Sunday, September 29, 2013

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

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 pending 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 demands 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.

Child Poverty Action Group

Sanction busting – part 2

Thanks to claimant activists, it is now possible to provide some more explicit advice which may be of assistance to any JSA claimant who was sanctioned for failing to participate in the Work Programme. A freedom of information request has revealed the standard letters that were used to inform claimants that they must participate in the Work Programme. Copies of these letters are available on the CPAG website linked to this article. Slightly different letters have been used at various times. However, in explaining to JSA claimants the consequences of failing to take part in the Work Programme, all of them use the same wording:

If you fail to take part in the Work Programme without a good reason, your jobseeker’s allowance could stop for up to 26 weeks. You could also lose your national insurance credits.

For the reasons explained below, the current state of the law is that this wording is not adequate to allow a sanction to be imposed when a claimant subsequently fails to participate in the Work Programme. All claimants who have been sanctioned following receipt of such a letter should be advised to submit a (late) appeal if within the maximum time limit (13 months from date of sanction decision), or to seek an official error revision. It appears that tens of thousands of such claimants must have been sanctioned unlawfully: 46,650 sanctions were imposed for failure to participate in the period up to 30 April 2012.1

Child Poverty Action Group