CHAPTER 9Benefit sanctions
When you claim JSA, your benefit can be stopped for a number of reasons. The penalties or sanctions last for different lengths of time according to which JSA rules the ES decides you have broken.
When you are asked to your initial New Deal interview with your ES personal adviser, you will be in the New Deal Gateway. During this time you remain on JSA and are subject to all the JSA rules.
While you are actually participating in a New Deal option you will receive an allowance or wage. No sanction can be applied to this. However, if you refuse an offer of a New Deal place, fail to take up a place or leave a place early, you may have a sanction imposed on your benefit, both at the time and, in some circumstances, in the future.
In this chapter we look first at sanctions within the Gateway, then sanctions once you have been referred to a New Deal option.
Decisions about whether you should have a sanction imposed on your benefit are made by ES "decision makers". This is a new category of staff which has replaced adjudication officers.
Penalties in the Gateway
During your time in the Gateway, you will remain on JSA and the sanctions regime which applies to you will be the same as for all JSA claimants. This is outlined below, and more details can be found in the Unemployment and Training Rights Handbook.
There are three ways in which you can lose benefit under the JSA rules.
If your benefit claim is terminated, you should make a new claim immediately. If you are also in receipt of Housing Benefit and/or Council Tax Benefit, you should contact the local authority because these claims will also be stopped if your JSA claim is terminated. You can appeal against the decision to terminate your claim, but you should make a new claim first since the appeals process can be very lengthy.
An ES decision maker has discretion to issue a sanction in this category for less than the maximum 26 weeks. In practice, the penalty is usually imposed for the full 26-week period.
If you are issued with a 26-week sanction you should consider appealing against the decision since an appeal may at least reduce the length of the penalty.
During a 26-week sanction, your Housing and Council Tax Benefits should continue to be paid. You should check with the local authority in case your claims have been stopped by mistake.
You should apply for Hardship Payments during the sanction period. If you are considered vulnerable (see below for who is considered vulnerable), you will be able to receive payments immediately, providing you can demonstrate to the Benefits Agency hardship officer that you or a member of your family will suffer hardship without JSA. If you are not considered vulnerable, you will not be able to receive Hardship Payments for the first 2 weeks of a sanction, but after this, if you convince the hardship officer that you or a member of your family will suffer hardship, you should receive payments. For more information about Hardship Payments see page *.
You could be issued with a 2- or 4- or 26 week sanction if you:
In addition, you could be issued with a 2- or 4-week sanction if you fail to carry out a Jobseeker’s Direction without good cause.
If you are issued with one of these sanctions, your Housing and Council Tax Benefits should continue to be paid. It is always a good idea to check that your local authority has not stopped your claims by mistake. You can appeal against the decision to issue you with a sanction and can apply for Hardship Payments. If you are considered to be vulnerable, you can apply immediately and can receive payments if you can show the hardship officer that you or a member of your family is suffering hardship.
Interviews at the Jobcentre while you are in the Gateway
You will be called in for an initial New Deal interview with your personal adviser when you reach 6 months of unemployment. You are officially in the New Deal Gateway from the date you are given the letter asking you to attend the initial New Deal interview.
You will probably be given the letter inviting you to your initial New Deal interview when you attend the Jobcentre to sign on. The first letter will not refer to the sanctions regime and if you do not attend the interview you will not have to show "good cause" and you will not lose any benefit (NDPG (18-24), Ch 2, para 86).
If you do not turn up for this initial New Deal interview, you will be sent a second letter inviting you to attend at a new time. Again, if you fail to attend, you should not lose any benefit. If, however, you miss two initial interviews, you will be given or sent a more formal letter arranging a third interview within 2 weeks of the first missed appointment.
The letter will say that "if you do not attend, and do not have a good reason, you could lose your Jobseeker’s Allowance and credits of National Insurance". If you fail to attend this interview, and you do not attend the Jobcentre within 5 working days (i.e. days when the Jobcentre is open) showing "good cause" for missing the interview, you will have your JSA claim terminated.
After the initial New Deal interview, you may be called in to attend further interviews with your ES personal adviser throughout your time in the Gateway. For these subsequent interviews, you will not be given a second or third chance to attend. Letters notifying you about further interviews with the ES personal adviser will be formal letters warning you that you could lose benefit if you fail to attend. You must attend the interview unless you can attend the Jobcentre within 5 working days showing "good cause" for failing to attend.
Failing to attend interviews with a New Deal personal adviser
If you fail to attend any "key" interview (see "Attendance at New Deal interviews" page *) with ES staff you will have your claim terminated unless (NDPG (18-24), Ch 8, para 251):
Your ES adviser should have told you about the consequences of not attending a key interview (NDPG (18-24), Ch 8, para 251).
If you fail to attend the Jobcentre within 5 working days, you may have your claim terminated even if you have a very good reason for missing the interview. If you are unable to attend, it is a good idea to contact the Jobcentre by phone and/or in writing.
If your JSA is terminated, you must sign on again as soon as possible and make a new claim if you wish to continue claiming JSA. If you are also in receipt of Housing Benefit and/or Council Tax Benefit you should contact the local authority about making new claims since these benefits will also be stopped when your JSA claim is terminated.
If you are referred to a decision maker for not attending an interview with your ES New Deal personal adviser (or not attending it on time), the decision maker should take the following matters into account (DMG, Vol 4, para 20948):
Other Gateway interviews
Depending on how the New Deal is organised in your area, you may be referred to an external agency for any Gateway interviews rather than to the Jobcentre. For example, you may be referred to the local careers service for guidance and assistance in choosing your option.
Unlike the ES at the Jobcentre, the careers service and any other agencies taking part in Gateway provision in your area will not have the power to issue you with a benefit penalty. This means that you cannot be required by law to attend these interviews (NDPG (18-24), Ch 9, para 32).
Your ES personal adviser may take action to penalise you if you are "wilfully and persistently failing to attend interviews" with a Gateway organisation outside the ES (NDPG, (18-24), Ch 9, para 39). ES personal advisers can also:
New Deal Action Plan and Jobseeker’s Agreement
During the Gateway, you will be expected to agree a "New Deal Action Plan" with your ES personal adviser. The Action Plan is intended to be "your record of what you want and need to do to find work".
The content of your Action Plan may affect the active steps to find work which you have agreed to undertake on your Jobseeker’s Agreement. Your Jobseeker’s Agreement must be updated regularly to reflect changes to your Action Plan (NDPG (18-24), Ch 9, para 35).
Drawing up the Action Plan should be a voluntary process and agreeing to the Plan is not a condition of receipt of benefit. You must, however, have a signed Jobseeker’s Agreement in order to qualify for JSA, so ES guidance says that "although [you] may be unable to agree the content of the New Deal Action Plan (i.e. because [you] need time to consider the activities [you] will undertake during the Gateway), it may be possible to agree steps which can be included on the Jobseeker’s Agreement" (NDPG (18-24), Ch 9, para 35).
Disagreements about your Jobseeker’s Agreement
When you first sign on, you will be expected to agree the number of hours each week for which you will be available for work (usually at least 40) and the steps you will carry out each week to look for a job. You may disagree with the content of the agreement as suggested by the ES adviser and want to challenge the agreement. Both you and the adviser have the right to refer a dispute over the initial agreement to a decision maker.
According to the benefit rules, an adviser must "not enter into a Jobseeker’s Agreement with a claimant unless", in the adviser’s opinion, you would satisfy the availability and actively seeking rules if you complied with it and "it is reasonable to expect [you] to have to comply with the proposed Agreement" (JS Act, Sec 9(5) &(6)).
However, if you believe that your own suggested terms are reasonable or that the terms suggested by the adviser are much too demanding, then you also have the right to instruct the adviser to refer the dispute to a decision maker (JS Act, sec 9(6)). If you disagree with the ES over your Agreement, you should offer proposals for an alternative Agreement to be referred to the decision maker and you must make sure that your suggestions meet the availability and jobseeking rules.
If you dispute the content of your Jobseeker’s Agreement at the start of a claim, you will not receive any benefit until the decision maker has made a decision. If the decision maker finds against you, you will have to agree to and sign the ES adviser’s version of the Agreement.
Although some new JSA claimants will go straight onto the Gateway (see page *), most people going onto the Gateway will already have a Jobseeker’s Agreement in place because they will have been claiming JSA for 6 months or more. If you do not agree to a change that has been made to your Jobseeker’s Agreement during the Gateway or you want to change it to more accurately reflect your activities, and your ES personal adviser does not agree with you, you can ask for it to be referred to a decision maker for a decision (NDPG (18-24), Ch 9, para 32).
If you dispute the Jobseeker’s Agreement during a claim (e.g. in the Gateway), your JSA should not be affected while a decision maker is coming to a decision: "Where a revised Jobseeker’s Agreement is disputed, the original will remain in force and JSA will continue to be paid in full, until a decision is made on the revised Agreement" (LMCG, Ch 4). "However, if an acceptable Agreement cannot be agreed because [you are] not available for work" the adviser will "explain that JSA will not continue to be paid" (LMCG, Ch 4). In these circumstances, an adviser can suspend JSA immediately under the availability for work rules.
Jobseeker’s Directions in the Gateway
As well as having the power to issue a Jobseeker’s Direction requiring you to attend New Deal interviews with outside agencies (see above), your ES personal adviser has the power to use a Jobseeker’s Direction to "require" you to carry out other activities.
An example of the type of activity you may be asked to undertake is a course aimed at building confidence and helping you to prepare for your New Deal option. If you refuse to attend, you may be issued with a Jobseeker’s Direction.
Although the emphasis during the Gateway is on encouraging voluntary action from you to find work and/or identify the best New Deal option for you, there are situations in which you can be issued with a JSA sanction. If you are "judged to be wilfully and persistently refusing an opportunity which would be of benefit to [you]", a Jobseeker’s Direction will be issued to notify you to attend. If you then refuse to attend, you will be sanctioned for 2 weeks (rising to 4 weeks if you have already been issued with a sanction in the previous 12 months).
A Jobseeker’s Direction must be issued in writing and must be "reasonable, having regard to [your] circumstances" (JS Act, sec 19(5)(a)). It must also be aimed at achieving one or both of the following (JSA IP, Ch 5, paras 1-2):
Refusing or leaving jobs in the Gateway
During the Gateway, you will probably be offered unsubsidised jobs. If you refuse to apply for an unsubsidised job notified to you during the Gateway, you can be issued with the JSA penalty and be sanctioned for up to 26 weeks. If you take an unsubsidised job during the Gateway, and then leave voluntarily without good cause, or are dismissed for misconduct, you will also be given a 26-week sanction. Note, however, that you may be able to try a job and leave it without being sanctioned by using the "Employment on Trial" rule.
Employment on Trial
Employment on Trial is a period during which you can leave a job voluntarily and be sure that you will automatically not be disqualified under the 26-week "voluntary unemployment" sanction. To qualify for this exemption you must meet the following conditions (JSA Regs, reg 74 and JSA NJI, Ch 3, Appen 4, para 6):
Employment on Trial does not apply if you are being submitted for a benefit sanction on the grounds that you left the job for reasons of misconduct.
Remember, you will not qualify for Employment on Trial even if you were signing on as unemployed if you declare "any day of [part-time] employment during the 13-week period" before the job started (JSA NJI, Ch 3, Appen 4, para 6). However, if you are engaged in part-time work for the emergency services you are exempt from this ruling and these activities will not disqualify you (JSA NJI, Ch 3, Appen 4, para 7).
In determining your eligibility, the following activities count towards the 13-week qualifying period (JSA NJI, Ch 3, Appen 4, para 14):
The qualifying period during which you can leave the job (i.e. from the beginning of the 5th week but no later than the end of the 12th week) is calculated on the basis that "a week for this purpose means a period of 7 days beginning on Sunday and ending at midnight on Saturday … employment is treated as starting on the Sunday of the week in which it actually starts" regardless of when you did really start (JSA NJI, Ch 3, Appen 4, para 13).
It is very important to take this strict interpretation of a working week into account when you work out whether you qualify under the "period of employment" eligibility rule or use it to decide when you could to leave a job without incurring a sanction. It means that midnight on Saturday is the end of the working week and that you will not qualify for Employment on Trial if you work for 4 weeks and leave before midnight on the Saturday. You must leave at some stage from the beginning of the 5th week which begins on the Sunday.
In addition, since the working week begins on a Sunday regardless of the day on which you actually started work, you must count parts of weeks in which you have worked 16 hours as whole weeks. For example, if you started a job on a Wednesday and left on a Tuesday 11 weeks and 6 days later and you had worked at least 16 hours each week, you would not qualify because the part weeks you worked would have been counted as whole weeks and you would be treated as being in your 13th week when you left.
Remember that, while it may be difficult to establish, you can leave a job outside of the Employment on Trial period without losing benefit as long as you can show you had just cause for leaving.
Once you have left a job under Employment on Trial, you cannot benefit from the provision again until you have been unemployed again for another 13 consecutive weeks.
Good cause for turning down or leaving an unsubsidised job
If you are faced with the possibility of a 26-week sanction for turning down or leaving an unsubsidised job during the Gateway, you will not lose any benefit if you can show good cause.
Decision makers are told to examine whether any of the following issues affect you and provide you with good cause (JSA Regs, reg 72):
This is not an exhaustive list, so other reasons may be accepted by the decision maker. If any of these circumstances apply in your case, the decision maker should not impose a sanction. If your reasons for refusing employment fall short of providing you with "good cause", the circumstances may still be taken into account when the decision maker determines the length of the sanction (between 1 and 26 weeks). (For more information about the 26-week sanction and good cause, see the Unemployment and Training Rights Handbook.)
Hardship Payments in the Gateway
If you are sanctioned while you are in the Gateway, you may be entitled to claim Hardship Payments like any other JSA claimant. Vulnerable groups are entitled to claim Hardship Payments at the start of any sanction. If you are not in a vulnerable group, you will have to wait for 2 weeks before you become eligible. Hardship Payments are paid at the rate of 60% or 80% of Income-based JSA.
You are in a vulnerable group and so eligible for Hardship Payments immediately if you or your partner is (JSA Regs, Reg 140(1); NDPG (18-24), Ch 9, para 14):
You are also in a vulnerable group if you have left care in the last three years, but your partner’s having left care in the last three years does not put you in this group (JSA Regs, Reg 140(1); NDPG (18-24), Ch 9, para 14).
You may be able to claim Hardship Payments before you are officially sanctioned if your JSA has been stopped while the decision maker decides whether you should be issued with a sanction.
You apply for Hardship Payments at the Benefits Agency rather than the Jobcentre, unless the ONE service is operating in your area (see page *). You will be interviewed by a hardship officer who will decide whether you or a member of your family will suffer hardship without any benefit. (For more information on what counts as hardship see the Unemployment and Training Rights Handbook).
Sanctions on New Deal options
Under the New Deal you can be sanctioned for 2,4 or 26 weeks if you (NDPG (18-24), Ch 9, para 6):
Length of sanction and procedures
A first sanction on New Deal will be for 2 weeks, a second sanction (incurred within 12 months of a previous New Deal sanction) will be for 4 weeks and any third, fourth and subsequent sanctions (incurred within 12 months of a previous New Deal sanction) will be for 26 weeks.
If you are sanctioned under the New Deal, your first penalty should always be a 2-week sanction even if you have already received a 2-, 4- or 26-week sanction under JSA but outside the New Deal within the previous 12 months.
Note that, if your New Deal option is a job with a wage, you need to be careful about leaving if the job is extended past the 6-month period. As soon as you have been in the job for 6 months and one day, the job ceases to be a subsidised New Deal job, so the JSA sanction for leaving a job voluntarily applies and you could lose benefit for up to 26 weeks.
If you receive a 26-week sanction under the New Deal, on the first occasion this happens the ES New Deal personal adviser should arrange an interview with you as soon as possible (NDPG (18-24), Ch 9, paras 137-139). You will be told:
However if you join an option you will receive the appropriate New Deal allowance (equivalent to your JSA). If you complete the option without interruption and return to claim JSA, even if the sanction is in place, JSA will be paid (provided 4 weeks of the sanction period have elapsed). You should receive written notification that you are entitled to receive JSA for the remainder of the sanction period (NDPG (18-24), Ch 3, para 140b). However, you will be warned that if you, "without good cause, [you] subsequently, fail to start or complete an option, a further 26 week sanction will be imposed which cannot be ‘lifted’" (NDPG (18-24), Ch 3, para 140c).
The ES has made a commitment to ensure that young people subject to 26 week sanctions who agree to start options are placed as soon as possible. You should be able to start the option within 28 days of either the first day of the imposed sanction or the date on which you agree to return to an option, whichever is the later date (NDPG (18-24), Ch 3, para 141). If the ES cannot arrange a start date within the 28 day limit the ES has "agreed to pay an allowance equivalent to your JSA from the end of the four week (sanction) period and until such time as [you] start the option" (NDPG (18-24), Ch 3, paras 144-145).
To receive an allowance under these circumstances, you will have to attend the Jobcentre weekly to discuss your progress and undertake activities to improve your employability and help prepare you for your New Deal option. The exact activities which have to be undertaken will differ for each individual, but you may have to improve your jobsearch or work with prospective option provider on areas such as basic skills and timekeeping. You may be given access to help available in the Gateway and follow-through, including Programme Centres (see the Unemployment and Training Rights Handbook for further details). Your progress will be reviewed weekly and if you fail to carry out the activities your allowance may not be paid.
Referral to an option
You must receive your referral to an option in writing before you can be sanctioned for failing to attend. When you are given the written notification of the offer of a place, you should be advised of the possible implications for your JSA payments if you refuse the offer or fail to take it up (NDPG (18-24), Ch 4, paras 153-157). Regulations ensure that you will have good cause if, for example, you refuse to apply for or accept a place on a New Deal option when you have not previously been given a notice from the ES advising you that "failure to attend could result in loss of benefit" (JSA Regs, reg 73(a)(2A)).
Failing to start or leaving your option early
Once you have received your referral letter, if you fail to start your option without showing "good cause" (see below) and you go back to the Jobcentre within 13 weeks, your claim for JSA will be sent to a decision maker and you could lose benefit for 2, 4 or 26 weeks.
ES staff are told to "encourage [you] to start on your option or an alternative". If you agree to start an option, you will receive the wage or allowance for that option, so you should not lose any money. If you avoid the sanction by starting your option and then drop out at a later date, even if you do have good cause this time, you will be expected to serve the original sanction if your new claim is within 13 weeks of the original failure to attend.
If you leave your New Deal option before it finishes and you cannot show that you had good cause, you will become eligible for the 2, 4 or 26-week sanction. However there is a possibility that this may not affect you. Your ES personal adviser will be able to advise you about the opportunity to be rapidly re-referred back to your option or to an alternative without being sanctioned. ES guidance tells personal advisers to "encourage [you] to return to your option" (NDPG (18-24), Ch 9, para 52).
If you fail to attend your option and stop signing on, the Government has said that you "will be contacted by the ES personal adviser who will try to discover [your] reasons and to offer further help". The ES adviser will encourage you to return to your option (NDPG (18-24), Ch 9, para 52).
Good cause for failing to start your option or leaving early
The benefit rules set out guidelines for decision makers to use when deciding whether you have good cause for not attending a compulsory programme. The same guidelines apply to your New Deal option.
Decision makers are instructed to examine whether any of the following issues affect you and provide you with good cause (JSA Regs, reg 73):
This list is not exhaustive so you can try to argue that different circumstances provided "good cause" for your actions.
When your case is referred to a decision maker because you are facing a sanction, you will be sent a form which asks for your side of the story. The form gives you the opportunity to provide "good cause". The form will specify that you must complete and return it to the Jobcentre within 7 days of it being issued. Note that this means that you do not have 7 days to complete the form – the Jobcentre must receive it back from you no later than 7 days after they first issued it to you. It is a good idea to get independent advice on how best to proceed by contacting your local Citizens Advice Bureau or another welfare rights agency, but, regardless of this, make sure that you return the form on time with your comments.
If you do not provide any comments on this form, or you do not return it in good time, it is more than likely that the decision maker will impose a sanction because s/he will only have information supplied by the ES New Deal personal adviser. If you believe that you had a justifiable reason for non-attendance, you should include as much information as possible about this on the form. Check the list of "good causes" for not attending (see above) to see if you were covered by them. However, even if you are not, this may not matter – the decision maker can accept other reasons that you give.
Once all the evidence is submitted to the decision maker by the ES New Deal personal adviser, you should be sent a Notification Submission letter saying that a decision maker is examining the sanction submission. This letter also recommends that you continue to sign on in the meantime. You should comply with this and continue signing on unless you have already agreed to return to your option or to an alternative.
When you are faced with the possibility of a New Deal sanction, it is very important to speak to your ES personal adviser. If s/he can offer you an alternative option which may be more suitable, you can avoid any loss of money by attending your old option or an alternative. In these circumstances, you would lose benefit only if you dropped out of your option later on and claimed JSA again. If you claim JSA more than 13 weeks after you originally dropped out of the option without good cause, you will not be sanctioned.
It is important to remember that when you are on the New Deal, if you are sanctioned for 2, 4 or 26 weeks and you still refuse to attend a New Deal option, you can be sanctioned again and again until you agree to attend an option.
ES guidance says that if the decision maker decides that you have failed to show good cause or you were dismissed from your option for misconduct, you should be interviewed immediately if you are still on JSA (some people may already have chosen to go back on to an option). At the interview, you will be re-referred to your option. Guidance goes on to say that the re-referral process, and any subsequent adjudication action because you fail to start, must be undertaken quickly.
Hardship Payments on the New Deal
Guidance to Jobcentre staff says that "some jobseekers who receive a sanction related to a New Deal option may be able to receive JSA on the grounds of hardship" (NDPG (18-24), Ch 9, para 13). However, the hardship rules are even more punitive under the New Deal than under JSA. The guidance goes on to point out that jobseekers "not in a vulnerable group will not normally have access to hardship payments during any part of a sanctioned period" (NDPG (18-24), Ch 9, para 13). This means that, in contrast to jobseekers sanctioned under JSA rules, if you are not in a vulnerable group (see page *), you will not be entitled to any Hardship Payments even after 2 weeks.
Hardship Payments are reduced payments of Income-based JSA. If you are in a vulnerable group (see page *), you will be able to receive reduced Income-based JSA if you can demonstrate to a hardship officer that you or a member of your family will experience hardship without payments.
Hardship Payments are made at 60% of Income-based JSA unless you or a member of your family is pregnant, or seriously ill, in which case you will receive 80% of your JSA.