Our latest guest writer Michael Adler from the University of Edinburgh explores ways to ameliorate the effects of sanctions
In an article entitled ‘A new Leviathan: benefit sanctions in the twenty first century’, which appears in the current issue of the Journal of Law and Society, I draw attention to the spectacular growth of benefit sanctions in the UK that took place between 1998 and 2013. I noted that, in 2012 and 2013, the number of Jobseekers’ Allowance (JSA) and Employment Support Allowance (ESA) sanctions imposed by the DWP, which was more than one million, actually exceeded the number of fines imposed in the criminal courts.
In the article, I put forward a three-fold typology of monetary sanctions, comprising punitive judicial sanctions, exemplified by court fines, regulatory administrative sanctions, exemplified by parking penalties, and disciplinary administrative monetary sanctions, exemplified by benefit sanctions. I compared fines, parking penalties and benefit sanctions in terms of their main aims, how they are imposed, the extent to which adjudication protects the interests of those who are sanctioned, their severity, the socio-economic characteristics of those who are sanctioned, the extent to which they cause hardship, the extent to which they are proportionate and whether or not they are compatible with justice.
Since 2013, the number of JSA and ESA sanctions has been falling, mainly because of the fall in unemployment and in the number of unemployed claimants. The latest estimate, for 2015, of the number of sanctions against unemployed people (on JSA or Universal Credit) was 358,000. In addition, there were an estimated 24,500 ESA sanctions against long-term sick or disabled claimants. Although this fall is obviously to be welcomed, sanctions are still problematic and the question I wish to address in this blog is what, if anything, can be done this.
In March 2015, the Commons Work and Pensions Committee published a report on benefit sanctions, which repeated its previous call for a comprehensive, independent review of benefit sanctions and for a serious attempt to resolve the conflicting demands on claimants made by Jobcentre Plus and Work Programme staff to enable them to take a commonsense view on good reasons for non-compliance. The committee concluded that there was no evidence to support the longer sanction periods that were introduced in October 2012 and recommended the piloting of pre-sanction written warnings and non-financial sanctions.
The government’s response to the report, published in October 2015, does not acknowledge any of the fundamental problems of the sanctions system identified by the committee. The government rejected all the recommendations that would have thrown further light on the problems of the system. These are: a comprehensive independent review, a specific review of ESA sanctioning, an exploration of alternatives to financial sanctions (other than possibly for ESA claimants), an evaluation of the lengthening of sanctions in 2012, early evaluation of the Claimant Commitment, monitoring the destinations of sanctioned claimants, and reform of the legislative framework. It also rejected the recommendation that all claimants should be allowed to apply for a hardship payment from day one of a sanction, rather than waiting for two weeks, and gave up on its attempts to prevent the wrongful cancellation of Housing Benefit for JSA claimants who are ‘disentitled’.
The only recommendation that was accepted was the restoration of automated sanction notifications, which should resolve the problem of JSA claimants who are sanctioned but not ‘disentitled’ having their money stopped before they are informed. Other improvements that the government is considering include allowing mentally ill and homeless people to apply for hardship payments from day one; automatic hardship application for ‘vulnerable’ claimants; a 14-day pause for representations before a sanction is applied; and possible resolution in future Work Programme contracts of the problem of providers having to make obviously unreasonable referrals for sanction.
There are numerous ways in which the hardship caused by benefit sanctions could be ameliorated. It could, for example, be achieved by:
- limiting the circumstances in which sanctions can be imposed;
- reducing the severity of sanctions;
- giving claimants a warning before imposing a sanction;
- giving claimants an opportunity to attend a hearing before a sanction is imposed;
- presenting claimants with the evidence on which the case for imposing sanctions is based and allowing them to challenge it;
- giving benefits staff more scope to exercise discretion (ie, to use common sense) before sanctions are imposed;
- allowing claimants to appeal directly to a tribunal when sanctions are imposed;
- developing non-financial alternatives to the existing benefit sanctions for minor misdemeanours.
Unfortunately, because the government is so committed to the principle of conditionality in the delivery of social security and clearly believes, as an article of faith, in the efficacy of benefit sanctions, it is highly unlikely that any of these measures will be introduced in the present political climate.