Universal Credit and Conditionality

Carlos Hagi considers some important issues around conditionality (particularly the all work related requirements) and universal credit.

Carlos Hagi works in the Welfare Benefits Expert Advice team at Citizens Advice

With the roll out of universal credit (UC) full service set to accelerate from May 2018,advisers may be confronted with the conditionality rules in UC for the first time.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 2012 (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 will 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.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).³ As 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 may affect the conditionality requirements of the other.

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 in both UC live and full service areas.If UC is claimed along with new style JSA or ESA, then only the equivalent work related requirements that apply for UC need to be met.⁴

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.

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 (similar to those in the JSA Regulations 1996) 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 taking at least 3 ‘steps’ to find work in each week.⁷ The default position for ‘work search’ in 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 of benefit — under UC and new style JSA a sanction could be imposed instead for failure in either a work search or work availability requirement.

Under Reg 88 of the Universal Credit Regulations 2013 (UC 2013) less than 35 hours per week work search can be required in three 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 the person is a ‘responsible carer’ for a child under 13, the number of hours compatible with normal school hours including travel to and from school.
  • 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,Disability Living Allowance or Attendance Allowance).

Example;

Amardeep moved to UC after he failed a work capability assessment for ESA. He lost his appeal that he did not have limited capability for work. He has a learning disability and the work coach agrees that his expected hours work search should be 15 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.

Also under Reg 95(1)UC 2013 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. Interpreting the latter provision could be problematic, but as work search is defined as the requirement to take all reasonable action in Section 17(1)WRA 2012 the test cannot be made any higher than that.¹¹

Reg 95(2)(a) allows a deduction of up to 50% from ‘expected hours’ for those undertaking voluntary work.Reg 95(2)(b) allows a deduction from ‘expected hours’ in certain circumstances such as temporary childcare,funeral arrangements and ‘other temporary circumstances’.¹²

In addition, under Regs 98 and 99 UC 2013, provisions exist regarding 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 a recent 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.Paid work is defined in Reg 2 UC 2013 as work done for payment or in expectation of payment, and could include self-employment.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 the guidance is more nuanced 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 relevant national minimum wage (NMW). 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

Example;

From the previous example,Amardeep’s earnings threshold is 15 hours per week x NMW which is £508.95 per month (for someone aged over 25).Jean’s is 30 hours per week x NMW which is £1017.90 per month. Their joint threshold is therefore £1526.85 per month.Amardeep gets a job for 6 hours per week at £8 per hour and earns £208 per month.Jean works for 21 hours per week at £15 per hour and earns £1365 per month.Their joint earnings are now £1573 which is over their joint threshold,therefore neither are subject to any work related requirements.

The above rules will favour higher earning claimants-for a couple who are both subject to all work related requirements it may be possible for them both to escape further conditionality if one does not work at all but the other is on a relatively high wage.

Also under Reg 99(6) UC 2013 a work search requirement cannot be imposed on a single claimant earning more than £338 per month or joint claimants earning more than £541 per month (However, they may have to meet other work related requirements).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 a work search requirement.This does not apply to those selected to take part in the Department For Work and Pensions’(DWP) In Work Pilot Scheme, which has been extended for another year from 19th February 2018.

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 more than 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

Claimants awaiting a work capability assessment

Under the ESA Regulations 2013 (ESA 2013) a claimant can never be subject to a work search or work availability requirement,only a work focused interview and a work preparation requirement. If the person is claiming UC then the equivalent UC conditionality will apply.Under Reg 39(1)(a) UC 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 2013).The same applies for limited capability for work related activity under Reg 40(1)(a)(ii)UC 2013 and Reg 31(1) ESA 2013.

However, where does this leave claimants who are awaiting a work capability assessment (WCA) under UC only and are not claiming New Style ESA, as they cannot limit their conditionality until they have been assessed? 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 will fall into the ‘all work related requirements’ group.

The approach of work coaches appears to be inconsistent in this situation²² some are relaxing all work related requirements (presumably under Reg 99(5)© UC 2013),and some are applying limited work search and availability requirements (presumably under Reg.88(2)© UC 2013).

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.

Endnotes

1.See UC Full Service Guidance ‘Claimant Commitment at a Glance v 2.0’ and ‘Building the Claimant Commitment v 1.0’ https://www.rightsnet.org.uk/universal-credit-full-service-guidance

2. S4(1)(e),WRA 2012

3. ADM Ch.J1 Para.1020–1025 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/661697/admj1.pdf

4. Reg 42,ESA 2013;Reg.5,JSA 2013

5. S22,WRA 2012

6. ADM Ch.J3 Para.3160–3164 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/661702/admj3.pdf

7. Reg 18(1),JSA 1996

8. Reg 88,UC 2013;Reg 9,JSA 2013

9. The regulations use the terms ‘relevant carer’, ‘responsible carer’ and ‘responsible foster parent’,which have a particular meaning-see ADM Ch.J2 Para.2034–2037 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/661700/admj2.pdf

10. ADM Ch.J3 Para.3055–3062 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/661702/admj3.pdf

11. See ADM Ch.J3 Para.3075–3077 for further guidance

12. ADM Ch.J3 Para. 3065–3072

13. ADM Ch.J3 Para. 3180–3191 and Appendix

14. ADM Ch.J3 Para.3226–3230

15. ADM Ch.J3 Para.3250–3257

16. RR v Secretary of State for Work and Pensions (UC): [2017] UKUT 459 (AAC) https://www.gov.uk/administrative-appeals-tribunal-decisions/rr-v-secretary-of-state-for-work-and-pensions-uc-2017-ukut-459-aac

17. DMG Vol.6 Ch.34 Para.34415–34417 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/626756/dmgch34.pd

18. ADM Ch.K2 Para.2301–2303 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/618970/admk2.pdf

19. ADM Ch.J2 Para 2080–2089

20. UC Full Service Guidance ‘Light Touch Regime v 7.0’

21. As above, ‘Intensive Work Search Regime v 9.0’.

22. See UC Full Service Guidance ‘Claimant Commitment — Switching off work availability and work related activities v3.0’ and Health conditions and disabilities — day 1 to day 29 v.7.0’