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Claimant commitment - not fit for the purpose - treatment of subsequent sanctions

 

Chrissum
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Bit wordy but the enquiry below hopefully will explain all.
My client (who has appeared in these fora before) has 16 sanctions against her in Live service. To cut a (very) long story short, via a complex needs review, the DWP’s own work psychologist recommended that her claimant commitment should be tailored to fit someone with anxiety depression and claustrophobia and that throughout her claim, her commitment had been tailored for a person with no health conditions and as a result “have not fitted the claimant”. As part and parcel of my escalation of this case, I was told on more than one occasion that as a result of this report, the sanctions would be lifted. However, when I asked for back pay due, I was told that they had not been lifted (despite them clearing her rent arrears) and the matter would now have to proceed to a tribunal for determination. (they have lifted the current 3 year sanction so at least she is now getting paid)
I will be arguing that as the claimant commitments have been “deemed” as not fitting the claimant, and therefore not tailored to her needs, then such a claimant commitment is not fit for the purpose and any sanctions based upon it are therefore not reasonable and appropriate.
Does anyone else have any experience of arguing the validity of sanctions on the basis of a wrongly constituted claimant commitment?

     
ROBBO
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No personal experience, but CPAG Dan was making the point at a workshop not so long ago that CUC/1808/2017 is a great starting point in such cases -

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/consideration-must-be-given-as-to-whether-the-35-hour-worksearch-requiremen

Various helpful pointers, not least endorsing that an appeal can focus on reasonableness of work related requirement as well as reasons for failure to comply.

     
EHRC Adviser Support
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Dear Chrissum

Have you raised any complaints of discrimination under the Equality Act 2010 with DWP about this case? It might help resolve the issue without your client having to go to a tribunal hearing.

For anyone who is not familiar with the Act, DWP are a service provider, and carry out public functions for the purposes of the Equality Act 2010, they are also subject to the Public Sector Equality Duty. The information provided in your post suggests that DWP might not have complied with the duty to make reasonable adjustments under the Equality Act 2010 (see section 20 and 21 and 29). There’s a deadline of 6 months less one day to bring a claim in the county court

If you’d like to talk through any aspect of the case please contact us.

EHRC Adviser Support 0161 829 8190

     
EHRC Adviser Support
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Dear Chrissum,

Just to let you know that legal aid is available for discrimination claims.

Also, depending on the specific facts and circumstances of the case there could be other equality act arguments that apply here too, such as discrimination arising from disability or indirect discrimination, see sections 15 & 19 Equality Act 2010 and our Code of Practice chapters 5-7 (linked below). 
https://www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice

The Commission also funded EDF to produce a guide on discrimination especially for welfare rights advisers – Everyday Equality; you can download the quick guide or use the more detailed web toolkit both available on the EDF website.
https://www.edf.org.uk/practical-equality-rights-in-welfare-benefits-advice/
We’d be happy to discuss the details of the specific case if you contact us.

Best Wishes

EHRC Adviser Support
Telephone: 0161 829 8443
Email: .(JavaScript must be enabled to view this email address)
Signvideo https://www.equalityhumanrights.com/en/contact-us/signvideo-bsl-online-interpreting-service

 

     
Chrissum
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Thanks both for the useful pointers.
If it helps, here are some further notes:
This is a complex case which I thought I’d resolved on several occasions. Again to cut a long story short, a complaint was lodged, ironically enough at the request of the DWP ( a long story in itself). This turned into a complex case review at which point the psychologist became involved. The complaints resolution manager told me that following their report, the sanctions would definitely be lifted, but when I chased this for the purposes of assisting Shelter with a homeless prevention matter, I was then told that the sanctions were not being lifted and we would have to wait for a tribunal, with no timescale attached. I fired off a strongly worded e-mail suggesting they had potentially breached the Equalities Act, on a racial (cultural) basis, which was also mentioned by the psychologist, as well as the disability aspect. By the end of that day someone “more senior” had looked at the case and I was told that though the sanctions had not been lifted when I chased the case, following my e-mail they had decided to now do so. I was then contacted by one of our local managers re paying off her arrears and lifting her eviction warrant. This was done. A colleague of mine became involved in helping the client to meet her claimant commitment, and the client, as well as myself, naturally asked when she would be getting the balance of her arrears of UC. The response was along the lines of though the sanctions had been lifted and she was now getting ongoing entitlement, the payment of arrears was never going to happen without tribunal approval and the paying off of her housing arrears was an “exceptional circumstance to prevent eviction”. The response to my further complaint, states that “it is only HMCTS who would be able to overturn the decisions” and that “it was agreed ... for the sanctions to be lifted in order for sufficient monies to be paid to stop the eviction only”, which may be of interest and news to a tribunal!
So I think I will be seeking instructions from my client and contacting EHRC as suggested, but in the meantime am preparing for a tribunal against sanctions which have been lifted but only partially so.
Many thanks.

     
ClairemHodgson
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Solicitor, SC Law, Harrow

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gordon bennett…...

     
Chrissum
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WRAMAS, Bristol City Council

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ClairemHodgson - 09 October 2018 09:31 AM

gordon bennett…...

and Fred Karnos as well!

     
Dan Manville
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Just to echo the EHRC’s point above; I have had some success in the past lawyering up in cases like this. I can see a very reasonable case for an award of Legal Aid knowing how it works. I wouldn’t be hesitating to ring Community Legal Advice on 0345 345 4 345 in this case…

     
Chrissum
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Thanks Dan. I am trying to seek instructions from my client to proceed, but see no harm in a firm letter before action, which I am currently attempting to word… carefully.

     
Martin Williams
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Chrissum - 05 October 2018 01:47 PM

Bit wordy but the enquiry below hopefully will explain all.
My client (who has appeared in these fora before) has 16 sanctions against her in Live service. To cut a (very) long story short, via a complex needs review, the DWP’s own work psychologist recommended that her claimant commitment should be tailored to fit someone with anxiety depression and claustrophobia and that throughout her claim, her commitment had been tailored for a person with no health conditions and as a result “have not fitted the claimant”. As part and parcel of my escalation of this case, I was told on more than one occasion that as a result of this report, the sanctions would be lifted. However, when I asked for back pay due, I was told that they had not been lifted (despite them clearing her rent arrears) and the matter would now have to proceed to a tribunal for determination. (they have lifted the current 3 year sanction so at least she is now getting paid)
I will be arguing that as the claimant commitments have been “deemed” as not fitting the claimant, and therefore not tailored to her needs, then such a claimant commitment is not fit for the purpose and any sanctions based upon it are therefore not reasonable and appropriate.
Does anyone else have any experience of arguing the validity of sanctions on the basis of a wrongly constituted claimant commitment?

1. ... as a matter of law a claimant is not sanctioned for failure to do what is in their claimant commitment (despite some DWP submissions I have seen that suggest the contrary).

2. The claimant commitment is merely a record of the conditions the claimant must meet and is not the source of the claimant having to meet those conditions.

3. Sanctions under s.26 or s.27 of the WRA 2012 flow from a claimant not meeting the requirements lawfully imposed under ss.21 to 24.

4. So the way to run an argument about a rubbish CC where a claimant has failed to do things in it is to:

a) Work out what the claimant could have been required to do under the rules.

b) Look at whether she did this.

c) Wherever she has not think about good reason.

d) Any of the sanctions that are things she could not lawfully be required to do then don’t think you need good reason- you just say the requirement unlawful.

Does that make sense?

     
lost in Granite
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You may find the attached upper tribunal decision re UC and sanctions helpful in your discussions. Hopefully I have anonymised it properly.

     

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