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ESA Work Related Activity Sanctions
I know the rules are changing shortly.
However, I would be interested to know what is in practice happening when people are sanctioned for failing to participate in work related activity.
The regs allow for the sanction to carry on forever… unless one of the conditions in Reg 64 ESA Regs applies.
Reg 64 allows the DM to suggest alternative activity. For many unless that happens then the sanction carrries on and on and on….
So if the DM does not suggest an alternative or that the requirement no longer applies etc that is in effect a harsher punishment than a JSA claimant who failed to take part in the work programme would ever get…. (in terms of length not amount).
I just did some advice for an advisor who had someone who had lost out on about 3 months and still no sign of the DWP suggesting how the nightmare might be brought to an end.
Is that common?
(PS: forgive me if I have hopelessly misunderstood the rules- I have not done too much pondering of them)
I understand that a well known TV channel may be commissioning (currently at the earliest stage of the process) a follow up to recent programmes on the WCA - to look at what happens in practice to claimants who are found ‘fit for work’.
What level of support towards work do they get in practice? are claimants being sanctioned? their experience of Work Focused Interviews, referral to the work programme, attitude of local JCP staff (do they accept claimant has little realistic change of finding work and do not require them to undertake work related activity etc), experience of DWP contractors - do they concentrate only on claimants with a realistic prospect of work, is the picture patchy with, for example, more resourses / pressure placed on claimants in areas with higher % of SDA/IB/ESA awards etc etc.
They may also be interested in the application of work related activity requirements and sanctions to those placed in the WRAG.
It may be helpful to place any case examples of these issues under this discussion topic?
I have suggested to the researcher that they might want to make a more direct request for case examples through Rightsnet or NAWRA.
If the programme does eventually go ahead I assume they will require examples from claimants who are prepared to go on camera - you know the drill.
Thanks Peter- interesting.
I don’t mind what becomes of this thread in the future….
however, I would love to know whether anyone has any experience of what in fact happens when an ESA claimant is sanctioned for failing to do work related activity- does the SSWP suggest an alternative thing they could do? How long does he wait before doing so? Does it depend on the claimant showing willing? etc etc.
Martin
Slightly different issue but related.
Young man with ADHD and probably mild learning disability signing on and repeatedly being sanctioned for failures to attend courses etc. Has anger management problems. Claimed ESA and after a medical placed in support group.
Same day as the ESA decision notice recieved, he also got a letter from local WP provider stating he must attend a mandatory interview and could be sanctioned if not. Letter referred to JSA. We rang the provider and explained is now on ESA and in support group. They clearly have no understanding of the different ESA conditions and initially said he must still attend and “would be” sanctioned if not. We spoke to a manager who eventually accepted client did not have to attend the interview. The WP referral must have been made while he was still on JSA and took 4 months to reach the provider.
However, it appears that he is now in the Work Programme and there is no way to remove him from it for 2 years. He will be classed as voluntarily participating. He will still get letters inviting him to attend interviews but should be no compulsion and no threats of sanctions.
I don’t have much confidence in this process. In any case getting any letters like that tips him over into anger and despair - probably why he ended up in the support group.
I also have a general concern that WP providers do not know and in this case, did not want to know, how the law operates re conditionality and sanctions. This provider seemed quite happy to make it look as though they are the ones who impose sanctions.
I’ve had one client who was sanctioned for not attending work related activity at A4e. At least, I think she was sanctioned for that, it was very hard to find out more information from JCP, who just kept passing me around different offices. It was not suggested that there may be an alternative activity she could do, although she did have to attend a further Work Focussed Interview before the sanction was lifted.
Perhaps that is viewed as an ‘alternative activity’?
On a related subject I have recently asked for an interlocutory direction that the Secretary of State be asked to specify what ‘work related activity’ the appellant is going to be asked to undertake.
Its a Reg 35 case for the SG and the reasoning for the request for a direction being that how can the appellant or a tribunal decide whether the appellant would come to harm from engaging with work related activity unless the Secretary of State specifies what that specific person would be expected to do.
I have not had a reply yet and I was wondering if anyone else had tried this tack, and if so what happened?
We all saw this coming when ESA was introduced however I dont think the spirit of the original intent is being followed here with such vicious sanctions likely. Our LA wants all JSA sanctions referred straight over as most are simply unrealistic and unfair. Looks like they are going to have to do the same with ESA now. The problem is the vague and ambiguous “failure to comply” nonsense.
Inability to attend WFI will be problematic for many clients who cant leave the house, and Jobcentre plus’ promise to arrange home visits simply aint going to happen. Depressing. How do these people sleep at night?
I have a client sanctioned since Dec 2012 for missing a WFI with, it appears, no further invites to attend since. How can she get the sanction ended if she doesn’t have the opportunity to attend a futher interview, I don’t know…
I am gobsmacked quite frankly.
I have a client sanctioned since Dec 2012 for missing a WFI with, it appears, no further invites to attend since. How can she get the sanction ended if she doesn’t have the opportunity to attend a futher interview, I don’t know…
I am gobsmacked quite frankly.
I saw a client in the same situation yesterday, sanctioned in December after failure to attend WFI due to ill health. Her intial request to have decision reconsidered drew a blank so she’d contacted her MP as to why money reduced and after he’d contacted JBC on her behalf he wrote back to her saying he’d been told it was because she missed a medical! I rang the local JBC and she’s being seen today allowing ongoing sanction to be lifted immediatley.
Brian
I have a client sanctioned since Dec 2012 for missing a WFI with, it appears, no further invites to attend since. How can she get the sanction ended if she doesn’t have the opportunity to attend a futher interview, I don’t know…
I am gobsmacked quite frankly.
She could write to them offering to attend. If they don’t offer one promptly it is probably judicial review land.
I wondered about JR too
The rules seem to have got a lot tougher from last December, whereas the reduction was the amount of the component, it is now it is for personal allowance.
The commentary to reg 63 in Volume I of the regs book laments that the reduction was not limited to the amount of the component in the the wording of the WR Act 2007, since this seems to have been the intention : but they were not counting on the coalition government!
There is a right of appeal against disallowances made under WR Act s.18 (i.e. WRA sanctions), so will this preclude JR since all other avenues must first be exhausted?
however, given that the rules have changed to make the sanction far more severe so that it effectively deprives a person of the whole of their livelihood, the inability of the appeal system to deal with the issue quickly, the lack of clarity in the rules and the extent of the decision makers arbitrary power, maybe JR is still possible
I would be very interested to hear from a public lawyer on this
I’ve written requesting a late review of the decision to sanction and a request for a further WFI ASAP. Complicated a bit by the tenants daughter having appointeeship, she’s in Lincolnshire, client lives locally to my service but often stays there and interviews are arranged for there. Daughter thought she’d sorted it out locally, but obviously not. What a shambles.
thanks for the advice.
I am not a public lawyer (or a private one…) but I would say the public law issues at play are as follows:
1. There is nothing express in the regulations which imposes a duty on the SSWP to provide an opportunity for a WFI at any particular time. Thus the SSWP has a discretion as to when to provide one.
2. The rule for reducing ESA when a claimant fails to attend a WFI (or do WRA) found in Reg 63 allows for the reduction to continue until the claimant makes an agreement to participate in a WFI on an agreed date with the SSWP.
3. It is plain from the rule about when a reduction ends that the purpose of the reduction is to force the claimant to attend a WFI (although there is a further purpose which is to punish and that is represented by the extra sanction period- see Reg 63(7))
4. Therefore, proper exercise of the discretion on when to offer a WFI to a claimant who has failed to attend, had a reduction, and indicates that they are willing to do so would be to offer a date. It is plainly intended that dates are offered and failure to offer a date promptly is unlawful.
Martin
Complicated a bit by the tenants daughter having appointeeship,
As appointee was the daughter notified of the WFI or only the claimant?