As a complaint caseworker at Z2K, I regularly come across clients who have to claim Job Seekers Allowance (JSA) whist awaiting an outcome of their Mandatory Reconsideration (MR) for Employment and Support Allowance (ESA). MR has been with us since October 2013, but the same problems are always recurrent. Although new legislation has been brought in to implement the changes, regulations and policy have not caught up to add extra safeguards for clients. Of particular concern is the failure to detect and make reasonable adjustments within clients’ JSA claimant commitments.
The following case exemplifies the difficulty faced by clients who are on JSA whilst awaiting an outcome on their ESA MR. The client was sanctioned between July and August 2015. The client had clear medical evidence, demonstrating that they had learning difficulties and a history of poor mental health. The claimant was sanctioned for not fully understanding or being able to use the DWP job match system. The client also missed an appointment as he had experienced food poisoning coupled with a migraine on that day. As a result of his learning difficulties he did not exactly understand what evidence was required and was not able to obtain evidence until several weeks later. The DWP have admitted at my Stage 2 Complaint that they had not made enquiries into the client’s medical conditions and had not made reasonable adjustments accordingly.
There are two main arears of legislation that govern claimant commitments. Under Job Seeker Regulations 2013 7 2 (b) states that the acceptance period for a claimant commitment can be extended if the claimant requests that limitations should be incorporated into the agreement.
Under Job Seeker Regulations 2013 8 a A claimant may be entitled to a jobseeker’s allowance without having accepted a claimant commitment if the Secretary of State considers the claimant cannot accept a claimant commitment because they lack capacity to do so
There are two main problems with the regulations. The first is an over reliance on the onus being on the client to report what reasonable adjustments are required. Claimants previously on ESA have often been out of the labour market for several years and would not know what adjustments they need. Unlike in work there is no Access To Work Scheme available in order to assess what reasonable requirements are needed.
The second major problem that within DWP guidance there is no way of determining capacity in order to establish whether a person should not accept their claimant commitment. The decision is based purely on the perceptions of the Employment Advisor and guidance does not state that medical professionals are consulted in order to determine capacity.
Good practice should be incorporated into DWP regulations to make it a partnership between Employment Advisor and client. There should be some onus placed on the Employment Advisor in the claims process to routinely make enquiries and to request medical paperwork to determine reasonable adjustment for the client. Particular care should be taken for those claiming whilst waiting for an ESA decision. Independent assessments from occupational health advisors should also take place to establish specific reasonable adjustments are needed.
I am planning to take these types of cases to the ombudsman. If you have had a similar experience please email me.