) will be crucial. It may be useful to first check a claimant’s possible work-related requirements using the tool ‘Checking your universal credit work-related requirements’ at cpag.org.uk/welfare-rights/tools-templates/universal-credit-tools-and-templates.