JSA and ESA sanction appeals and claiming Hardship Payments

+1) JSA or ESA claimant and sanctioned?

Are you a JSA/ESA claimant and have you been sanctioned? If so, it’s important to take effective action promptly. You have a right to appeal. Currently only one claimant in three appeals a sanction. This is far too few, because the statistics show that the success rate of appeals is currently over 50 per cent. In other words your chance of success is better than evens. In fact, everyone should appeal, because even where sanctions are legally justified, the penalties have become unreasonably harsh.
If you don’t appeal and you then get another sanction within 12 months, the next one will be longer. So you MUST appeal every sanction even if you think you can cope with it.


+1.1) Types of sanction

A) JSA legislation

  • higher level sanctions (for example for leaving a job voluntarily) will lead to claimants losing all of their JSA for a fixed period of 13 weeks for a first failure, 26 weeks for a second failure and 156 weeks for a third and subsequent failure (within a 52 week period of their last failure)
  • intermediate level sanctions of 4 weeks for a first failure, rising to 13 weeks for a second or subsequent failures (within a 52 week period of their last failure) may be applied following a period of disallowance for not actively seeking employment or not being available for work
  • lower level sanctions (for example for failing to attend an adviser interview) will lead to claimants losing all of their JSA for a fixed period of 4 weeks for the first failure, followed by 13 weeks for subsequent failures (within a 52 week period of their last failure)” https://www.gov.uk/government/news/benefit-sanctions-ending-the-something-for-nothing-culture

B) ESA legislation

The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012
(Summary and explanatory note: http://www.legislation.gov.uk/uksi/2012/2756/note/made)

“The new sanctions regime for people on ESA in the Work Related Activity Group (WRAG) was introduced from 3 December 2012. Under the new rules ESA claimants in the WRAG who fail to comply with the conditions for receiving benefit receive an open ended sanction, followed by a fixed period sanction when they re-comply. The fixed period sanction will be 1 week for a first failure, 2 weeks for a second failure and 4 weeks for a third and subsequent failures in a 52 week period.” https://www.gov.uk/government/news/benefit-sanctions-ending-the-something-for-nothing-culture

C) Decision Makers Guidance: JSA DMG 37/12

https://www.gov.uk/government/publications/decision-makers-guide-memos-staff-guide (Contains examples of how sanctions are applied and ended)

64. Application of a sanction to a new award.

Example: “A sanction decision has been made on Karen’s award of JSA. This sanction is due to a disallowance on availability grounds on a previous award of JSA. The sanction is due to end on 12.11.12 but Karen finds remunerative work and her award of JSA ends on 26.10.12. Karen’s temporary job comes to an end and she makes a new claim for JSA with a date of claim of 8.11.12. This award of JSA will be sanctioned with a sanction running from the date of claim to 12.11.12 because there was still an outstanding sanction on her last award of JSA…

Exceptions

68. From 22.10.12 if a claimant becomes re–entitled to JSA after being in employment for

  1. 26 weeks or more or
  2. more than one period of employment where the total of those periods amount to at least 26 weeks

the balance of the most recent sanctionable failure will be lifted and not applied to the new award.


+2) Mandatory reconsideration (Appeal first stage)

The process of appealing to the first stage, after the DWP has sent you their Decision Letter, is an internal ‘mandatory reconsideration’ by DWP. It is simple and doesn’t cost anything apart from telephone calls, stamps or fares. https://www.gov.uk/appeal-benefit


+2.1) Reconsideration time frame

You have to contact the DWP within 1 month of the Decision Letter to ask for mandatory reconsideration, or 1 month and 14 days if you also asked for written statement of reasons for the sanction. The DWP does not have to respond within any set period, but you should contact them if there is a delay of more than a month to make sure your request is being progressed. Although you should try to keep to the appeal timetable, you may be able to make a late appeal up to 13 months after the original decision.


+3) Written statement of reasons

It’s quite common for the Jobcentre to stop your money without sending you a letter telling you the reason for the sanction. If this happens, or if the reason is unclear, request a written statement of reasons immediately. You cannot draft an effective appeal without knowing for certain why you have been sanctioned. If you ask for a written statement, you get an extra two weeks (14 days) to lodge your appeal. But in any case, if you have not been sent a decision letter, that will be grounds for a late appeal.


+3.1) Be wary of the telephone

The DWP Decision Letter will contain a contact telephone number. But even if you discuss the issue over the phone, you should make sure that you submit any Mandatory Reconsideration appeal in writing, in order to have a clear record. Should the DWP telephone and ask you whether you are going to request reconsideration, you should state that you are considering appealing and you will only be responding in writing.
Giving your appeal reasons by telephone risks misinterpretation by the DWP or – worse – you might give the DWP information that appears to support its decision to sanction.


+4) Second opinion

Don’t try to appeal without getting a second opinion from someone else as it is vital to say exactly the right things in your appeal statement. There are probably several good sources of advice locally: your Council’s Welfare Rights Team, the Citizens Advice Bureau, or a Law Centre. (See item 11) If you can’t get to one of these, then ask whoever you know who you think can help you the best. There are many grounds of appeal, for instance if you had a good reason for what you did or didn’t do, and your adviser is quite likely to suggest grounds that you hadn’t thought of.


+5) Complain to your MP

If you have been treated unreasonably, then you should make a point of complaining to your MP (http://www.theyworkforyou.com/mps/) and insisting that they should fight your case on your behalf. There is no evidence on how many sanctioned claimants are going to their MP, but there is a lot of evidence that the DWP is very afraid of MPs and that once they are involved, it backs off imposing sanctions. The DWP is desperate to keep MPs’ support for the sanctions system. Making sure that your MP knows how unfairly sanctions are being applied is one of the best ways of helping your fellow claimants. The sooner Parliament faces up to the scale of abuse in the system, the sooner it will be reformed.


+6) Hardship payments

Even if you are sanctioned, you may still be entitled to ‘hardship payments’. Make sure you get the information on these from the Jobcentre immediately and get your claim in on time. If you apply late you may be able to get backdating. You will only get hardship payments if you continue to sign on for JSA or ESA. Hardship payments are also available under Universal Credit, although there are some differences in the rules.


+6.1) DWP guidance, leaflet and specimen claim forms

Explanatory leaflet (JSA), Claim forms (JSA/ESA/Universal Credit) and DWP guidance http://refuted.org.uk/2014/10/10/hardshiprecoverable/



+7) Housing Benefit and Council Tax Reduction/Benefit

You must also contact your Housing Benefit/Council Tax Reduction office immediately you know you’ve been sanctioned. Even if you are sanctioned, you remain entitled to Housing Benefit/CTR, but you may need to make a new claim. There is lots of evidence that many sanctioned claimants are running up big rent arrears as a result of having their Housing Benefit cut off, and not being able to get it backdated. This is an extra penalty you simply don’t need and don’t deserve.


+8) Keep claiming

If you are unemployed, you should keep claiming. This means you must keep signing on, and meeting jobsearch requirements, even while you are not getting benefit due to a sanction. There is one possible exception to this, in that even while sanctioned you could be subject to another sanction for not meeting requirements. This would be serious as the Coalition has now introduced a more rapidly escalating scale of penalties for repeat ‘failures’. If you feel your Jobcentre adviser/coach is abusive or cannot be trusted, you should therefore make a complaint about them straight away.


+8.1) Application of a sanction to a new award

If you stop claiming but later need to claim again, you may have to serve any balance remaining on the sanction, if the time period for the original sanction has not passed when a new claim is made. For exceptions, examples and explanations: http://refuted.org.uk/sanctions/newregime/


+9) Jobcentre adviser is abusive?

If you feel that your Jobcentre adviser/coach is abusive or cannot be trusted, then seek advice immediately from your Council’s Welfare Rights Team, the Citizens Advice Bureau, or a Law Centre (See item 11) or your MP, who should help you to make a complaint and get transferred to another adviser.


+10) Tribunal (Appeal second stage)

If you are unsuccessful at the ‘mandatory reconsideration’ stage, then you have the right to make a further appeal, to an independent Tribunal. If you have a strong case and intervention by your MP has not worked, then you should definitely go on to the Tribunal stage. This may sound intimidating, but it is quite informal, There are no fees and you can claim expenses. You have the right to attend in person and you should always do so as many cases are decided on the ‘balance of probabilities’ and the judge is likely to believe what you say even if you cannot prove it. If you are not there, the judge will not be so sure whether to believe you. If at all possible, you should have a representative from your Council’s Welfare Rights Team, the Citizens Advice Bureau, or a Law Centre. (See item 11) as they will know the law better than you do and will help you make the best arguments. There are no fees and you can claim expenses





+12) Other points for consideration

DWP Contractors & Requests for Personal Information held about you (Subject Access Requests) If your sanction involves a DWP contractor you can also submit a request for your personal information (Subject Access Request) for copies of any forms or information about you submitted by them to the Jobcentre. See https://www.gov.uk/government/organisations/department-for-work-pensions/about/personal-information-charter

You can also request copies of any provider letters that notified mandatory activity. Support provided by refuted has more often than not shown these forms, letters and information contain significant mistakes or fail to follow DWP provider guidance or are simply confusing, which can lead to sanctions being overturned or process stopped. However, DWP only has to respond to a Subject Access Request within 40 calendar days. This means that it is not worth waiting for the result before submitting your request for mandatory reconsideration. Any information it reveals will have to be given to your MP or used at a Tribunal.

Jobseeker Directions/Jobseeker Agreements/Claimant Commitments

If your sanction is based upon alleged non compliance with any Jobseeker Directions/Jobseeker Agreements/Claimant Commitments, it is suggested you seek an independent opinion as to whether they are reasonable to your personal circumstances. They can also be formulated in ways that are contrary to DWP guidance or written in ways that are confusing. If they are found to be unreasonable, contrary to DWP guidance or simply confusing, this can lead to sanctions being overturned. The question an appeal Tribunal will look at is whether what you did was reasonable.

Complaints

There are a number of ways in which you can make a complaint about the DWP.
Complain about Jobcentre Plus https://www.gov.uk/complain-jobcentre-plus
Got a complaint about a DWP Work Programme Provider? http://refuted.org.uk/2013/10/13/providercomplaint/
However, you should bear in mind that all of these complaints procedures move very slowly and the amount of compensation, if any, that you eventually receive is likely to be small. You are likely to need help in making a complaint from your CAB. Therefore you should concentrate on making sure that you get your request for reconsideration in, and if necessary complain to your MP.


+13) Emergency help: Food Banks and Council Welfare Assistance

Food Banks

Council Welfare Assistance Schemes

Notes: Welfare rights law and DWP guidance, in particular, changes frequently. You may find more recent information via http://refuted.org.uk/category/

 

Information from: http://refuted.org.uk/2014/08/06/sanctionstips/

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