CHAPTER 10BENEFIT SANCTIONS, HARDSHIP PAYMENTS AND APPEALS
This chapter explains the adjudication system and the different types of adjudication officer. Adjudication officers must look at your case before your benefit is refused or stopped and before a sanction can be imposed.
Changes to the adjudication system
Adjudication Officers are to be abolished and their decision-making functions will be taken over by the Secretary of State for Social Security. In practice, the functions will be carried out by officials acting on his/her behalf. There are also likely to be new appeal rules. For JSA this is likely to happen in October 1999. For up-to-date information, check with Working Brief (see page*).
There are certain circumstances in which full JSA will not be paid:
This chapter explains the circumstances in which your JSA may not be paid. It also explains the hardship provision under JSA and the reviews and appeals procedure. The chapter deals only with procedures for JSA and unemployed people. It does not explain the different review system in place for Disability Living Allowance or Attendance Allowance or the different types of tribunal for disability and medical hearings.
Before your benefit claim can be refused or terminated and before a sanction is imposed on your claim, it must be looked at by an adjudication officer. The adjudication officer has the power to "determine claims and answer any questions arising in connection with these claims under" the law. This includes such questions as(JSA LMAO, ch 3):
Adjudication officers will also give an opinion as to whether, if you only apply for National Insurance credits, your claim would have been disallowed or subject to a sanction if you were actually in receipt of JSA.
There is an important distinction between a sanction and a disallowance.
A sanction will be imposed on your claim if you break certain benefit rules. There are two categories of sanction, one category imposed for breaking certain rules results in a loss of benefit for 2 or 4 weeks; the other category results in benefit loss of up to 26 weeks. The exact length of the longer category of sanction will be decided by the adjudication officer. An adjudication officer must decide whether to impose a sanction, but during the period when they make their decision, your full benefit should continue to be paid (see table on page*).
A disallowance occurs when the adjudication officer decides that you are not eligible for JSA because you do not meet vital entitlement conditions. In these circumstances, your claim is suspended while the adjudication officer decides whether you are eligible – you will not receive benefit in the meantime. If you are found to be ineligible for JSA, your claim is terminated unless you are a member of a vulnerable category who may be entitled to hardship payments (see page* for more information about vulnerable groups).
Although the adjudication system is to change, at the moment there are four types of adjudication officer:
Under the Social Security Act 1998 all adjudication officers are to be abolished and their decision making functions are to be replaced by the Secretary of State. The Adjudication Officer’s Guidance will stop being published. In practice it is likely to be replaced by some other form of guidance. See Working Brief for updates (details on page*).
Sector adjudication officers
Sector adjudication officers are ES staff based in separate offices from local Jobcentres. They are responsible for making decisions on the following issues(JSA LMAO, ch 1, appen 1):
Refusal to sign a Jobseeker’s Agreement on principle
If the sector adjudication officer decides that you have refused to sign a Jobseeker’s Agreement on principle, you will have failed to satisfy one of the entitlement conditions of JSA and you will not receive any benefit. In order to receive JSA, you must enter into a Jobseeker’s Agreement. If you are in a vulnerable group, you may be able to get hardship payments. If you are not in a vulnerable group, you will need to make a new claim for JSA. You are entitled to ask for a review of the decision and then to appeal if the review still goes against you (see page*) For more details about what happens if you do not sign the Jobseeker’s Agreement, see Chapter 6.
Dispute over the content of your Jobseeker’s Agreement
At the start of your claim
If you or the ES adviser disagree over the contents of your Agreement at the start of your claim, the adviser will explain that you will not receive benefit until you have a signed Jobseeker’s Agreement. Your case will be referred to the adjudication officer. If you are in a vulnerable group you may be able to get hardship payments whilst the adjudication officer is making a decision.
If the adjudication officer decides against you at the start of your claim you will not be eligible for JSA. If you are considered vulnerable, you may be able to get hardship payments (see page*).
During your claim
If the disagreement follows a proposal from you or the ES to vary your Agreement during your claim, you should continue to receive your benefit providing you keep to the existing Agreement whilst the variation is disputed.
If the dispute arose during your claim because you proposed a variation in your Agreement and the adjudication officer does not allow your variation, you should be able to continue receiving benefit because you already have an Agreement in place. You will continue to receive JSA only if you continue to meet the requirements of your existing Agreement.
If, on the other hand, the dispute arose because the ES had proposed a variation in your Agreement, and the adjudication officer finds in favour of the ES, you may lose benefit if you do not comply. The adjudication officer can issue a "direction" which will state what your Agreement should contain. If you do not comply with a direction by making a new Agreement under the adjudication officer’s conditions within 21 days, your original Agreement will be terminated and you will not receive any more benefit. You may be able to get hardship payments if you are considered to be vulnerable (see page*).
For more information about disputes over the content of your Jobseeker’s Agreement see Chapter 6.
Failure to attend advisory interviews or sign on at a Jobcentre
If you receive a written notice to attend the Jobcentre either to sign on or for an interview, and you fail to attend on the right day you may lose benefit.
If you are to avoid losing benefit, the adjudication officer must accept that, within 5 working days following the day on which you should have attended or signed on, you have shown good cause for failing to attend as required. If you do not convince the adjudication officer that you had good cause, within 5 working days, your JSA claim will be terminated and you will need to make a new claim.
If you attend the Jobcentre at the wrong time, you are given a second chance. The ES must issue you with a written warning. If you attend at the wrong time again, you will be expected to show good cause in the same way as if you failed to attend. You may be able to get hardship payments (whether you are in a vulnerable category or not) whilst the adjudication officer makes a decision, although this decision is usually made immediately. If the adjudication officer decides to stop your claim for attending at the wrong time or failing to sign on or attend, you will not be able to get hardship payments even if you are in a vulnerable category(AOG, vol 6, para 40010). For more information about failing to sign on or attend an interview see Chapter 7.
Available for and/or actively seeking work
If the adjudication officer decides that you are not available for and/or actively seeking work, you no longer meet the requirements of JSA and you will need to make a new claim and show that you are now available for and actively seeking work. If you are considered vulnerable, you may be able to get hardship payments. For more information about the availability and actively seeking work rules see Chapter 4.
People who are not regarded as available for work
If the sector adjudication officer decides that you are not entitled to JSA because you are a member of a group which is specifically disallowed benefit, such as prisoners on temporary leave, full-time students or women in receipt of Maternity Allowance, you will not receive any more benefit and you will not be entitled to hardship payments whether you are in a vulnerable group or not. You may be entitled to hardship payments whilst the adjudication officer is coming to a decision. For more information about students and benefit see Chapters 18 and 19.
Voluntary unemployment, refusal of employment and dismissal for misconduct
If you leave your job, the sector adjudication officer must determine whether you did so voluntarily without good cause. If you are dismissed the adjudication officer has to decide whether this was due to misconduct. Similarly, the sector adjudication officer determines whether you refused an offer of employment or neglected to avail yourself of an employment opportunity without good cause.
In all these situations, the maximum penalty if the sector adjudication officer finds against you is a 26-week sanction. If your claim has been referred to the sector adjudication officer for one of the reasons carrying a maximum 26-week sanction, your benefit should remain in payment until a decision has been reached. If the reason for doubt carries this possible 26-week sanction, your normal entitlement to benefit stays in place whilst your case is with the sector adjudication officer.
If the sector adjudication officer then finds against you and imposes a sanction on your claim, you will be entitled to apply for hardship payments. If you are considered to be vulnerable, you will be allowed to apply for hardship straight away. If you are not in a vulnerable category, you will not be permitted to apply for hardship for the first 2 weeks of any sanction.
If the sector adjudication officer determines that you gave up, failed to attend or neglected to avail yourself of a place on a Government scheme or programme without good cause, s/he will impose a 2- or 4-week sanction. If you lose a place on a compulsory Government scheme, the sector adjudication officer decides whether you lost the place because of misconduct. If s/he sanctions you, your claim will be stopped for 2 or 4 weeks.
People in vulnerable categories may be able to get hardship payments for the whole of the sanction period. If you are not considered vulnerable, you are not allowed to apply for hardship payments in the first 2 weeks of a sanction. Your claim will not be suspended whilst the adjudication officer is deciding whether to impose a sanction. Full JSA will remain in payment until a sanction is imposed.
Failing to comply with a Jobseeker’s Direction
You will also be issued with a 2- or 4-week sanction if the sector adjudication officer decides that you refused to carry out a Jobseeker’s Direction without good cause (see Chapter 8). Whilst the adjudication officer is making a decision, your claim will not be suspended – full JSA will remain in payment. People in vulnerable categories may be able to get hardship payments for the whole of the sanction period. If you are not considered vulnerable, you are not allowed to apply for hardship payments in the first 2 weeks of a sanction.
Disallowances at the end of a job
The sector adjudication officer is also responsible for making decisions relating to your benefit entitlement when a job ends. You will not be entitled to JSA if you are still receiving payment in lieu of notice, for example. In this situation you cannot apply for hardship until your period of notice has expired. Redundancy payments will not affect your JSA entitlement unless they take you over the capital limit of £3,000. For more information about disallowances because of payments at the end of a job see Chapter 3.
The Regional Adjudication Office
The Regional Adjudication Office oversees the work of the Sector Offices and monitors efficiency, but is also responsible for some decisions affecting benefit entitlement. The Regional Office will decide any questions relating to benefit entitlement during a trade dispute. For more information on this issue see page* in Chapter 3.
Hardship payments are reduced payments of Income-based JSA awarded to some claimants whose JSA is suspended, disallowed or who have a benefit sanction imposed on them. There is no longer any automatic entitlement to hardship payments – you will need to go through an application process. Under JSA, entitlement to hardship payments is much more restrictive than under the previous system. Payments are available to you only in certain circumstances and you will have to demonstrate that you or a "specified member of your family would suffer hardship if a JSA hardship award is not in place". If you are accepted by the JSA hardship officer as being in a vulnerable group, you can receive hardship payments as soon as your benefit stops. All other claimants may need to wait for 2 weeks before payments can be made.
Information leaflets about JSA hardship provision will not be displayed in the Jobcentre. You should be issued with a leaflet about hardship payments if your claim for JSA is rejected or there is some doubt about your entitlement when you make a new claim or during an existing claim. If you have not been issued with a leaflet (JSA9), ask for one from the Jobcentre or BA office and ask for a hardship application form (JSA10).
Your entitlement to hardship payments will be decided by a specially trained JSA hardship officer. You will need to attend an interview with this hardship officer who is usually based at the BA. The leaflet about hardship payments tells you to take your completed application form to the interview along with any evidence about your circumstances including:
The leaflet says that if the hardship officer has to ask for more information, hardship payments may be delayed.
Staff at the Jobcentre can make the hardship interview appointment for you. Although BA staff are told that they should "never give [you] any opinion or raise false hopes about whether or not [you] will receive a JSA hardship award", they are also told that "any jobseeker can apply for a JSA hardship award at any time" and that they should "never try to talk [you] out of applying for a JSA hardship payment"(JSA HG, para 2003).
You can apply for hardship payments only in certain situations. The decision about whether you qualify for payments will also depend on whether you are considered to be in a vulnerable group and on whether the JSA hardship officer determines that you or a member of your family would suffer hardship if you were not awarded the payments. If the hardship officer decides that you are not eligible for hardship payments, your best course of action will depend on your circumstances. In some cases, you will be able to make a new claim. If you are sanctioned, and you are not eligible for hardship payments, the Government has said that you "will also not have access to the Social Fund for living expenses" (HMSO 1994, para 4.40). It is important to remember that you can appeal any decision made by an adjudication officer, including the decision to refuse you hardship payments (see page *).
You are more likely to receive hardship payments if you are a member of a vulnerable group. You will also be able to receive payments immediately which other claimants cannot do. There is a list of vulnerable categories and the hardship officer will determine whether you belong to one of these groups. You are considered to be in more need of resources following a loss of benefit if you or your partner is(AOG, vol 6, para 40057):
providing that person would suffer hardship if JSA is not paid
People with a long-term medical condition
If you are claiming hardship payments on the basis that you or your partner has a long-term medical condition, the hardship officer will need to determine the answers to a number of questions.
The medical condition must restrict you or your partner’s "functional capacity to carry out ordinary activities because of physical impairment". Adjudication officers are told that "physical impairment is not defined in the regulations. A person is physically impaired if they have any loss or abnormality in the function or anatomical structure of limbs, organs, tissues or any other structures of the body excluding the systems of mental function"(AOG, vol 6, para 40071). The test of whether the medical condition restricts or limits functional capacity is whether there is a "partial or complete inability to perform an activity in the manner or within the range considered normal for a human being" (AOG, vol 6, para 40072).
The adjudication officer should consider "all available evidence when deciding if [you or your partner has] a long-term medical condition". This includes(AOG, vol 6, para 40074):
Adjudication officers are told that some of these sources of evidence may not be available but that decisions should be based on the evidence that is available. It is a good idea to ensure that you give the hardship officer reports from doctors and other medical specialists who have treated your or your partner’s condition when you attend the hardship interview. Adjudication officers are clearly told to bear in mind that, "[your] direct evidence should be accepted unless it is improbable or self contradictory"(AOG, vol 6, para 40075).
If you or your partner is suffering from a mental condition, you will only qualify as a member of this vulnerable group "if the condition causes limitation in functional capacity because of a physical impairment". They are told that they "should seek the expert opinion of a BA Medical Services doctor if it is not clear if there is physical impairment as well as a mental condition. In cases of doubt the BA Medical Services doctor should be asked for an opinion on the likelihood of the particular physical problem occurring because of the mental condition"(AOG, vol 6, para 40096). The BA doctors "will not be able to give specific advice for individual people. They will only be able to give general advice on the likely effects of certain conditions" (AOG, vol 6, para 40084).
You may be treated as vulnerable if you or your partner cares for a sick or disabled person in receipt of Attendance Allowance or the high or middle rate of the Disability Living Allowance care component.
You will be a member of this vulnerable group if you or your partner provides care for this person for a "considerable portion" of the week and would be unable to continue providing care if JSA was not paid.
If the disabled person has claimed Attendance Allowance or Disability Living Allowance, but has not heard yet whether s/he has been awarded the benefit, the carer can only qualify as a member of the vulnerable group until either a decision has been made on the claim or for a period of 26 weeks since the claim was made, whichever is the earlier.
If the disabled person has been awarded Attendance Allowance or Disability Living Allowance but has not been in need of care long enough to start receiving payments (3 months for Disability Living Allowance and 6 months for Attendance Allowance), the carer will qualify as a member of the vulnerable group.
Adjudication officers are told that "the term ‘considerable portion’ is not defined in the regulations" and that "it should therefore be given its normal everyday meaning of a large or significant part"(AOG, vol 6, para 40110). In addition, they are told that if you spend at least 35 hours a week caring for the disabled person, you should be treated as satisfying the conditions of entitlement to Income Support and that you should not therefore be treated as in hardship. Adjudication officers should treat people who provide care for a person that "approaches 35 hours a week as members of a vulnerable group unless it is clear that Income Support will be awarded" (AOG, vol 6, para 40119).
When hardship payments cannot be paid
There are certain circumstances in which adjudication officers are told that hardship payments cannot be paid even if you are considered to be in a vulnerable group. Hardship payments can be paid if you are not entitled to Income-based JSA because of doubts about your availability or actively seeking status or because you have not made a Jobseeker’s Agreement. Hardship payments will not be paid if you are not entitled to JSA for any other reason. If you are sanctioned for one of the reasons on page*, you retain your entitlement to JSA and so can claim hardship payments. If you are receiving Contribution-based JSA, you will be allowed to apply for a JSA hardship award but you will also need to be eligible for Income-based JSA. BA staff are told that the information needed for the Income-based JSA assessment would usually have been obtained at the New Jobseeker interview. In this case, the hardship officer will confirm that the details are correct during the interview and assess your entitlement to Income-based JSA. If s/he does not already have the details needed to make an assessment, you will be asked to complete a JSA review form (JSA3).
You will not be entitled to hardship payments if you or your partner is entitled to Income Support. If, for example your claim for JSA is stopped during a delay, a suspension, a sanction or a disallowance and your partner is eligible for Income Support because s/he is incapable of work, s/he would be advised to claim Income Support for him/herself with any premiums and a dependant’s allowance for you.
When hardship payments can be made
People who are in vulnerable groups may be entitled to hardship payments in situations in which others will not. It is important to remember that you are treated as vulnerable only if you, your partner or the specified person for that group, would suffer hardship without payments of JSA. If you are not in a vulnerable group, again you must show that you or a member of your family would suffer hardship if JSA was not paid (see page* for more information about what is meant by hardship).
Awaiting a decision at the start of a claim
If you are in a vulnerable group(see page *), you will be entitled to claim hardship payments if you are awaiting a decision at the start of a claim for JSA providing there is a delay in deciding the claim and the reason for the delay is that the ES or the adjudication officer questions whether you are available for and/or actively seeking work or there is a dispute over your Jobseeker’s Agreement. In this situation, you will be awarded payments from the later of (AOG, vol 6, para 40274):
Adjudication officers are told that they can award hardship payments for the period between the date calculated above and the date on which you make your hardship application providing they are "satisfied that [you] suffered hardship because of a lack of resources in that period"(AOG, vol 6, para 40275).
When there is a delay in deciding the claim in these circumstances, your entitlement to hardship payments ends on the day before the adjudication officer decides the claim.(AOG, vol 6, para 40285).
If you are not in a vulnerable group(see page *) you may still be able to qualify for hardship payments while you wait for a decision by the adjudication officer on your availability for work, your actively seeking status or a dispute about your Jobseeker’s Agreement. You will have to show that you or a member of your family would otherwise suffer hardship. In this case you will need to wait for whichever is the later of (AOG, vol 6, para 40293):
Adjudication officers are told that your entitlement to hardship payments will end on the day before the date when the JSA claim is decided. They are told to bear in mind that this date may not necessarily be the same date as the decision on availability, actively seeking or the Jobseeker’s Agreement.
Suspended claim over availability, actively seeking or a Jobseeker’s Agreement
If you already have an existing claim for JSA and some question about your eligibility arises, for example at an advisory interview or when you sign on, your claim may be suspended while an adjudication officer makes a decision.
If you are in a vulnerable group, you will be entitled to hardship payments when your claim is suspended so long as the adjudication officer is deciding whether you(AOG, vol 6, para 40261):
Remember that to qualify as a member of a vulnerable group, you, your partner or the specified person must be likely to suffer hardship if JSA is not paid. To be entitled to hardship payments during a suspension in these circumstances, you must meet all other conditions of entitlement to JSA. The guidance to adjudication officers states that "the Secretary of State will not normally suspend JSA payments if there is a doubt about a Jobseeker’s Agreement during a claim"(AOG, vol 6, para 40262). For more information about disputes over your Jobseeker’s Agreement, see Chapter 6.
If you are not a member of a vulnerable group and you already have an existing claim for JSA and it is suspended pending a decision from an adjudication officer over your availability, actively seeking or over your Jobseeker’s Agreement, you may be entitled to hardship payments. You will need to convince the hardship officer that you or a member of your family will suffer hardship if you do not receive JSA. You will also have to meet all the other conditions of JSA entitlement.
In this case your payments can only start from the 15th day of the suspension. You will not receive any money for the first 2 weeks of the suspension period.
People who have been sanctioned
There are two categories of sanction. You will either be sanctioned for 2 or 4 weeks or for a period of between 1 and 26 weeks to be decided by an adjudication officer. The type of sanction depends on what the question over your claim is.
You will be sanctioned for 2 weeks if an adjudication officer determines that you have, without good cause:
If you have already been sanctioned for one of these reasons in the last 12 months, your sanction this time will last for 4 weeks. For more information about the Jobseeker’s Direction and places on schemes see Chapter 8.
You will be sanctioned for between 1 and 26 weeks if an adjudication officer determines that you have, without good cause:
The adjudication officer will take a number of issues into account when determining how long your sanction will be. For more information about the length of these sanctions see Chapter 6. If you are sanctioned in this way, it is probably a good idea to try and get the length of the sanction reduced by taking your case through the appeals system (see page*).
If you are a member of a vulnerable group and an adjudication officer has decided to impose a sanction on your claim, you will be entitled to hardship payments. Unlike an adjudication officer’s decision that you are not available for and/or actively seeking work or that you do not have a satisfactory Jobseeker’s Agreement, the decision to sanction you does not mean that you are no longer entitled to JSA. You maintain underlying entitlement to JSA throughout the sanction but you will not receive benefit during that period unless you are eligible for hardship payments.
You must show that you, your partner or the specified person is likely to suffer hardship if JSA is not in payment. To be entitled to hardship payments during a sanction, you must also meet all the conditions of entitlement for JSA.
If you have been sanctioned, for whatever length of time, your entitlement to hardship payments begins on the later of(AOG, vol 6, para 40274):
Payments made because of a sanction come to an end at the end of the period of sanction. You will receive full rate JSA from the day after the end of the sanction(AOG, vol 6, para 40283).
If you are not a member of a vulnerable group you will qualify for hardship payments during a sanction if you can demonstrate that you or your family will suffer hardship without payments of JSA, but you will not be paid until the 15th day of any sanction. This means that for a 2-week sanction, you will not be entitled to any payments.
You will still need to show that you or a member of your family would suffer hardship if JSA were not paid and you will need to meet all the other conditions of JSA entitlement.
Your entitlement to hardship payments will end when the period of the sanction ends.
People who are not available and/or actively seeking or who do not have a Jobseeker’s Agreement
You will no longer be eligible for JSA if the adjudication officer determines that you:
If you are in a vulnerable group and the hardship officer accepts that you, your partner or the specified person will suffer hardship if JSA is not in payment, you will be entitled to hardship payments. To be entitled to hardship payments in these circumstances, you must satisfy all other conditions of entitlement to Income-based JSA(AOG, vol 6, paras 40254, 40257 & 40260).
If you are not in a vulnerable groupand your claim is disallowed because you are not available for and/or actively seeking work or you have not made a Jobseeker’s Agreement, you will no longer be eligible for JSA and you will not be entitled to any hardship payments. BA staff are told that "if appropriate, [you] must make a new claim" (JSA HG, para 2032).
Summary of hardship eligibility
Adjudication officers are given the table below to assist them in deciding whether your circumstances could entitle you to hardship payments(AOG, vol 6, part 40, appen 5).
Question over claim
Adjudication officer’s decision pending
Availability for work
Hardship payments, but only from 15th/18th day (dependent on 3 waiting days at start of claim)
No JSA entitlement
Actively seeking work
Hardship payments, but only from 15th/18th day (see above)
No JSA entitlement
Is the Jobseeker’s Agreement satisfactory?
Hardship payments, but only from 15th/18th day (see above)
No JSA entitlement
Sanctions – including 2-or 4-week and 1–26 week sanctions
Full rate JSA
Full rate JSA
Hardship payments only during sanction
Hardship payments only from 15th day of sanction – none during a 2- week sanction
What is meant by "hardship"?
There is no definition of "hardship" in JSA regulations. Adjudication officers are told that "it should therefore be given its normal everyday meaning of ‘severe suffering or privation’". They are also told that "privation means a lack of the necessities of life"(AOG, vol 6, para 40155). Guidance says that "adjudication officers should consider all the circumstances of the claimant or family" when they decide if hardship will occur. They must consider:
Although adjudication officers are told that these circumstances must be considered, guidance emphasises that they are not the only circumstances which might lead to hardship(AOG, vol 6, para 40160).
The term "resources" is also not defined in the JSA regulations. Adjudication officers will give it its normal everyday meaning of "the means available or a stock or supply that can be drawn upon"(AOG, vol 6, para 40175).
The adjudication officer will take into account resources available to your family if JSA is not paid and they will also look at any resources that may be available from someone who is a member of your household but not a member of your family. They will look at income, capital and any other money. If you are earning a small amount of money on top of your benefit by using the earnings disregards, the adjudication officer will consider this money when looking at your available resources. It will be disregarded, however, when determining the amount of the hardship payment(AOG, vol 6, para 40181).
The adjudication officer must consider whether any resources are available immediately. If you have to give a period of notice before cashing in savings, or selling assets, the adjudication officer can decide that you will be in hardship while you wait. Examples of savings and assets you will be expected to sell or cash in are(AOG, vol 6, para 40190):
The adjudication officer should consider periods of notice set out by the investment company and any delays that may occur between the sale and the receipt of money.
You may have savings which carry a penalty for early withdrawal. The adjudication officer will still consider these resources when they are deciding if hardship will occur. You will be expected to cash in the savings and live on them despite the penalty.
If on the other hand you have a fixed period investment, you will not be expected to cash it in early. "If [you] state that a fixed period investment is held the adjudication officer should be satisfied that it can not be cashed in early"(AOG, vol 6, para 40193).
If your resources leave you with more money each week than the amount of Income-based JSA you would have received, an adjudication officer is unlikely to award hardship payments.
The adjudication officer must consider whether there is a "major risk" that, without JSA, your family will not have essential items or will only have essential items at considerably reduced levels. Essential items the adjudication officer will look at are(AOG, vol 6, para 40211):
They are also told that these are not the only essential items which can be considered and that "an item that is not essential for one individual may be essential for another".
People who are in vulnerable groups will be considered more likely to suffer hardship. Adjudication officers are told, however, that healthy people who may be at less risk of suffering hardship if they go without essential items for short periods, "are more likely to suffer hardship if essential items are not available for long periods"(AOG, vol 6, para 40216).
Your individual circumstances should be looked at. If you are healthy, for example, you are more likely to get hardship payments in the winter because you would have to go without heat than to get them in the summer.
How much do you get?
If you are entitled to hardship payments and the hardship officer accepts that you or a member of your family would suffer hardship without JSA, you will receive the amount of Income-based JSA you would ordinarily get (your personal allowance), reduced by either 20% or 40%.
The amount will be reduced by 20% if you or a member of your family is pregnant or seriously ill. The adjudication officer can ask you to provide further evidence of a pregnancy if s/he has any doubts. This evidence could be a certificate of the expected date of confinement(AOG, vol 6, para 40330).
The term "seriously ill" is not defined in the regulations. Adjudication officers should give it its normal everyday meaning of an "important, significant or severe illness"(AOG, vol 6, para 40314). Adjudication officers are told that "illnesses such as colds or coughs are not normally serious", but that they "should decide if an illness is serious for the person concerned".
If neither you nor a member of your family is pregnant or seriously ill, your JSA personal allowance will be reduced by 40%. The amount of the reduction should be rounded to the nearest 5p. If the reduction is an exact multiple of 2.5p, the reduction will be rounded down.
Housing Benefit, Mortgage Interest Relief, sanctions and hardship payments
The Government has said that JSA "sanctions will have no effect on Housing Benefit", and that even if you do not receive hardship payments during the sanction period, your Housing Benefit will continue to be paid. However, the situation is different if you are a homeowner and receiving mortgage interest payments as part of your JSA. In these circumstances you will continue to receive these payments during the sanction period only if you have qualified for JSA hardship payments(Hansard WA, col 326, 1/7/96).
Postal claimants and hardship payments
If you usually sign on by post, you may be able to claim hardship payments by post. BA staff are told that if they receive a request for a JSA hardship award through the post they should "consider sending them a JSA hardship application form JSA10 by post, with a letter giving a contact name and phone number for queries"(JSA HG, para 3120). When you return the application form by post the JSA hardship officer will decide whether you qualify for payments.
If you are awarded payments, you may be required to sign on in person instead of continuing to sign by post. This will depend on why you claimed hardship payments.
If your claim was suspended or sanctioned or awaiting a decision, you can continue to sign by post.
If, however, your claim has been stopped because the adjudication officer does not accept that you are available for and/or actively seeking work or because you have not made a Jobseeker’s Agreement, you may be required to sign on in person. In these circumstances you will be entitled to hardship payments only if you are considered to be a member of a vulnerable group. If the length of time for which you are not eligible for JSA is for 2 weeks or less, you will be able to continue claiming by post, but if the disallowance lasts for longer than 2 weeks you will be expected to attend the Jobcentre every 2 weeks for a Jobsearch Review interview. You will be able to claim back your fares to attend these interviews(JSA HG, para 3133). For more information about postal signing, see Chapter 7.
The Back to Work Bonus and hardship payments
The Back to Work Bonus allows people who declare earnings from part-time work to accrue half of any money earned above your earnings disregard and clawed back by the benefit system to be credited to an individual fund. If you go into full-time employment, you can collect the money accrued as a bonus.
If you receive a hardship award because your claim has been sanctioned, your time spent on hardship will count towards the qualifying period for the Back to Work Bonus (see page* for reasons why your claim may be sanctioned). You will also be able to accrue a bonus whilst you receive hardship payments because of a sanction.
If, however, you are receiving hardship payments for any reason other than a sanction, you will not be able use the period of the hardship award towards the Back to Work Bonus qualifying period or accrue a bonus from any earnings(JSA HG, para 1090). For more information about the Back to Work Bonus see Chapter 9.
Benefit fraud, prosecution and the ES
The ES has a legal responsibility to ensure that only those people who are eligible for benefit receive it. If during any interview an ES officer has reason to believe that a person is claiming fraudulently, s/he will complete the interview and then refer the case to a local fraud investigator.
The most common form of investigation involves working and signing by a claimant who does not declare work, or undeclared work which is undertaken by the spouse/partner of a claimant.
The basis of the prosecution policy in the ES is drawn from guidelines which were issued by the Attorney General in 1983. The ES has adopted the same general policy as the DSS in that prosecutions are usually authorised in cases where the amount of overpaid benefit is £250 or more. However, both the ES and the DSS retain the right to prosecute an individual when smaller amounts are involved if the circumstances warrant it, e.g. when a person has defrauded the system for a second time.
A number of changes have resulted from the Fraud Act 1997:
Appeals and reviews
This section will help you decide what to do if you disagree with an adjudication officer’s decision on your claim. It concentrates on the procedures for claimants of JSA. The procedures for other benefits may be slightly different and if you appeal your case will be held at a different type of hearing. For more information about review and appeals procedures for all benefits, you can ask for leaflet NI260 entitled A guide to Reviews and Appeals from your local BA office or Jobcentre.
Changes to the appeals system
The Social Security Administration Act 1998 has changed the appeals system but will not be implemented until October 1999. This section first sets out details of the system up to October 1999. It then outlines changes that are to be introduced under the Act. Working Brief (see page*) will give details of further developments and the implementation of changes to the appeals system.
The system until October 1999
Your rights of appeal
You can appeal or ask for a review of an adjudication officer’s decision. If you choose not to ask for a review, or if you are unhappy with the results, your case for JSA can be heard at an Independent Social Security Appeals Tribunal.
Decisions about the discretionary Social Fund are not made by an adjudication officer so you will not be able to take a case about refusal of, for example, a Budgeting Loan to an appeal. Instead, you can ask the social fund officer at your local BA office to review your case. You may be asked to attend the review in person and it is a good idea to take a representative along with you (see page*).
If you disagree with a decision made by the local authority about your entitlement to Housing Benefit or Council Tax Benefit, you will not be able to take your case to a Social Security Appeals Tribunal. Local authorities have their own system of reviews and you can attend a Review Board Hearing which is made up of local authority councillors. Some local authorities have made claimants wait for months to attend a hearing. The hearing should take place within 6 weeks of the request reaching the local authority or, if that is not reasonably practicable, as soon as possible after that.
If you disagree with the decision made by the adjudication officer, or would like a decision changed because your circumstances have altered, you can ask for a review of the decision in certain circumstances. You can request a review at any time but it is a good idea to notify the Jobcentre as soon as possible because it is more difficult to backdate a claim. If you would like to request a review, you should write to the Jobcentre which is dealing with your case, saying what you think is wrong with the case. A request for a review will be handled by a different adjudication officer(JSA LOA, ch 14, para 22).
The decision can be reviewed by a sector adjudication officer if the original decision was(JSA LOA, ch 14, para 23):
The reviewing adjudication officer can:
For certain disability benefits, the review and appeal system is different. For example, you cannot take a claim for Disability Living Allowance to appeal without going through the review process first. However, with JSA, you can go straight to appeal if you do not want to request a review, or you can go to appeal if you are not satisfied with the results of a review. You have 3 months from the date the reviewed decision was notified to you in writing to request an appeal(JSA LOA, ch 14, para 25).
If you wish to appeal, you must complete the form at the back of leaflet NI246 called How to Appeal. The leaflet is available in Jobcentres and BA offices. Your appeal must(AOG, vol 1, para 05040):
Adjudication officers are told that if you submit an appeal in writing with all these details, but not on the approved form the chairperson of the tribunal may still treat the appeal as properly made.
Adjudication officers are told that the chairperson of the tribunal may extend the period of 3 months providing(AOG, vol 1, para 05050):
It will be accepted as in the interests of justice only if:
This decision will be taken by the chairperson of the tribunal with the Independent Tribunal Service. You cannot go ahead with an appeal if the chairperson will not accept it. You can only ask the chairperson to reconsider her/his decision.
If you were ignorant of or misunderstood the law or the time limits, this will not be considered when deciding whether you can appeal in these circumstances.
Before the hearing
When your appeal is received by the local office, a copy will be sent to the tribunal clerk with the Independent Tribunal Service. The tribunal clerk will send you a letter acknowledging your appeal and giving you information about what will happen.
You will also receive a form asking you whether you want an oral hearing of your case which you attend in person or whether you will allow the tribunal to decide your case with just the appeal papers.
Although it may feel intimidating to attend a tribunal, you should consider doing so since you will have a much greater chance of success if you are present to put your case. Jobcentre staff are told that "although Social Security Appeal Tribunals are part of the judicial system and their decisions are legally binding, the hearings are designed to be as relaxed and informal as the circumstances of the case allow"(JSA LOA, ch 14, para 7). You will be given 14 days in which to decide and return the form. If you do not reply your case will be held on the basis of the papers only.
The tribunal clerk will gather all papers relevant to your case and you will receive a copy. If you wish to submit evidence before the hearing you can do so. If this evidence arrives less than 5 days before the hearing date, the tribunal may be postponed. You will be sent a date for the hearing and details of when and where to attend. You should be given at least 7 days notice to attend(AOG, vol 1, para 05286).
Your Jobcentre or BA office should send you a list of local advice and representation agencies which may be able to assist you with your case and represent you at the hearing. You should also seriously consider seeking assistance and representation from a welfare rights organisation or Citizens Advice Bureau. The representative should help you to prepare your case and gather further evidence. S/he will also come with you to the tribunal and speak on your behalf. People who do have representatives have a much greater chance of success at tribunal.
Withdrawing your appeal
If you decide at any time that you no longer wish to go to appeal, you should send a withdrawal letter to the Independent Tribunal Service. You do not need to give any reasons why you wish to withdraw. You do not need to get the consent of an adjudication officer to withdraw, but if an adjudication officer or the Secretary of State has told the clerk that the appeal should not be withdrawn or if another person involved with your case objects, the appeal will go ahead(AOG, vol 1, para 05098).
If you want to withdraw once the hearing has begun, the chairperson of the tribunal must give her/his consent(AOG, vol 1, para 05100).
Your travelling expenses to and from the hearing will be reimbursed. You may also be able to get:
If you choose to have a paper hearing which you do not attend, you will be given the opportunity to send your comments on the appeal documents to the tribunal clerk.
At the hearing
The Social Security Appeals Tribunal consists of a chairperson and two members. The chairperson must be a barrister, solicitor or advocate with at least 5 years experience. Most chairpersons work part-time on tribunals and are paid a fee for each hearing they attend. The two other members of the tribunal will be drawn from the local community and are required to have knowledge and experience of the area and be representative of the people living and working in the neighbourhood. Where practicable, at least one member of the tribunal should be the same sex as you(AOG, vol 1, para 05288).
The chairperson is responsible for the conduct of the hearing and must ensure that the hearing is(JSA LOA, ch 14, para 5):
The chairperson will also take a record of the evidence presented at the hearing.
There will be a presenting officer attending the tribunal to represent the Secretary of State. The presenting officer will be a sector adjudication officer, but not usually the person who made the original decision. The role of the adjudication officer at the hearing is not that of an advocate. Adjudication officers are told that they "should not put questions to any claimant or witness in a hostile manner". They are also told that they should not think in terms of "winning" the case as "the objective should be to assist the tribunal to assess facts, relevant law and case law relating to the case"(AOG, vol 1, para 05328). Guidance clarifies the role by saying that adjudication officers should highlight the questions to be decided and that they should be clear in the presentation, evidence, argument and advice to the tribunal.
All tribunal hearings are public and anyone can come in and listen to your case unless(AOG, vol 1, para 05293):
It is unlikely that members of the public will want to attend your hearing, but the public nature of hearings does mean that you could attend a tribunal before your own hearing to see what happens.
Once the tribunal has heard all the oral evidence, its members will consider their decision in private. You, your representative and the adjudication officer will be asked to leave(AOG, vol 1, para 05300).
The tribunal will try to reach a unanimous decision. The chairperson will accept a majority decision if unanimous agreement is not possible.
You will usually be told the decision of the tribunal on the day. You should also be given a hand-written "summary decision" which should give you enough detail to understand the basis for it. If you wish to request a copy of the full findings of the tribunal you will have 21 days from the date you were given or were sent the summary decision to make your request. You can make the request at the end of the hearing. If your appeal was successful, you can take your summary decision to the Jobcentre or BA office and the decision should be implemented immediately. In practice this may not happen because the adjudication officer may wait for a copy of the full findings before deciding whether to appeal further to the Social Security Commissioners.
If you disagree with the decision of the tribunal, you can appeal further to the Social Security Commissioners but only in certain circumstances (see below). You can also ask for the decision to be "set aside" if you feel that the tribunal did not operate correct procedure. If the decision is set aside, the case will be heard again at a later date. You could also ask the chairperson to set aside the decision if(AOG, vol 1, para 05406):
To ask for the decision to be set aside, you should write to the chairperson at the Independent Tribunal Service within 3 months of being notified of the decision, stating your grounds. The BA leaflet states that this period can be extended if special reasons are shown(BA RA, page 30). There is no right of appeal if the chairperson refuses your request for the decision to be set aside.
Appeals to the Social Security Commissioner
If you are not satisfied with the decision of the tribunal, you may be able to appeal to a Social Security Commissioner. The adjudication officer may also appeal to the Commissioner if s/he disagrees with the decision of the tribunal. A case can go to the Commissioners only on a point of law. Social Security Commissioners are lawyers who are independent of the BA, the ES and the tribunal service. When you are deciding whether you have grounds to appeal on a point of law you should look at whether the tribunal(BA RA, page 6):
You must apply in writing to the tribunal chairperson at the Independent Tribunal Service within 3 months of the date on which a copy of the record of the decision was posted to you. If the chairperson refuses leave to appeal, you have 42 days from the date when you were notified of the chairperson’s decision in which to apply directly to a Commissioner. The Commissioner may accept the application after that date if there are special reasons(AOG, vol 1, para 07026). If you didn’t appeal to the Chairperson of the tribunal within 3 months you can apply directly to the Commissioners who can allow your application, again if you have special reasons.
If you appeal to the Social Security Commissioners you may not be required to attend a hearing, but if you request an oral hearing or if the Commissioner decides to hold one, it may be a good idea to have a legal representative attend with you.
If you disagree with the decision of the Commissioners, you can take your case to the Court of Appeal or, in Scotland, the Court of Session. You can only appeal at this level on a point of law. You should seek help from a solicitor.
You appeal by applying to the Commissioner who decided your case within 3 months of the date when you received the written decision(AOG, vol 1, para 07066).
You may also be able to take a case to judicial review in limited circumstances. A judicial review differs from an appeal. "An appeal considers a case with the aim of substituting a correct decision for a wrong one. A judicial review considers a case to find out if a fault in the decision under review is an error of law. If a fault is found the Court will quash the decision"(AOG, vol 1, para 07075). A judicial review will not be possible if you already have an independent right of appeal to the Court of Appeal.
Commissioner’s decisions and case law
If the Commissioner’s decision sets precedents establishing new principles, it will be reported and published by the Stationery Office. Commissioner’s decisions can be used to back up further appeals as they form "case law". The Chief Commissioner and Central Adjudication Services will decide together whether a decision should be reported. The decision will be given a reference code starting with an "R", because it has been reported, followed by letters in brackets representing the type of benefit followed by a serial number and the last two digits of the year in which the decision was selected for reporting(JSA APG, ch 2, para 29) e.g. R(IS)9/92. Decisions which are not reported are prefixed with the letter "C". Unreported decisions are available from the Office of the Social Security Commissioners. For England and Wales, the address to contact is Harp House, 83 Farringdon Street, London EC4A 4DH, tel: 0171 353 5145 and for Scotland, 23 Melville Street, Edinburgh EH3 7PW, tel: 0131 225 2201. You may find that the adjudication officer uses a decision to back up his/her argument about your case in your appeal papers when you attend an appeals tribunal. You can ask to see decisions at your local BA office or your local library may have copies.
If you have access to the Internet you can read some Commissioner’s Decisions at www.hywels.demon.co.uk/commrs/
Changes to the appeals system during 1999
The Social Security Act 1998 introduced major changes to the decision-making process in the social security system. Amongst the provisions were:
The changes to the appeal process under the Social Security Act 1998 are set out in the Social Security and Child Support (Decisions and Appeals) Regulations 1999. These are being phased in from July 1999. Decisions will continue to be made by adjudication officers and social fund officers until then.
Under the Social Security Act 1998 a decision can be changed by appealing against it or by asking it to be revised. Asking for a decision to be revised will be similar to asking for it to be reviewed under the existing rules. If you ask for a decision to be revised you will still be able to appeal against it. You have 1 month to ask for the decision to be revised or to appeal against it.
You can ask for the Secretary of State’s decision to be revised within 1 month of the date of the decision being sent to you. It is also possible for the Secretary of State to revise his/her decision without a request from you. The Secretary of State has the power to revise his/her decision at any time in those cases where there is no right of appeal(SSCS Regs, reg 8). You can therefore ask the Secretary of State to consider revising a decision if you have no right of appeal.
A decision can also be revised at any time if it arose from an official error by the Department or it was based on a mistake about any material fact or it was a decision imposing a sanction on your JSA.
If you do not ask for a revision of a decision within a month then you can ask for a late revision. You have up to 13 months to ask for the revision. In this case, the Secretary of State has to accept that it is reasonable to grant your application to have the decision revised and that your application "has merit" and that there are "special circumstances"(SSCS Regs, reg 4).
Appeals against revisions
If a decision is not revised in your favour then, in most cases, you can appeal to a tribunal. You should appeal against the decision made by the Secretary of State within 1 month of the revised decision being made.(SSCS Regs, reg 30(4)).
Your appeal must be in writing and made within 1 month of the date on which the Secretary of State’s decision was made (not the date on which you received it) (SS CS Regs, reg 28). It is important for you to include reasons and arguments when you appeal. It is also important to set out all the reasons for your appeal because the tribunal does not have to consider anything that is not drawn to its attention (SS Act 98, s12(8)(a)). In practice some tribunals may consider facts not drawn to their attention, but you should not rely upon them to do so.
It is possible in very limited circumstances to appeal outside of this time limit, but the late appeal must be within 13 months of the decision being made. You will have to satisfy the chairperson that your appeal has a "reasonable prospect of being successful and that it is in the interests of justice to grant your request or there are special circumstances why you haven’t appealed"(SSCS Regs, reg 32(4)). "The interests of justice" are narrowly defined within the regulations as being where a member of your family has died or has a serious illness or where there is a disruption to the postal service.
The appeal tribunal is independent of the Department and can change the Department’s decisions. The appeal tribunal will have one, two or three members, but one of them has to be legally qualified(SS Act 98 s.7(2)). It is likely that labour market condition appeals will be heard by two-member tribunals, but most appeals will be heard by one-member tribunals (Hansard HL Debates, col 1144, 15/1/98). Appeals against the All Work Test under Incapacity Benefit and Severe Disablement Allowance will be heard by two-member tribunals, one of the members being medically qualified.
Further appeal to the Social Security Commissioners
It will still be possible to appeal to the Social Security Commissioners against the decisions of an appeal tribunal. The application for leave to appeal must be made within 1 month of the decision being sent to you. It is probable that you will still have to show that you have a point of law to appeal against.
Supersession of decisions
A decision can be changed in another way. It can be superseded by the Secretary of State if s/he thinks that there has been a relevant change of circumstances since the decision was made, or that there will be such a change. It can also be superseded where a decision was made in ignorance of a material fact or based upon a mistake or if it is erroneous in law(SSCS Regs, reg 6). This is the equivalent of setting aside decisions under the present regulations.