This factsheet was prepared as supporting material for Disability Alliance's Tribunal Support Unit seminar employment & support allowance – a year to go. The Tribunal Support Unit is sponsored by the Big Lottery Fund.
When the new employment and support allowance is introduced on 27 October 2008, new claimants for the benefit will be subject to the ESA work capability assessment (WCA) which is more complex than that currently used for incapacity benefit. Claimants will be assessed to see whether they are placed in the ‘support group’ or the ‘work-related activity group’. Those placed in the latter will also be subject to the ‘work-focused health-related assessment’ (WFHRA).
The assessment phase for ESA will last for 13 weeks. Claimants will be asked to attend a work-focused interview around 8 weeks after they put in a claim. Some claimants (i.e. those in the work-related activity group) will have a further series of 5 interviews which they will be expected to attend. These will usually take place monthly although it will be flexible.
You can view the regulations for work-focused interviews at www.opsi.gov.uk/si/si2008/uksi_20080794_en_6#pt8-ch2-l1g54.
Sanctions can be imposed when a claimant fails without good cause to undertake assessments, interviews or activity as required.
Those entitled to the support component are specifically excluded from the requirement to undertake work-focused health-related assessments, work-focused interviews and work-related activity although they can volunteer to take part if they wish to do so.
ESA cannot be reduced below the rate of the ‘basic allowance’ which will be set at a similar level to that of JSA.
Failing to attend either the work-focused interview or the follow-up interviews which are mandatory, a sanction can be imposed. This can only apply to the additional payments of ESA, not the basic allowance.
When someone fails to take part in a work-focused interview and does not contact the benefit office within five working days of the date on which the interview was to take place to show ‘good cause’ for not attending a ‘failure decision’ can be made and a sanction will follow.
Where a sanction is made it will be a reduction of 50% of the additional element (the work related activity component) for a period of four weeks. This can be increased to a further reduction of 100% for an indefinite period or until compliance takes place. Once compliance takes place the payment of the additional element will commence payment but there will be no backdating.
You can view the regulations for benefit reductions at www.opsi.gov.uk/si/si2008/uksi_20080794_en_6#pt8-ch3.
The regulations contain a list of considerations which must be made in determining ‘good cause’ for failing to take part in a work-focused interview. The list includes provision where there could be a misunderstanding due to learning, language or literacy difficulties, attending medical or dental appointments or related to a physical or mental condition which made it impossible for attendance.
You can view this list at www.opsi.gov.uk/si/si2008/uksi_20080794_en_6#pt8-ch2-l1g61.
Before sanctions are imposed the safeguard procedures in place in Pathways to Work are to be put in place. These are recognised as particularly important for claimants with mental health conditions and home visits can be arranged if a sanction is to be imposed.
The safeguards are not set out in regulations but are contained in operational guidance and are listed below:
• Advising the customer at the point of claim about the work-focused interview process;
• Contacting the customer before each work-focused interview to remind them that it is due;
• Considering in the context of each work-focused interview whether the interview should be waived or deferred;
• Notifying the customer of the date, time and place for the work-focused interview and asking them to get in touch if they cannot make it;
• Offering them a more convenient location or a home visit where appropriate, and encouraging advocacy support if needed;
• Identifying any relevant issues from medical evidence where available, that might impact on attendance;
• Visiting those customers with whom there has been no verbal contact prior to the work-focused interview;
• Visiting every customer, with their representative if appropriate, with a stated mental health condition or learning disability if a sanction is to be imposed; and
• Lifting all sanctions and reinstating benefit in full when the customer participates in a work-focused interview.
Personal advisers will have the power to waive (cancel) or defer (rearrange) a work-focused interview in certain circumstances.
Waiving an interview can occur for example when a claimant is very close to returning to employment and they have a start date for a job but will not be used more widely.
Deferring an interview may be appropriate for a range of circumstances including:
• a worsened fluctuating condition
• a period in hospital
• inability to attend because of an illness
• transport problems on the day
• recent bereavement
• caring responsibilities (e.g. for someone severely disabled or terminally ill)
• claimant is in the late stages of pregnancy.
The length of the deferment will depend upon the circumstances and can be for a range of periods. This will, of course, mean that the period over which claimants are required to take part in work-focused interviews will be longer for some claimants.
Only decision makers will have the power to apply sanctions and the administrative function of applying a sanction will remain within Jobcentre Plus.
This factsheet is based on the information available at the time it was written. As we find out more it will be updated. You should regularly check our website at www.disabilityalliance.org for these updates and any other information we post.
You can also obtain copies of our factsheets by contacting Disability Alliance on 020 7247 8776 (voice and minicom) or by fax on 020 7247 8765.
For more detailed information Disability Alliance will be producing an employment and support allowance guide later in the year. This is now available to order.
May 2008
