The rise of discretion/the retreat of protection in law

I know that UC will give JC+ a lot more discretion.

Would this be correct?:

At the moment, courtesy of Reg 13(2) JSA Regs and Reg 31 JSA Regs, jobseekers may include in their JSA Agreement or Claimant Commitment the fact that they have objections to certain types of work (sincerely held conscientious view &c.) they may express this ahead of any attempt to get them to apply for such work, and it’s a required part of the agreement.

Under UC, this protection does not exist in Regulations and does not arise in any materials concerning the Claimant Commitment: it is only covered by UC guidance on ‘good cause’.

And so any such discussion is far more likely to take place not at the start of the claim but after the claimant has rejected a particular type of work and has perhaps been sanctioned (at the highest level)

Claimants have thus been stripped of legal protection and are subject only to JC+ discretion and guidance.

I remember this case from July 2013

A Charedi man has won a landmark appeal against the Department for Work and Pensions after he was denied jobseeker’s allowance for over six months and told he must work on Shabbat.

A tribunal judge said [the appellant] was wrongly refused the £56.80-per-week benefit by the DWP at a hearing of the social entitlement chamber, which adjudicates benefits disputes.

Ordering the government department to back-pay over £1,500 of the benefit, tribunal judge David Hewitt called on other Jewish people denied money to come forward.

The decision, thought to be the first of its kind, does not set down a legal precedent but could lead to a series of fresh appeals.

See: http://www.thejc.com/news/uk-news/109242/charedi-man-wins-landmark-tribunal-case

Also

UC claimants can still restrict the work they look for, which should include beliefs.  For example, it would be unreasonable to force a vegetarian to apply for work in a meat handling factory.

(4)Regulations may impose limitations on a work search requirement by reference to the work to which it relates; and the Secretary of State may in any particular case specify further such limitations on such a requirement.

(5)A limitation under subsection (4) may in particular be by reference to—

(a)work of a particular nature,

(b)work with a particular level of remuneration,

(c)work in particular locations, or

(d)work available for a certain number of hours per week or at particular times,

and may be indefinite or for a particular period.

Hi - the last bit is from the WR Act 2012, I think - but I haven’t found the corresponding UC Regulations. Unless I can’t see for looking [not unusual] then I think it’s been quetly dropped.

I think you’re right Andrew - reg 97 is the one that makes provision for limitations on work search and work availability and in the commentary in the Mesher book it highlights that the limitation is only for people with a physical or mental impairment or carers. Quietly dropped I think as you say!

on the other hand, there is still the equality act etc; one can’t be discriminated against on grounds of religion and so on .....not to mention the HRA ......

Harder to put into practical action than having a Regulation within benefit law itself protecting the claimant.

I think we need to look at what else has been quietly dropped.

And we know what will happen to the HRA if certain people are elected next year.

In the UC Claimant Committment states:

Identifying the work a claimant is expected to look and be available for ... Claimants will normally be expected to look for any ‘suitable employment’, paying the relevant national minimum wage,

See:  https://www.whatdotheyknow.com/request/claimant_commitment#incoming-398294

I still see nothing in the CC or the Regs to protect claimants in the circumstances i raised.

Reasonable, humane JC+ staff will exercise their discretion and take such objections in to account, but others will not, and the matter will only become a live one at the point where sanctions are applied.

Andrew Dutton - 31 December 2014 09:21 AM

Harder to put into practical action than having a Regulation within benefit law itself protecting the claimant.

.

I don’t think it is; a decision that a person has not met their CC must be made with the PSED at S149 EQA and the duty to act in accordance with the ECHR at S6(2) HRA in mind. Otherwise it could lead to unlawful decision making which a FtTribunal can overturn.

I agree with Andrew’s initial point that more is left to discretion. On Dapne’s point the limited exceptions allow that those with physical or mental impairments can restrict without having to show a reasonable prospect of employment. Under JSA anyone could place restrictions as long as they could show reasonable prospect of employment.

Here’s fun – at a training session yesterday we were asked about UC claimants taking any holidays.

Under JSA Regs, you can be treated as actively seeking work for 2 weeks total in 12 months when away from home - Reg 19(2) - but you still have to be available for work and so must assure JC+ that you will cut the holiday short and take up work. I can see no such provision in the UC Regs, even for taking a break within the UK.

I assume that this is another matter that has been removed from the Regs and become entirely at the discretion of the Work Coach?
I’m quite happy to be put right on this!!!