by Alan Murdie

In late 2009 and early 2010, the payment of benefits is undergoing changes which could potentially see thousands of people losing part or all of their benefit. This is part of a crackdown on work-shy claimants which the Government is calling ‘the biggest shake-up of the benefits system for 60 years’.

You may already have your money cut (what is called being “sanctioned”) for a number of reasons, but the DWP is gearing up for sanctions on a grander scale than ever contemplated by any Government in the past.

The danger is this time that many thousands of wholly honest, innocent and job-seeking claimants may be caught up in this operation and find they and their families are left without  money, perhaps for weeks at a time.

If you are one of the people who suffers from a benefit cut then it is important to know that you have a right of appeal. Wherever possible you should get help or advice with a tribunal, but people can win them by themselves.

  CONTENTS  

• What type of sanctions are there?
• What will be covered in the new sanctions?
• What about drug testing?
• What benefits are at risk?
• What benefits may not be sanctioned?
• What about pensioners?
• Are there risks of you being sanctioned?
• How many people will be affected?
• Who makes the decision to sanction?
• What if you get sanctioned?
• What should you do if you are wrongly sanctioned?
• How long do you have to appeal?
• What happens next?
• What will the DWP do if the case goes to the Tribunal?
• What is the Tribunal?
• What arguments can be used at the Tribunal?
• What happens at the Tribunal?
• Can a friend come with me to the Tribunal?
• What evidence should the Tribunal look at?
• What sort of evidence can be considered?
• What happens at the end of the hearing?
• Are there further rights of appeal?

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 What type of sanctions are there?

You can have your benefit cut for failing to look for work, for missing meetings or checks at the job centre or failing to follow steps that an adviser tells you. Sanctions follow for convictions for certain offences such as benefit fraud. Benefits may also be cut off where you fail to supply information requested or are expected to supply. As a result, sanctions can happen when the Department for Work and Pensions (DWP) or local authority loose the information you send them.

 

What will be covered in the new sanctions?

Soon a policy of workfare will be introduced where claimants will be compelled to work in any job, simply to receive benefit. Sanctions may also be imposed where you have been fined for certain offences, or suffered a penalty, including offences for which you may be cautioned. These include alleged criminal acts committed towards benefit staff and could  potentially include as little as making a noise in the benefit office. The sanction may be imposed in response to a caution, so you may not even be convicted of an offence.

 

What about drug testing?

Included in the Welfare Reform Bill are regulations making powers to be used where a claimant is suspected of abusing drugs or alcohol.Ultimately, the Government wants to test claimants who are suspected of drug or alcohol abuse, and sanctions could be imposed where you refuse to be tested. Just how qualified job centre staff or hirelings will be to conduct such assessments remains to be seen.

What benefits are at risk?

Sanctions will be mainly aimed at unemployed claimants receiving Job Seeker’s Allowance or Employment and Support Allowance (income support is being abolished). Under the Bill “sanctionable benefit” can include housing and council tax benefit.

 

What benefits may not be sanctioned?

Certain benefits are likely to be excluded. These may include joint-claim jobseeker’s allowance; retirement pensions, disability living allowance, attendance allowance, child benefit and guardian benefit. Certain payments from the social fund and Christmas bonuses will be excluded. Sanctions may be imposed any period from one week up to 26 weeks.  Different rules will apply for couples with joint JSA claims.

What about pensioners?

Pensioners may potentially be treated more lightly, as the Secretary of State has a wide discretion. Perhaps with a view to media reaction and calls of ‘Scrooge’, the Christmas bonus is omitted from the list of sanctionable benefits.

 

Are there risks of you being sanctioned?

Yes. A DWP officer may make a mistake, gets your name confused with someone else, misunderstand the facts, loses your documents and details. Or you could simply fall victim to a careless or even a plain nasty individual who shouldn’t be in the job and takes it out on you the claimant. Or a sanction could be imposed out of incompetence, prejudice or plain spitefulness. There may even be targets of how many people each centre is meant to reach, and cuts in DWP staff are likely. A further risk is that sanctions may be imposed upon someone who is already subject to deductions – for example for a social fund loan.

 

How many people will be affected?

Impossible to say, but it is likely to be thousands. Tom McNulty, DWP Minister told Parliament last year that his Department had sanctioned 280 000 claimants up to July 2008. When this happens the person sanctioned disappears off the unemployment register, giving an impression in statistics that unemployment is falling.

 

Who makes the decision to sanction?

The initial decisions to sanction are made by officials at the DWP, usually based on information from the adviser who works on the claimant’s case.

 

What to you do if you get a sanction?

The first thing to establish is why you are being sanctioned. The DWP should issue a letter explaining their decision which will give their reasons.

 

What should you do if you are wrongly sanctioned?
 
You need to appeal in writing against the decision. Put a letter into the DWP office stating that you wish to appeal. Keep a copy and telephone them afterwards to check they have received it. In practice, DWP rules require that any letter that mentions an appeal should be treated as such.

 

How long do you have to appeal?

You must appeal within one month of the DWP letter.

 

What happens when you appeal?

Sometimes the DWP will reverse their decision on receiving your appeal letter. If they reject your appeal, then the matter will be sent to the Tribunal Service which arranges  hearings.

 

What happens next?
 
The Tribunal Service will write to you asking if you want to go ahead. You should reply in writing and the Tribunal Service will list a date and place for the Tribunal to be heard near you.

 

What will the DWP do if the case goes to the Tribunal?

The DWP draws up a bundle of documents which are sent to you via the Tribunal Service. Don’t be put off by the size of this.The DWP bundle will only give details of law which is favourable to them. However, it won’t include cases or points which are favourable to you or any facts in your favour. You have to tell the Tribunal the facts and your point of view which is important.

 

What is the Tribunal?

Following changes, social security appeal tribunals are now known as the ‘Lower Tier Tribunal’. In the past the tribunals used to have three members but increasingly they are now heard by a legally qualified Judge who sits alone.

 

What arguments can be used at the Tribunal?

There are lots of potential arguments, and in most case there will be an issue which the DWP has overlooked, known as “failing to consider a relevant fact”. In a number of cases, sanctions should not be imposed where there is good cause for the claimant doing what he/she did – in other words there are reasons or mitigating circumstances.

For example, if you are sanctioned for being late at an interview or not turning up, you may have what is called ‘good cause’ for not having done what you were told or what was expected of you. For example, in one recent case, a person was sanctioned for missing an interview when he was actually undertaking a DWP approved study course at the time. In other cases, the DWP may simply lose the information you have sent and cut off benefit.

Good cause is not defined in law, so there may be all kinds of good reasons why you should not be sanctioned which the DWP decision maker did not know about.

 

What happens at the Tribunal?

Appeals are heard before a single Judge and can be dealt with quite quickly. Tribunals concentrate on finding the facts. In a lot of cases, the DWP do not turn up for the hearing. They tend to be informal, being held sitting round a table at the Tribunal office and are thus different to courts. However, they are serious proceedings and the Judges have wide powers to correct  DWP errors.

 

Can a friend come with you?

You are entitled to have a friend or relative to come along to the Tribunal with you. They can be an adviser or representative, or support – what is known as a “McKenzie friend". They can help you take notes and present your case, and give you confidence and support.

 

What evidence should the Tribunal look at?

The Tribunal Judge will look at your appeal letter and the documents from the DWP and then ask questions. Anyone who knows about your circumstances can give evidence. A lot of evidence is given by simply answering the questions from the Judge. However, the tribunal should look at any other evidence you bring along.

 

What sort of evidence can be considered?

There is a wide range of evidence which can be considered. You can bring witnesses who can confirm what you say or talk to the Judge direct. If you are on medication, bring a doctor’s letter, hospital letters and examples of all your medicines to show the tribunal. Potentially any document, film or photo can be used as evidence.

 

What happens at the end of the hearing?

The Tribunal Judge makes a decision. Sometimes it will be given to you immediately. Sometimes it will be later and a copy is always given in writing. If you succeed in your appeal then the sanction will be cancelled and any money restored.

 

Are there further rights of appeal?

Yes, there are further rights of appeal, on points of law beyond the Tribunal, and cases eventually can reach the Courts.If you are appealing, wherever possible get legal advice or guidance from any advice or support agency. Useful books on all aspects of social security law are issued by the Child Poverty Action Group.

The Government ought to be worried about the impact of the appeals, not just on claimants but also about how DWP centres will cope if they get lots of appeals. Recently, one DWP employee stated his office would struggle with more than 6 appeals in a month. In fact it seemed to collapse with just one!