Statistics from the Department for Work and Pensions have revealed that people with learning disabilities who claim employment and support allowance (ESA) are more likely to have their benefits cut through a sanction than people claiming the benefit due to other conditions.
Data shows that during March 2014* a sanction was applied to approximately 4,500 people claiming ESA (the benefit for people who are deemed ‘unfit for work’) because of a learning disability or long-term mental health problem. More than 60 per cent of the sanctions during the month were applied to claimants getting ESA for ‘mental and behavioural disorders’, the medical classification under which claimants with learning disabilities are recorded.
There was a more than six-fold increase in the number of ESA sanctions applied in March 2014 compared to December 2012, when a new system of sanctions was introduced, across all claimants with various disabling conditions. The following describes that system.
A sanction can be applied to the ESA award of a claimant in the ‘work-related activity group’ for failing to meet one of the following ‘compliance conditions’:
- attending and taking part in a work-focused interview; or
- undertaking work-related activity agreed with their personal adviser; or
- agreeing to do either of the above at a later date.
If a sanction is applied the claimant’s ESA is reduced for a period by £73.10 (the weekly personal allowance of ESA for a single person from April 2015). But the ‘work-related activity component’, and any other elements of ESA in payment, such as premiums, are not affected.
There are two sanction periods. An open-ended period applies until the claimant meets the relevant compliance condition. This is followed by a fixed-period. The length of this depends on whether the claimant has had any other sanctions applied within the last year (but not including any within the previous two weeks).
Sanction periods are:
- first sanction: one week
- second sanction: two weeks
- any further sanctions: four weeks.
Before the claimant can be sanctioned, they should get notification from Jobcentre Plus that they have committed a sanctionable failure. They then have the opportunity to show ‘good cause’ for the failure within five working days. Acceptance of good cause will depend on whether or not it was reasonable for the claimant to act in the way that they did. If the failure was due to their disability they should try to get medical evidence to support this assertion.
If a sanction is still applied to their benefit, the claimant can challenge the decision, first by asking for a reconsideration within one calendar month and, if this is unsuccessful, by lodging an appeal.
Claimants who are having difficulty managing following the imposition of a sanction may be able to get a hardship payment. The claimant must make an application for this and be able to show that unless the hardship payment is made they and/or their family will suffer hardship.
Jobcentre Plus should consider the following in determining if the claimant will suffer hardship:
- whether a disability premium is included in the ESA award, or a disabled/severely disabled child premium in any child tax credit award;
- what resources are available to the household
- the difference between the resources available and the amount of any hardship payment that might be awarded
- whether there is a ‘substantial risk’ that the household will not have access to essential items (eg food, clothing, heating, accommodation) or will have access to them at ‘considerably reduced levels’ without a hardship payment.
- for how long the circumstances that require a hardship payment may last.
The amount of the hardship payment is 60 per cent of the personal allowance10 – £43.85 a week.
There are potentially a number of ways clients may either avoid, or reduce the risk of, a sanction.
- Get into the ESA ‘support group’ as claimants in the support group are not expected to meet work-related conditions. Medical evidence may be required to convince the decision-maker to place the claimant in this group.
- Ask for a reconsideration of the sanction decision, and if this is unsuccessful, submit an appeal to an independent appeal tribunal.
- Where the claimant cannot attend any interviews arranged by Jobcentre Plus or by a work programme provider, they should contact them as soon as possible and give their reasons for non-attendance.
- If the claimant is sent on an employment or skills conditionality programme that it is not suitable they should ask the provider if they can alter the programme. If they are unable to continue on the course or programme due to their condition, they should get a letter from their GP or other appropriate professional to confirm this.
It is of great concern that people claiming ESA, and therefore experiencing disability and ill-health, are now much more likely to be sanctioned than in the past. But is even more alarming that a vulnerable group of claimants – those with a learning disability or long-term mental health problem – are most likely to be penalised. As with so many negative changes happening within the welfare benefits system our clients will be looking to professionals to help them avoid and challenge the imposition of sanctions.
* The most recent data available at the time of writing.