A Scottish academic has published analysis showing a dramatic rise in the number of people successfully appealing against decisions to stop their benefit payments.
Rising rates of successful appeals have been seen as a sign that the system for penalising those deemed to have broken job-seeker agreements is flawed.
Dr David Webster described the latest figures as “sensational” as they show nearly nine in 10 of those who challenge decisions to stop benefits at a tribunal now have their appeal upheld. However only a few of those who are “sanctioned” by having their payments stopped ever appeal.
Department for Work and Pensions (DWP) figures reveal that over the period from October 22, 2012 until September 30 last year, 58% of those sanctioned successfully appealed against the decision.
However Dr Webster, of the Urban Studies School of Social and Political Sciences at Glasgow University, said the most recent quarter has seen a more dramatic rise. In the three months to September 30, the figure has risen to 87%, he says.
“There has been a sensational increase in the success rate of claimants at tribunal. It has been going skywards since May 2012. Tribunals are now upholding almost nine out of 10 appeals against the DWP. But only one in 50 claimants appeals.”
The backdrop to this is an ongoing acceleration in the number of people claiming benefits who are falling foul of rules under the job-seeker’s agreements which tie benefit payments to a responsibility to actively seek work.
Citizens Advice Bureaux and other welfare advice agencies report increasing concerns over decision making which they say is often unfair or arbitrary. While most agree people who claim benefits should be genuinely looking for work if they are able to, anecdotal evidence suggests Job Centres are imposing penalties based on requirements that are unrealistic or unfair.
> Anecdotal evidence ? Like its only a rumour or something ?
There have also been repeated claims that staff are given targets to sanction more claimants, and equally repeated denials from the DWP that this is the case.
Nevertheless, across the UK the number of people sanctioned in the year to September 30, 2013 was 874,850, the highest since Jobseeker’s Allowance was introduced in 1996. More than 75,000 of the these sanctions were in Scotland.
Much of the increase has come under the Coalition government – the figure in the last year of the Labour government was 500,000.
The rate at which sanctions are being applied is also accelerating, Dr Webster’s analysis shows. Under Labour 2.46% of claimants were sanctioned each month, but the average under the Coalition is 4.46% a month so far, and rising.
Figures for the whole of last year show 5.11% of claimants were sanctioned each month last year, Dr Webster says, and over the last three months the figure is 6%.
“These are the highest rates recorded since the start of JSA in 1996,” he explains.
Although sanction figures for those receiving the benefit for sick or disabled job seekers, Employment Support Allowance, are lower, they too are rising.
The new figures show 22,840 sanctions for ESA claimants in the last year, the highest for any 12-month period since sanctions were introduced in 2008. More than 1500 of these were in Scotland.
According to Dr Webster the low level of appeals against sanctions reflects the difficulty of the process. Only 2.44% of those who were penalised appealed in the last three months. “The vast majority of claimants find the process too difficult,” he said.
The reasons why people are given sanctions has also changed markedly in recent years. Dr Webster says the most likely reason for sanctions is failing to participate in an employment or training scheme, or failing to actively seek work.
Historically, leaving a job or being dismissed from it for misconduct were the most common reasons someone might be disqualified from benefit, he says.
“Since the start of the recession, they’ve hardly featured at all. Abundant historical evidence shows that is because people are more careful to hold on to a job when they know it is more difficult to get another,” he says.
Another striking finding from the recent statistics relates to the government scheme to help long-term unemployed people find work.
The Work Programme may be finding work for some, but it is also fuelling the sanctions regime, Dr Webster says. “To date, Work Programme contractors have been responsible for twice as many sanctions on the people referred to them as they have produced ‘job outcomes’ – a job placement which lasts for a certain minimum period.”
The comparison shows that across the UK, the firms contracted to run the Work Programme have delivered 198,750 such job outcomes, but made referrals resulting in 394,759 sanctions, the academic’s figures show. This might be even higher, but the figures also show that about 30,000 sanctions decisions for people on the programme are cancelled every month – most usually because the paperwork for the referral has not been properly completed.
Dr Webster says: “It appears that Work Programme contractors are making mistakes in their paperwork on a big scale – even though one of the things they are supposed to help claimants with is filling in forms.”
There is an irony in this, he says. “Claimants are being given severe sanctions for making similar mistakes.”
A DWP spokesman said: “It’s only right that people claiming benefits should do everything they can to find work if they are able. The rules regarding someone’s entitlement to Jobseekers Allowance are made clear at the start of their claim.
“We will provide jobseekers with the help and support they need to find a job, but it is only fair that in return they live up to their part of the contract.
“Sanctions are used as a last resort and anyone who disagrees with a decision can appeal.”
The fact only a small proportion of sanctions decisions are appealed means decisions makers get the “vast majority” of decisions right, he said.
The Work Programme has delivered 208,000 job outcomes so far, he added, and while nearly 395,000 sanctions have been issued through the work programme, only 208,000 individuals have been sanctioned.
Source – Herald Scotland, 28 Feb 2014
Ah yes… the Jobseeker’s Agreement (JSAg). What exactly is it ?
The JSAg form itself informs us that : “This agreement sets out my availability for work and the things I will do each week to actively seek work”, which all sounds reasonable enough, and indeed would be if that was all it was.
Unfortunately, since the Jobcentre’s role has shifted from “helping you to find work” to “stopping your benefits by any means”, it has become another instrument of sanction, with advisers pushing claiments into signing JSAgs which effectively set them up for sanctions.
YOU SHOULD BE VERY CAREFUL WHEN SIGNING A JSAg.
If you dont agree with what they present you with, don’t sign it. Your Jobcentre adviser may give you the impression (or even tell you outright) that you must sign it or face a sanction. This is not true. With a little determination you can negotiate something you feel you can live with.
Have you considered what the JSAg is on a legal level ? I was wondering about that and have been trying to work out exactly it’s standing is, and how that might affect us, the potential sanctionees.
I must say outright that I have no legal background, and everything herein is just how things appear to be to me, having researched the subject to the best of my ability – if you have experience that counteracts anything here please add it to the commments. However, I am in the process of testing the theory right now in my own JSAg negotiations (I’ve stretched them out to 3 sessions so far !) so I am at least putting my money where my mouth is.
That said, it seems to me that the JSAg is a contract, a legal document, and therefore subject to English common law. This is important, because it gives you certain protections. Your adviser is not above the law (although they may seem to think they are) but they probably have little or no understanding of what they are actually doing legally. This gives you at least a little leverage.
In order for a contract to be formed, the parties must reach mutual assent – that means you have to agree to it. If you dont, refuse to sign and attempt to negotiate the points you dont like.
Basically, it seems to boil down to this –
A party must have capacity to contract –
The purpose of the contract must be lawful
The form of the contract must be legal
The parties must intend to create a legal relationship
The parties must consent
I think we have to assume that you (and your adviser) are mentally competent, and that the form of the contract is legal. The purpose of the JSAg and whether both parties intend it to be legal are grey areas.
The last one is the most important here – the parties (plural) must consent. So if you dont, for whatever reason, do not sign.
There are what are described as a “ variety of affirmative defenses that a party may assert to avoid his obligation”. These are –
Incapacity, including mental incompetence and infancy/minority
Misrepresentation or fraud
Frustration of purpose
Duress, Undue Influence and Misrepresentation seem the most likely reasons for refusing to sign a JSAg in my experience. Indeed, the adviser I’m currently negotiating mine with has attempted all three !
Some people will suggest that you write “signed under duress” on any JSAg you sign but dont agree with. Better by far NOT TO SIGN AT ALL, but I realise people react differently and you may not feel able to stand up to a bullying adviser. Hopefully this may help give you some confidence, knowledge is power.
Remember – it’s down to you. No-one else can do this for you.
Duress in the context of contract law is a common law defense, and if one is successful in proving that the contract is vitiated by duress, the contract may be rescinded, since it is then voidable.
Helpfully duress can be divided into Physical duress and Economic duress. Assuming your adviser hasn’t actually threatened you with a thumping if you dont sign, economic duress is most likely to be your friend –
A contract is voidable if the innocent party can prove that it had no other practical choice (as opposed to legal choice) but to agree to the contract.
The elements of economic duress
Wrongful or improper threat: No precise definition of what is wrongful or improper. Examples include: morally wrong, criminal, or tortious conduct; one that is a threat to breach a contract “in bad faith” or threaten to withhold an admitted debt “in bad faith”.
No reasonable alternative (but to accept the other party’s terms). If there is an available legal remedy, an available market substitute (in the form of funds, goods, or services), or any other sources of funds this element is not met.
They might argue that an alternative income is available by getting work. However, you might counter that you wouldn’t be claiming if you could find any, and would be left without an income without benefits. If the adviser infered your benefits would be stopped if you didn’t sign, then I’d say that was exconomic duress. But of course I’m not a lawyer.
The threat actually induces the making of the contract. This is a subjective standard, and takes into account the victim’s age, their background (especially their education), relationship of the parties, and the ability to receive advice.
This might be a viable reason for some, and advisers are known to target the more vulnerable.
The other party caused the financial distress. The majority opinion is that the other party must have caused the distress, while the minority opinion allows them to merely take advantage of the distress.
Misrepresentation has some potential too –
Misrepresentation is a concept in contract law referring to a false statement of fact made by one party to another party, which has the effect of inducing that party into the contract.
So if they say you must sign there and then – that’s misrepresentation.
Generally, statements of opinion or intention are not statements of fact in the context of misrepresentation. If one party claims specialist knowledge on the topic discussed, then it is more likely for the courts to hold a statement of opinion by that party as a statement of fact.
An adviser, I would think, certainly claims specialist knowledge – its inherent in the term adviser.
Well, there’s some points there for you to consider. I repeat that I have no legal training, but I think the above is correct so far as it goes. At least it gives you a slight advantage (as your adviser probably knows none of this) and a slight leverage. It would hopefully give you an advantage if you go as far as an independent appeal (as I intend to do if necessery).
Remember – the aim is not to take the DWP to court – it’s to negotiate a JSAg that you can live with and one that’s not going to set you up for a sanction.
I’ll be publishing my on-going JSAg negotiation experiences over the next week or so, check back to see how the theory fares in reality.