Universal Credit and conditionality
Carlos Hagi considers some important issues around conditionality for those subject to the all work related requirements.
This article was originally published in the April 2018 issue of Adviser magazine and was correct at the date of publishing. It was updated on 30 January , 21 February ,6 September 2023 ,4 March and 22 April 2024.
With the full roll out of universal credit (UC) completed advisers may be confronted with the conditionality rules in UC for the first time. In addition claimants of tax credits only won’t have been subject to any conditionality but may well be when migrated to UC under managed migration. As UC rolls up legacy benefits into one entitlement, some of the conditionality rules will be familiar from the legacy system.
However UC sometimes uses different language from the conditionality requirements in legacy benefits and the conditionality requirements in UC may be much wider than the equivalent in legacy benefits, for both claimants and partners.
Under section 13 of the Welfare Reform Act (WRA) 2012 there are four work related requirements; work focused interviews, work preparation, work search and work availability. There are four work related groups into which a claimant may be placed, depending on their individual circumstances;
- no work related requirements
- work focused interview requirement only
- work focused interview and work preparation requirement
- all work related requirements
If a claimant fits into more than one work related group, the one with the least conditionality will apply. The work related requirements that will be expected of a claimant, together with any specific action agreed to meet those, will be recorded in a claimant commitment. If a claimant would have few or no work related requirements it may be possible to accept a claimant commitment through the online claim. Otherwise, attendance at an interview with a work coach will be required, where the commitment should be ‘tailored’ to the circumstances of the claimant and any requirements must be ‘reasonable and achievable’.¹
Acceptance of a claimant commitment is a basic condition of entitlement to UC² and as UC is a joint claim for couples both members of the couple will need to accept one. There are limited circumstances in which a claimant commitment may not be required e.g. if the claimant lacks capacity to agree one (which would normally include if they have an appointee), is terminally ill or there are other ‘exceptional circumstances’.³ If a claimant’s circumstances may change they may move into a different work related group, in which case the claimant commitment should be updated to reflect this. Also a change in circumstances of a partner or another member of the ‘benefit unit’ may affect the conditionality requirements of a claimant.
A claimant commitment is also required for claims to new style Jobseeker’s Allowance (JSA) and new style Employment and Support Allowance (ESA) i.e. the contributory versions of these benefits that apply to new claims in UC full service areas. If UC is claimed along with new style JSA or ESA, then the work related requirements that apply for UC need to be met.⁴ So, for example, a single parent with a child aged 2 claiming both UC and new style JSA would not be subject to all work related requirements for new style JSA.
All Work Related Requirements
Unless more limited work related requirements apply, the default position for UC and new style JSA is that a work search and work availability requirement must be imposed.⁵ There is also a discretion to apply a work focused interview requirement or a work preparation requirement, or both. However, there are exceptions to the above in the UC Regs 2013 which will be covered in this article.
The work availability requirement is the equivalent in old style JSA of being available for work and the rules are similar — for example being allowed to take up to one month to take up work if the client is a responsible carer or relevant carer (see endnote 9). There are provisions (identical to those in the JSA Regulations 2013 ) on being able to place restrictions on the type of work, the rate of pay and the location of the work that a claimant could be expected to search for.⁶
The term ‘work search’ is what was previously known under old style JSA as ‘actively seeking work’. Under old style JSA a claimant could satisfy this requirement by usually taking at least 3 ‘steps’ to find work in each week.⁷ The default position for work search and work availability under UC and new style JSA is an ‘expected hours’ requirement of 35 hours per week, unless a lower amount applies in prescribed circumstances.⁸ Work search is defined in Section 17(1) of the WRA 2012 as all reasonable action, including any particular action specified by the Secretary of State, for the purpose of obtaining paid work or more paid work or better paid work.
The reference to more paid work or better paid work is known as ‘in work conditionality’, a unique feature of the UC system.
It is worth noting that under old style JSA a failure to be actively seeking work or available for work could result in a complete refusal or withdrawal of benefit — under UC and new style JSA a medium level sanction could be imposed instead for failure in either a work search or work availability requirement.
Reducing the work search and work availability requirement
Reg 88(1) UC Regs 2013 contains the default ‘expected hours’ requirement of 35 pw. However under Reg 88(2) less than 35 hours can be allowed in four circumstances;
- where someone is a ‘relevant carer’, a ‘responsible carer’ or a ‘responsible foster carer’ and the Secretary of State is satisfied that a lower number of hours is compatible with those caring responsibilities and that the claimant has reasonable prospects of securing work.⁹
- Where someone is a ‘responsible carer’ for a child aged 3 to 12 years, up to 30 hours pw. This was a change from 25 October 2023 — see the DWP announcement. As noted, formerly parents of 3 and 4-year-olds were expected to commit to a maximum work search of 16 hours pw, and parents of 5 to 12-year-olds a maximum of 25 hours pw. ADM Ch. J3 Para. J3058 has now been amended, but Reg. 88(2) still has two categories, depending on whether the child has reached compulsory school age. The law (Reg 88(2)(aa) and (b)) hasn’t changed and says that for those under school age it should be ‘the number of hours that the Secretary of State considers is compatible with those caring responsibilities’. For children over school age it should be ‘the number of hours that the Secretary of State considers is compatible with the child’s normal school hours (including the normal time it takes the child to travel to and from school)’. The DWP announcement notes that ‘Commitments will be tailored to parents’ personal circumstances, including the availability of childcare’. Updated UC Guidance does describe 30 hours as a ‘default’ but notes that maximum expected hours can be adjusted to take into account individual circumstances.
- where the claimant has a physical or mental impairment¹⁰, the number of hours that the Secretary of State considers is reasonable in the light of that impairment. There is no requirement to be in receipt of a disability benefit such as Personal Independence Payment. No lower limit to expected hours is stipulated.
The commentary to the guide to UC legislation by Sweet and Maxwell says; ‘The number under para.(1) is 35, unless some lesser number is applicable under para.(2). Can the number be reduced to zero? Why not? Zero is a number and it is less than 35’.
Example
Amardeep moved to UC after he failed a work capability assessment for income related ESA and lost his appeal regarding whether he had limited capability for work. He has a learning disability and the work coach agrees that his expected hours work search should be 25 per week. He lives with his partner Jean who provides some care. Due to this the work coach agrees that Jean can limit her work search to 30 hours per week. Jean is defined as a ‘relevant carer’ and does not need to be claiming carer’s allowance or satisfy the conditions of entitlement to carer’s allowance.
Also under Reg 95(1)(a)(ii) if the ‘expected hours’ requirement in Reg 88 is not met in any week, the Secretary of State can treat the claimant as satisfying the work search requirement if s/he is satisfied that all reasonable action has been taken to obtain work and that the action has given the claimant the best prospects of obtaining work.¹¹
Deductions from expected hours
Reg 95(2)(a) allows a deduction of up to 50% from ‘expected hours’ for those undertaking voluntary work, as well as deductions for hours spent on paid work, a work preparation requirement or a voluntary work preparation requirement. Note that to count as ‘voluntary work preparation’ the activity needs to be agreed by the Secretary of State. Reg 95(2)(b) allows a deduction from ‘expected hours’ in certain circumstances such as temporary childcare, funeral arrangements and ‘other temporary circumstances’.¹²
Suspension of work related requirements
In addition, under Regs 98 and 99 UC Regs 2013, provisions exist regarding temporary suspension of any work related requirements in certain circumstances including;
- Victims of domestic violence for up to 13 weeks (for UC, JSA and ESA) and a further 13 weeks (for UC only) for a responsible carer of a child under 16. The regulations include a definition of domestic violence and certain conditions have to be met.¹³
- The death of a partner, child or qualifying young person within the previous 6 months (for UC and JSA).
- Unfitness for work if allowed an extended period of sickness for JSA (Reg 46A JSA Regs 2013).
- Unfitness for work in UC for more than 2 periods of 14 days in 12 months, or for longer than 14 days provided this is accepted as reasonable even if a work search requirement were limited.¹⁴
- For claimants with complex needs there is a discretionary relaxation of work related requirements, which can be in the short, medium or long term, or for recurring periods, on receipt of supporting evidence.¹⁵
In an Upper Tribunal decision¹⁶ the claimant had been sanctioned for failing to carry out work search at a time when she was dealing with a family crisis. Her appeal was rejected by the First-tier Tribunal (FtT). The Upper Tribunal Judge was critical of this, noting that the FtT had assumed that a 35 hours per week work search was ‘immutable’. Also in her claimant commitment the Judge stressed that the claimant had stated she would normally spend 35 hours per week looking for work rather than always. The decision is a good summary of the circumstances in which deductions can be made from ‘expected hours’ and when work search requirements cannot be imposed in temporary circumstances.
In Work Conditionality
The work search requirement includes obtaining more paid work or better paid work and is one of the more controversial areas of UC. Under old style JSA a person could not be sanctioned for refusing to take up self employment or for giving it up, or for refusing or giving up a zero hours contract.¹⁷ Under UC a claimant will not be sanctioned for refusing or giving up self employment but the guidance is more nuanced regarding zero hours contracts and is based on a claimant’s individual circumstances.¹⁸
The ‘expected hours’ work search requirement in Reg 88 also has the function (for in work conditionality) of determining an ‘earnings threshold’ in Reg 90 (this will also be used for calculating the Minimum Income Floor for the self-employed in Reg 62). This will be the expected hours per week multiplied by the National Minimum Wage (NMW), which can vary for those aged under 21 according to age. For those aged at least 21 the National Living Wage (NLW) rate applies. This is then multiplied by 52 and divided by 12 to give a monthly figure. If gross earnings are above this figure, than the claimant is exempt from any work related requirements. There are provisions in Reg 90(6) to average fluctuating earnings over assessment periods.
As noted above, the ‘expected hours’ under Reg 88 may be fewer than 35 per week which would then reduce the earnings threshold, and can also be reduced temporarily under Reg 95(2)(b).
For a couple, the ‘earnings threshold’ is the sum of their individual thresholds, which may be different. Their gross earnings are then combined and if they exceed the earnings threshold then neither member of the couple is subject to any work related requirements, even if one member of the couple would be below their own individual threshold.¹⁹
The default ‘expected hours’ for an apprentice is 30 pw but can also be less under Reg 88. The earnings threshold is then calculated using the NMW rate that applies to an apprentice (currently £6.40 per hour).
Example
From the previous example, Amardeep’s earnings threshold is 25 hours per week x the NLW of £11.44 which is £1239 per month (UC rounds down for these purposes under Reg.6(1A) UC Regs 2013). Jean’s is 30 hours per week x NLW which is £1487 per month. Their joint threshold is therefore £2726 per month. Amardeep gets a job for 15 hours per week at £11.44 per hour and earns £743.60 gross per month. Jean works for 28 hours per week at £17 per hour and earns £2062.67 gross per month. Their joint earnings are now £2806.27 gross which is over their joint threshold, therefore neither are subject to any work related requirements. This is the case despite Amaerdeep’s earnings being below his individual threshold, as the couple threshold is used.
Also under Reg 99(6) a work search and work availability requirement cannot be imposed on a single claimant earning at or more than 15 hours pw x NLW ( currently £743 per month) or joint claimants earning at or more than 24 hours pw x NLW (£1189 per month). Though they could still be subject to work preparation and work focused interview requirement. So a claimant or claimants who may not earn enough under Reg 90 to escape all work related requirements may still be able to avoid being subject to the most onerous work related requirements. This does not apply to those selected to take part in the Department For Work and Pensions In Work Pilot Scheme.
The above applies from 30 January 2023, following an earlier increase from 26 September 2022 ( 12 hours pw x NLW for single claimants and 19 hours pw for couples).
From 13 May 2024 these will increase further to 18 hours pw x NLW for a single claimant (£892 per month) and 29 hours pw for couples (£1437 per month).
The DWP calls the earnings limit in Reg 99(6) the Administrative Earnings Threshold (AET) and the earnings threshold in Reg 90 the Conditionality Earnings Threshold (CET). Claimants earning at least the CET ( as in the example above) will have no work related requirements. Claimants earning at least the AET but less than the CET will be put into the ‘Light Touch Regime’.²⁰ Single or joint claimants earning below the AET will be placed in the ‘Intensive Work Search Regime’.²¹
The AET is a fixed threshold but the CET is not as it depends on ‘expected hours’ which can be reduced from the default of 35 hours pw. The NLW is used to calculate the AET even if the client is aged under 21, whereas for the CET the NMW rate applies which can be less for those aged under 21.
Also note that from the amendments on 26 September 2022 it is possible for a claimant who is part of a couple, and whose individual earnings are at or above their individual AET, to be put in the Light Touch Regime — even if joint earnings are below the couple AET.
Claimants awaiting a work capability assessment
Under the ESA Regulations 2013 a claimant can never be subject to a work search or work availability requirement for new style ESA, only a work focused interview and a work preparation requirement. If the person is claiming UC as well, then the equivalent UC conditionality will apply. Under Reg 39(1)(a) UC Regs 2013 a determination of limited capability for work under New Style ESA is binding on UC (and vice versa under Reg 16(1)(h) ESA Regs 2013). The same applies for limited capability for work related activity under Reg 40(1)(a)(ii) of the UC Regs and Reg 31(1) of the ESA Regs.
However, where does this leave claimants who are awaiting a work capability assessment (WCA) under UC only (or are claiming both UC and new style ESA) as they cannot limit their conditionality due to having limited capability for work/ work related activity until they have been assessed and passed a WCA? Unless they could be subject to no work related requirements (for example by being the responsible carer of a child aged under one), a work focused interview requirement only (for example by being the responsible carer of a child aged one) or a work preparation requirement only as a responsible carer for a child aged 2, a claimant awaiting a WCA under UC may fall into the ‘all work related requirements’ group.
The approach of work coaches appears to be inconsistent in this situation.²² Some are relaxing (‘switching off’) all work related requirements (Reg 99(5) and (5A)), some are applying limited work search and availability requirements (under Reg.88(2)) and from other cases we have seen some are imposing full work related requirements.
Although there would be no right of appeal against the imposition of a work related requirement, or the refusal to relax one, there is a right to request a review of a claimant commitment. Failing that, if a sanction is applied the client can run the usual good reason argument for failure to comply and there is also nothing to stop a Tribunal from looking at the exercise of the discretion to impose the requirement. Advisers should also check whether the requirement to relax conditionality was not discretionary at all in the client’s particular circumstances.
Carlos Hagi works in the Welfare Benefits Expert Advice team at Citizens Advice.
Endnotes
1.ADM Ch. J1 Note 2 to Para. J1004
2. s4(1)(e) WRA 2012
3. ADM Ch.J1 Paras. J1020–1026
4. Reg 42 ESA Regs 2013; Reg 5 JSA Regs 2013
5. s22 WRA 2012
6. ADM Ch.J3 Paras. J3160–3166
7. Reg 18(1) JSA Regs 1996
8. Reg 88 UC Regs 2013; Reg 9 JSA Regs 2013
9. The regulations use the terms ‘relevant carer’, ‘responsible carer’ and ‘responsible foster parent’, which have a particular meaning — see ADM Ch.J2 Paras. J2034–2040
10. ADM Ch.J3 Paras. J3060–3062.
11. ADM Ch.J3 Paras. J3063 –3064, 3075–3077
12. See ADM Ch.J3 Para. 3065–3074
13. ADM Ch.J3 Para. 3180–3191 and Appendix
14. ADM Ch.J3 Para. 3226–3230
15. ADM Ch.J3 Paras. 3250–3262
16. RR v Secretary of State for Work and Pensions (UC): [2017] UKUT 459 (AAC)
17. DMG Vol. 6 Ch.34 Para. 34016 and 34415–34417
18. ADM Ch.K2 Para.2301–2303. For self employment see Para. K2224
19. ADM Ch.J2 Para 2080–2089
20. UC Full Service Guidance ‘Light Touch Regime’ version 9.0
21. As above, ‘Intensive Work Search Regime’ version 21
22. See UC Full Service Guidance ‘Switching off work availability and work related activities’ version 18 and ‘Health conditions and disabilities — day 1 to day 29’ version 18. Also see ADM Ch. J3 Paras 3226- 3229, and examples.
Carlos Hagi works in the Welfare Benefits Expert Advice Team at Citizens Advice.
The information in this article is correct as of the date of publication.
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