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Challenging sanctions
What sanction decisions can be challenged?
Any decision to impose a benefit sanction by reducing benefit entitlement can be
challenged.
How can a benefit sanction be challenged?
A sanction can be challenged in the same way as any other type of social security
decision i.e. by requesting a revision (‘mandatory reconsideration’) and then
appealing to an independent tribunal.
Note, however, that:

There is no right of revision or appeal until a decision to impose a sanction
has been made. Where, for example, you are unhappy about a particular
work-related requirement but have not yet been sanctioned, or jobseeker’s
allowance (JSA) has been suspended while the DWP decide whether to
impose a sanction, you can only make representations to get the requirement
withdrawn, the suspension lifted, or a decision issued to you.

You have a legal entitlement to a written decision if a sanction is applied, but it
may be necessary to chase this up. Following the Oakley review on sanctions
the Government has confirmed that benefit should never stop due to a
sanction prior to you being given notification of the decision. It also pledged to
abolish the procedure whereby JSA was suspended pending an ‘actively
seeking work’ sanction decision.
Is benefit payable while a decision is being challenged?
There is no provision for payment of the sanctioned amount of benefit while a
sanction is being challenged, but you may be eligible for another benefit, a hardship
payment or local welfare assistance.
On what grounds can a sanction be challenged?
A sanction can be challenged on the grounds that:

there was no legal basis to impose a sanction on you (e.g. because there was
no power to impose the relevant work-related requirement on you);

you were not properly notified about a requirement;

the alleged failure to carry out the requirement did not occur;

you had ‘good reason’ or ‘good cause’ for the alleged failure;

the amount of, or length of, or the start date of the sanction was contrary to
the law (e.g. where there is a dispute about whether and when there was a
sanction in the previous 52 weeks)
Note that the 52 week period during which a second sanction occurs runs from the
date of the previous ‘sanctionable action, and not from the date of the sanction
decision. It may be possible to challenge an earlier sanction which could result in a
shorter later sanction.
It is often helpful to go through a checklist of the above points when considering
possible grounds for challenging a sanction.
The rest of this section examines common grounds for challenging different types of
sanctions.
On what grounds can a JSA ‘Work Programme’ sanction be challenged?
The ‘Work Programme’ is a shorthand term for a number of schemes aimed at
assisting JSA and ESA claimants to take up work. The full list of schemes is set out
in regulations.1 See also Chapter 34 of the Decision Maker’s Guide (DMG) which
gives detailed guidance to DWP decision-makers. Most JSA claimants are referred
to the Work Programme by a Jobcentre Plus personal adviser after claiming benefit
for 12 months (if aged over 25) or 9 months (if aged 18-24).
Failure to ‘participate’ in the Work Programme without a ‘good reason’ when properly
notified to do so can result in a sanction of four weeks loss of JSA, or 13 weeks if
you have already had a four week sanction in the previous 52 weeks. The same
sanction can be imposed if you, without ‘good reason’, fail to take up an opportunity,
or fail to apply for or accept, or give up or lose through misconduct, a place, on a
training scheme or employment programme.2 The rules are set out in more detail on
p1092-1097 of the Handbook.
The Work Programme is administered by contracted providers who are paid by
results (i.e. the number and longevity of work placements). The DWP issues detailed
guidance to Work Programme providers, including what they can require you to do
and what happens if they want to raise a “compliance doubt”. ‘Personal advisers’
working for these providers can report sanctionable offences to the DWP, but only a
DWP decision-maker can impose a sanction. Note that it may be possible to avoid a
sanction by arguing that you should not be selected for participation on a scheme.
Possible grounds for challenging a JSA work programme sanction include:
1.
NOTIFICATION FAILURES
You must be given written notice of the requirement to participate in the programme.
This must include details of what you are required to do by way of participation, the
start date and the consequences of failing to participate.
Following a Supreme Court decision in a case called Reilly, if you are not given
sufficient information about the programme before being given a notice, or
insufficient detail is contained in the notice about what you are required to do (as
opposed, for example, to ‘any activities’), you may be able to argue that the notice is
invalid.
The case law on notification is very complex. You should check CPAG’s website for
the latest information about this issue. Note also that a sanction for failure to apply
for, or accept a place on, a training scheme or employment programme can only be
imposed if a vacancy is properly notified to you, whether orally or in writing.
2.
NO FAILURE TO PARTICIPATE
You may be able to argue, on the facts of your case, that the alleged failure to
participate in the Work Programme did not, in fact, occur. There is no definition of
what constitutes participation, so each case will turn on its individual details of what
you were required to do (this links with the notification point above) and have
allegedly failed to do.
There may be similar factual disputes about whether you failed to apply for, or
accept a place on, a training scheme, or gave up a place or lost it through
misconduct.
3.
GOOD REASON FOR A FAILURE
There is no definition of a ‘good reason’ in the rules, so each case must be argued
and decided on its merits and individual circumstances, taking in account all the
relevant evidence. The DMG (see para.34200 onwards) gives detailed guidance to
DWP decision-makers on what could or could not constitute a good reason and it
may be helpful to refer to or quote any paragraphs or examples which are favourable
to your case
Examples of the circumstances which should be treated as contributing to good
reason for an action or failure include if you are a victim of domestic violence,
have a mental health condition or disorder, are a victim of bullying or harassment,
are homeless, or where you lose or leave a work experience opportunity or
placement other than for reasons of gross misconduct. See also p1107-11 of the
Handbook.
The test of whether there is a ‘good reason’ also applies to a failure to take up a
reasonable opportunity, or apply for or accept a place on, a training scheme or
employment programme, or giving up such a place. Clearly each case will be
different and must be argued on the basis of detailed representations and any
supporting evidence.
Note also that the power to require you to take part in the Work Programme is
discretionary and should therefore be exercised rationally and reasonably, taking in
to account the individual circumstances of each case. Refusing to undertake an
unreasonable requirement may constitute a ‘good reason’.
On what grounds can a JSA ‘actively seeking work’ sanction be challenged?
One of the conditions of entitlement to Jobseeker’s Allowance (JSA) is that you are
‘actively seeking employment’. No JSA will be payable unless you satisfy this
condition. In addition, a sanction of four weeks loss of JSA, or 13 weeks if you have
already had a four week sanction in the previous 52 weeks, is imposed if your JSA
stops because you are treated as no longer actively seeking work and you then
reclaim JSA within 13 weeks of your previous claim stopping.
Note that any period after the 13 weeks cannot be subject to a sanction, the period
of the sanction is reduced by the previous period of non-entitlement, and a sanction
cannot apply if there is no entitlement to JSA when you reclaim because, for
example, you are still not actively seeking work or available for work.3 The rules are
set out on p1097/8 of the Handbook.
You are actively seeking work if you take such weekly steps as can reasonably be
expected to have the best prospects of securing employment.4 You must take more
than two steps a week unless taking fewer (or no) steps is reasonable. The JSA
Regulations 1996 (regulations 18 to 22):

give examples of what constitutes a ‘step’ (e.g. drawing up a CV, registering
with an employment agency and applying for jobs);

state that account must be taken of all your individual circumstances (e.g.
skills, qualifications, abilities, physical or mental limitations) and the availability
of job vacancies;

disregard steps where you are abusive or violent, or your behaviour or
appearance undermines your job prospects;

treat you as actively seeking work in specified circumstances.5
Full details of the rules can be found in Chapter 48(3) of the Handbook. Detailed
guidance on the question of actively seeking work for Department for Work and
Pensions (DWP) decision-makers can be found in Chapter 21 of the Decision
Makers Guide.
The following grounds for challenging a sanction are also relevant for challenging
non-entitlement decisions relating to actively seeking work failures.
1.
YOU SHOULD BE TREATED AS ACTIVELY SEEKING WORK
The grounds on which you are treated as actively seeking work are set out in
regulations. They are also on p1041/3 of the Handbook. It is always worth checking
whether your circumstances fall within any of the categories, as the DWP may have
wrongly disregarded or not been aware of this.
Note also that a sanction cannot apply if you were treated as actively seeking work
for a reason which no longer applies, resulting in the termination of JSA, and the
DWP considers a sanction is not appropriate (e.g. because you were on an
employment-related course for more than two weeks).6
2.
YOU WERE ACTIVELY SEEKING WORK
Whether you have taken sufficient steps to satisfy the requirement to ‘actively seek
employment’ involves the use of judgement by decision-makers, taking into account
all the circumstances of your individual case and what is ‘reasonable’ in the light of
those circumstances. The grounds for disputing a decision, therefore, are normally
that you have taken the steps you can reasonably be expected to take in the relevant
weeks to have the best prospects of securing employment and that the decisionmaker has failed to take all the relevant circumstances into account. This normally
involves setting out detailed evidence (preferably written evidence) of the relevant
steps and circumstances.
A decision that you are not actively seeking work will frequently refer to your
claimant commitment which includes details of your agreed steps to find work. A
decision that you are not actively seeking work will frequently refer to your 'claimant
commitment' which includes details of your agreed steps to find work. Note that the
JSA rules refer to a 'jobseeker's agreement' rather than a claimant commitment (the
DWP is calling the jobseeker’s agreement a ‘claimant commitment’ in readiness for
the tougher conditionality regime attached to Universal Credit). Entering into a
jobseeker’s agreement (which remains in force) is a condition of entitlement to JSA,
but there should be no sanction for failing to undertake all the activities set out in the
agreement.
The contents of your claimant commitment are clearly relevant evidence to the
question of whether you were actively seeking work at the relevant time. So where,
for example, you have undertaken all or most of the steps you have agreed to , you
would have a strong argument that you were actively seeking work and that there
was no requirement to carry out further steps.
Even more significantly, the failure to carry out all or some of the steps set out in
your claimant commitment does not, in itself, mean that you were not ‘actively
seeking work’. This is particularly relevant where the commitment includes many
more steps than the legal test of ‘at least three’.
Case law 7has confirmed that whether you are actively seeking work test is a test of
what you did, not what you did not do. The test is whether you took such steps as
you were reasonably required to take to secure the best prospects of obtaining
employment, and not whether you took the steps set out in your claimant
commitment. It involves considering whether you should have taken at least three
steps in the relevant week, or whether fewer steps were reasonable; what steps
were taken; and whether those steps were reasonable. If you satisfy the test, it is
irrelevant that you failed to take other steps, whether or not they were in your
claimant commitment.
Where the DWP has disregarded a step on the grounds that you were abusive or
violent, or because of your behaviour or appearance, it may be necessary to
question the facts and /or judgment of the decision-maker.
On what grounds can a ‘high level’ JSA sanction be challenged?
Your Jobseeker’s Allowance (JSA) can be reduced to nil if you:





lose your job as an employee because of ‘misconduct’;
voluntarily leave a job as an employee ‘without a good reason’;
refuse to apply for or accept a job offer ‘without a good reason’;
‘neglect to avail’ yourself’ of reasonable opportunity of employment ‘without a
good reason’;
fail to participate in ‘Mandatory Work Activity’ without a good reason.8
The sanction lasts for 13 weeks, 26 weeks (if there has been a previous high level
sanction in the preceding 52 weeks) or 156 weeks (if there has been more than one
previous sanction in the preceding 52 weeks).9
The rules are set out in full on p1086-8 of the Handbook. It is important to check in
all cases that a 26 or 156 week sanction has been correctly applied and that any
sanction period has been correctly calculated taking into account the rules set out on
p1087 of the Handbook (‘reduced sanction periods’). Guidance on sanctions for
decision makers in the Department for Work and Pensions (DWP) is given in
Chapter 34 of the Decision Makers' Guide (DMG).
1 LOSING A JOB DUE TO MISCONDUCT
The sanction can apply if you leave employment due to misconduct following
dismissal, resignation or suspension. ‘Misconduct’ is not defined in the rules but
there has been a long history of case law on what constitutes misconduct and this is
reflected in official guidance to decision makers. The main principles are covered on
p1105/6 of the Handbook. There is also detailed guidance in paragraphs 3453134636 of Chapter 34 of the DMG.
Misconduct suggests an element of blameworthiness. In particular, it means ‘such
misconduct as would persuade or oblige a reasonable employer to dismiss
employees’ because, considering their misconduct, they are no longer fit to hold their
employment. Misconduct is conduct which is connected, not necessarily directly, with
your employment. Taking into account the relationship of employer and employee
(and rights and duties of both), misconduct must be conduct that can fairly be
described as blameworthy and wrong.
Everyone makes mistakes or is inefficient from time to time. So, for example, if you
are a naturally slow worker who, despite making every effort, cannot produce the
output required by your employer, you are not guilty of misconduct even if the poor
performance may justify your dismissal. You are guilty of misconduct only if your
actions or omissions are ‘blameworthy’. This does not mean it has to be established
that you did anything dishonest or deliberately did something wrong - serious
carelessness or negligence may be enough.
Note that DWP decision makers should not impose a sanction for misconduct if there
is evidence from a medically qualified person that, at the time of the alleged
misconduct, you were suffering from a mental illness and not responsible for the
actions in question. Also, if details of a zero-hours contract come to light after you
start work, you will always have good reason for leaving voluntarily or due to
misconduct, and a sanction should never apply.
If there was misconduct, the DWP must establish that it caused the loss of the
employment. In this context it need not have been the only cause, but must have
been ‘an immediate and substantial cause’, but if the reason was actually
unconnected to misconduct (e.g. the employer has used this as an excuse to dismiss
you), there should be no sanction. Your evidence and that of your previous employer
will clearly be crucial, but any supporting evidence from a third party could decisively
tip the ‘balance of probabilities’.
2 LEAVING A JOB VOLUNTARILY WITHOUT A GOOD REASON
‘Voluntarily’ is not defined in the rules but there has been a long history of case law
on what can constitute voluntarily and this is reflected in the official guidance to
decision makers. The main principles are covered on p1106/7 of the Handbook (note
also the points about taking retirement on p1107). There is also detailed guidance in
paragraphs 34426-34506 of Chapter 34 of the DMG.
If you did leave a job voluntarily, you must establish that this was done for a ‘good
reason’. See p1110 of the Handbook. Note also the rules about ‘trial periods’ on
p1090. This involves showing you acted reasonably and your circumstances make it
proper that public funds should support you. There are no hard and fast rules as to
when you have a good reason because the circumstances can vary so much. DWP
decision makers should consider all the relevant circumstances which could include
caring responsibilities, childcare expenses, or poor employment conditions.
‘Good reason’ is also relevant to whether you left a job ‘voluntarily’. If your terms
and conditions are changed by your employer, and you leave your job, this may not
be sufficient to show that you did not leave voluntarily. Similarly, retiring from your
job simply because you have reached retirement age may mean you are still treated
as leaving voluntarily.
You may have good reason for leaving employment if you had a genuine and
substantial grievance about the employment (other than the level of pay) and you
had tried in a proper and reasonable way to get it settled, but failed. If your employer
persistently breaches health and safety law or does not pay you, then you would
have good reason for leaving the paid work.
You should be given an opportunity to show that you had ‘a good reason’ for leaving
a job before a sanction is imposed, so you should make detailed representations
backed up by any supporting evidence (e.g. from your former employer).
3 REFUSING TO APPLY FOR OR ACCEPT A JOB OFFER WITHOUT A GOOD
REASON
Relevant issues here can include whether you were notified and given sufficient
information about the relevant job vacancy by the DWP or Work Programme
Provider (if this did not happen, no sanction should apply).and whether you acted
unreasonably when pursuing the vacancy. See p1089 of the Handbook for the
circumstances in which you can be treated as refusing to apply for, or accept, a job.
You can find more about what counts as a ‘good reason’ for failing to apply for a job
at paragraph 34200 onward of Chapter 34 of the DMG.
Whether you had ‘a good reason’ for failing to apply for or accept a job will depend
on all the circumstances of your case. The job should be suitable for you, taking into
account your wishes, personal circumstances and the local labour market and any
unavoidable work expenses (e.g. transport, child care and equipment) should not
amount to an unreasonably high proportion of earnings. The level of pay should be
suitable and not place you, or your, family at risk of hardship. Jobs must pay at least
the minimum wage and comply with the Working Time Regulations 1998. You
cannot be ordered to apply for a zero hour contracts, Work Trials, or selfemployment. See p1109 of the Handbook for what could constitute a good reason.
If you fail to apply for or accept a job notified to you (or turn up late for, or behave
inappropriately at, an interview), the DWP will write to you stating your JSA will be
sanctioned unless you can show you had a ‘good reason’ for the failure. Note that
travelling time of less than 90 minutes each way cannot constitute a good reason
unless it is unreasonable because of your health or caring responsibilities. 10 The
DMG states that the rate of pay is not, in itself, a good reason for refusing a job, but
work-related expenses which form an unreasonably high proportion of earnings
could be.
Note also the possible relevance of the legal minimum working conditions, referred
to on p1109 of the Handbook.
4 ‘NEGLECTING TO AVAIL’ WITHOUT A GOOD REASON
This failure overlaps somewhat with the one above. It covers situations where you
apply for or accept a job but then act in a way which compromises the opportunity
(e.g. by dressing or behaving inappropriately), or you fail to return to work with a
former employer after a temporary break. See above for what could constitute a
‘good reason’.
5 FAILING TO PARTICIPATE IN MANDATORY WORK ACTIVITY WITHOUT A
GOOD REASON
Mandatory Work Activity is a compulsory scheme which provides four weeks work.
Aside from the question of ‘good reason’ (see above), the issue most likely to arise is
whether you received proper notification about the scheme and the requirement for
you to participate (see p1091 of the Handbook). A notice must specify: The notice
must specify:

that you are required to participate in the scheme,

the day on which the participation will start,

that your participation is for four weeks,

the details of what is required by way of participation,

that you are required to participate until notice is given by the Secretary of
State that participation is no longer required or the award of JSA ends,
whichever is earlier,

the consequences of failing to participate in the MWA scheme.
There is ongoing and complex litigation about the notification requirements. See the
CPAG website for the latest information.
On what grounds can an ESA ‘work-related activity’ sanction be challenged?
If you are claiming Employment and Support Allowance (ESA), you can be required
to undertake ‘work-related activity’ (WRA), unless you are exempt. WRA is activity
which makes it more likely that you will obtain or retain employment. Exemptions
include if you are in the ‘support group’, a lone parent responsible for a child under
three, or you are entitled to a carer’s allowance or carer premium11. The rules are set
out on p1061-2 of the Handbook.
The requirement and notification to undertake WRA can be made by Department for
Work and Pensions (DWP) advisers or Work Programme personal advisers if you
have been referred to the Work Programme. Your agreed WRA should be recorded
in a written action plan. Failure to undertake required WRA without ‘good cause’ can
result in a sanction of 100% of your ESA personal allowance (subject to being left
with at least 10 pence per week) until you comply or are no longer required to
comply with the requirement, plus a further fixed period of 1, 2 or 4 weeks
(depending on whether this is a first or repeat offence within the previous 52
weeks).12
The full rules are set out in Chapters 51(2) of the Handbook. Guidance for DWP
decision makers on the approach to work-related activity can be found in Chapter 53
of the Decision Makers' Guidance (DMG).
It may be possible to challenge a sanction on the following grounds:
1.
NOTIFICATION FAILURES
You must be notified of the requirement to undertake WRA in a written ‘action plan’
which must specify the WRA that you must undertake.13 You must also be given a
copy of your action plan. If you are not given a copy, there is no legal basis for
sanctioning you for failing to undertake the activity set out in the plan.
Failure to give proper notification of any WRA you are required to undertake may
invalidate a sanction, with reference to the case law relating to work programme
sanctions.
2.
NOT REQUIRED TO UNDERTAKE WRA
It is always worth checking whether you are legally required to undertake WRA (see
p1062 of the Handbook). You cannot be required to undertake WRA if you are:

in the ESA ‘support group’;

over state pension age;

a lone parent responsible for a child under 3;

a lone parent responsible for a child under 13, other than during normal
school hours;

entitled to a carer’s allowance or carer premium.
Note that WRA cannot include a requirement to apply for a job or undertake work of
any sort. WRA can include work experience or a work placement, but these should
be voluntary and you should not be sanctioned for failing to engage with work
experience (see para 53033 of Chapter 53 of the DMG).
Note also that a sanction should cease from the time you fall into one of the above
groups.
3.
NO FAILURE
There is no definition of what constitutes a failure although the ESA Regulations
refer to a sanction being imposed for each week that you fail to meet a ‘compliance
condition’. This is defined as a failure to undertake the activity specified in your
action plan or any alternative WRA notified by the DWP or a WRA that agreed to
undertake WRA on an agreed date.14
Therefore, if you did not fail to do the WRA that was required of you in your action
plan, you can challenge any sanction simply on this basis alone.
The question of whether you did or did not do what was required will depend on the
facts and evidence of each case, with particular reference to the detail set out in your
action plan.
4.
GOOD CAUSE FOR FAILURE
If you fail to undertake required WRA, you must show ‘good cause’ for your failure
within 5 working days of the date the DWP gives notice of the failure. If good cause
cannot be established, a sanction is imposed. The question of ‘good cause’ can then
be pursued by way of mandatory revision and appeal, subject to the normal time
limits for revision and appeal (i.e. the 5 day limit no longer applies).
There is no definition of ‘good cause’. Paras 53052/3 of Chapter 53 of the DMG
states that good cause can include whether your physical or mental health made it
impracticable to undertake WRA at or by a particular time; whether you were
prevented from undertaking WRA at or by a particular time due to unforeseen
circumstances such as a medical or dental appointment that could not reasonably be
rearranged; attending a funeral of a relative; or difficulties with caring responsibilities.
Other issues to be considered include whether you misunderstood the requirement
to undertake WRA due to language, literacy or learning difficulty, or whether any
misleading information was given by the DWP. These are not exhaustive reasons
and the DWP decision maker should consider all reasons given by you. Clearly each
case must be argued on its merits and individual circumstances, on the basis of
detailed representations and supporting evidence.
Note that the power to require you to undertake WRA is discretionary and should
therefore be exercised rationally and reasonably, taking in to account your individual
circumstances. Further, the Regulations state that any requirement ‘must be
reasonable...having regard to the person’s circumstances’. The DWP also has the
power to postpone a requirement if it would be unreasonable to require you to
undertake WRA at a particular time. Whether a requirement is reasonable clearly
depends on the details of your individual case, but refusing to undertake an
unreasonable requirement may constitute ‘good cause’.
Your physical and mental condition is likely to be of particular relevance. This may
include reference to the basis on which you were found to have ‘limited capability for
work’ (e.g. the descriptors you satisfied, or whether you were treated as having
limited capability for work to avoid a substantial risk to health). It appears that
decisions on what work-related activity you are required to do are normally made by
Work Programme advisers without reference to your ‘limited capability for work
assessment’ (e.g. as set out in medical report form ESA85). It is often relevant to
refer to this when arguing that it is unreasonable to require you to undertake an
activity which you have already been assessed by the DWP as unable to do (e.g. if
you have been told to attend a course at a particular location when you have already
been assessed as being unable to get to a specified place at all, or without being
accompanied).
On what grounds can a ‘work-focussed interview’ sanction be challenged?
You can be required to attend a work-focussed interview with a personal adviser
from the Department for Work and Pensions (DWP) or the Work Programme if you
claim Jobseeker’s Allowance (JSA), Employment and Support Allowance (ESA),
Income Support (IS) due to incapacity, or Incapacity Benefit (IB). You can be
sanctioned for failing to take part in an interview. More information on these
requirements is set out in Chapters 48(6) and 49(1) and (2) of the Handbook.
If you claim JSA, the sanction is four weeks loss of JSA (13 weeks for a subsequent
sanction within 52 weeks) for failure to ‘participate’ in a WFI ‘without good reason’.
The rules are complex, but normally apply where you are late for an interview
following a previous failure, or you fail to establish good cause within five days of a
failure to participate on a notified date. In some circumstances, entitlement to JSA
can cease altogether. The rules are set out on p1093 of the Handbook.
If you claim ESA, the sanction for failing to take part in a WFI without ‘good cause’ is
the loss of your personal allowance until you do take part or are no longer required to
take part in a WFI, plus a further fixed period of one week (or two or four weeks if
this is repeat offence within a year).
If you are claiming IS or IB, the sanction for failing to take part in a WFI without
showing ‘good cause’ within 5 working days (this can be extended up to one month)
is the loss of a fixed percentage of benefit until you do take part, or you are no longer
required to take part, in a WFI (see p1103 of the Handbook).
It may be possible to challenge a sanction on the following grounds:
1.
NO REQUIREMENT TO TAKE PART
It is always worth checking whether you were legally required to take part in a WFI or
are exempt, for example because you are in the ESA support group, or you are
responsible for a child under 1. See Chapters 48(6) and 49(1) and (2) of the
Handbook for the rules on who is required to attend interviews.
2.
NOTIFICATION FAILURES
You must be properly notified of the requirement to participate in a JSA WFI.
Notification can be in writing, by telephone or electronically. The law generally
assumes that a notification has been received if it has been properly sent, so you will
need to put forward good reasons why this assumption should not apply where you
are arguing that a notification was not received (e.g. continuing problems with a
postal address). If you can establish non-receipt, you cannot have failed to
participate in an interview (see R(JSA) 1/04).
ESA claimants must be notified ‘in writing or otherwise’ of the requirement to take
part in a WFI, including details of the time, date and place. Similar rules apply to IS
and IB. There can be no failure if there was no notification, but establishing this is
often difficult, particularly where the DWP can show the notification was sent or
given. The matter must be decided on the balance of probabilities taking into account
all the evidence.
3.
NO FAILURE TO PARTICIPATE OR TAKE PART
If you are claiming JSA, there is no definition of what constitutes ‘participation’ in a
WFI, but mere attendance is now insufficient (the rules also enable interviews to be
conducted by telephone). There is a requirement to actively take part in the interview
e.g. by answering questions and providing requested information.
If you are claiming ESA, ‘taking part’ in a WFI means attending it, or being available
for a telephone interview at the date and time notified, providing information about
qualifications, work history, skills, caring responsibilities and work aspirations and
participating in work-related discussions. The rules are set out in Chapter 49(2) of
the Handbook.
Whether you have ‘participated’ or ‘taken part’ in a WFI depends on all the facts and
evidence in each individual case.
4.
GOOD REASON OR GOOD CAUSE FOR FAILURE
There is no definition of a ‘good reason’ (for JSA) or ‘good cause’ (for other benefits).
See guidance on what is 'good reason' under the section On what grounds can a
JSA 'Work Programme' sanction be challenged. See guidance on what is 'good
cause' under the section On what grounds can a 'work-related activitty' sanction be
challenged.
1
JSA (Schemes for Assisting Persons) Regulations 2013
Section 19A Jobseekers Act 1995; Regs 69-75 JSA Regulations 1996
3
Section 19B Jobseekers Act 1995; Reg 69B JSA Regulations 1995
4
Section 7(1) Jobseekers Act 1995
5
Regs 18-22 JSA Regulations 1996
6
Reg 69B(5) JSA Regulations 1996
7
CJSA/1814/2007
8
Section 19 Jobseekers Act 1995
9
Regs 69 and 70 JSA Regulations 1996
10
Regulation 72 JSA Regulations
11
Section 13 Welfare Reform Act 2007 and ESA(Work Related Activity Regulations) Regulations 2011
12
Regs 63 and 64 ESA Regulations 2008
13
Reg 5 ESA (WRA) Regulations 2011: Reg 3 IS (WRA) and MA Regulations 2014
14
Regs 63(6) and (11) ESA Regulations 2008
2