Andy McCarthy, Caseworker
One issue which our casework team is extremely worried about with Universal Credit replacing legacy benefits is the client’s financial dignity while they are appealing an unfair decision about their capability for work. As outlined in Z2K’s report Access Denied the road to justice for people with disabilities is a long and already distressing journey.
Under ESA (Employment and Support Allowance) rules, clients who have to appeal a negative decision can claim the appeal rate of ESA while waiting for their tribunal date. This crucial regulation means that clients do not have to fulfil Job Seeking requirements which are necessary under JSA (Jobseekers Allowance), while still getting a modest amount to live on until their ESA appeal is heard.
Of course this process itself is fraught with issues. Job Centre staff rarely know what the appeal rate of ESA is, often misadvising clients and forcing them to look for work and therefore vulnerable to sanctions. One of my clients was left destitute, homeless, and resorted to begging before being referred to us for help applying for the appeal rate of ESA. However, when properly advised hundreds of our clients have been able to receive the correct benefit levels.
Shockingly, under Universal Credit regulations, no equivalent rules apply. This means that when claimants fail a Work Capability Assessment, they are required to start actively seeking work for their standard allowance of £73.10 to continue.
Added to this, Universal Credit does not allow for extended sickness period of 13 weeks as with JSA, instead giving claimant a maximum of 14 days rest from job seeking due to disability twice a year.
We have tabled our concerns to the DWP who have responded “our work coaches use tailoring and flexibility to ensure [clients] are supported. Sanctions are a last resort and where there are easements or voluntary actions in place would not apply”. However from our experience the flexibility that individual Job Coaches allow varies greatly, so leaving it at their discretion as to whether to sanction claimants while they are waiting for appeals is deeply concerning.
Tribunals in London are taking 34 weeks to be heard, and that’s not taking into account the Mandatory Reconsideration stage. We often have clients waiting for tribunal dates for over a year since their Work Capability Assessment, in some cases closer to two years.
To expect severely disabled and vulnerable adults to manage fulfilling their Job Seeking Conditions over this time will undoubtedly mean an increase in sanctions, poverty, and emotional distress. All of which will, in contrast to the stated aims of Universal Credit, cause their health to deteriorate and make it harder, not easier, for them to return to work.
What Can Be Done?
The only sensible option is for an equivalent of appeal rate ESA is included under the Universal Credit system. This would allow disabled people to challenge unfair decisions without having to experience extreme financial hardship.
However, until this situation is changed, we would recommend clients to seek advice as to their situation:
- Clients should check if they are exempt from work related requirements: for instance if they care for a responsible for a child under the age of one, caring for a severely disabled person for at least 35 hours a week, or experienced / threatened with Domestic Violence. Please note this is not an exhaustive list.
- If the client does not fall under an exempt group, they can ask for their Claimant Commitment to be reviewed in light of their disability and the fact that they are appealing a negative decision. They should do this on their online journal as well as talking to their Work Coach. A review can be requested at any time.
- The expected hours of looking for work, as well as the type and location of work, can be reduced based on the client’s physical or mental impairment.
- If a client has been sanctioned due to not fulfilling their claimant commitment, this can be challenged. Clients should seek immediate advice if this happens to them.
At Z2K we see how vital the appeal rate of ESA is for our clients. It is crucial that disabled people are able to challenge wrong decisions without falling into poverty. At best, this change under Universal Credit is a naïve oversight in government policy; at worst it is a deliberate way to disincentive people challenging an unfair system from receiving justice.