When should Work Coach's give consideration to amending or lifting the 35 hour work search requirement
Upper tier Tribunal Ruling CUC/1808/2017
When should a person on Universal Credit with a claimant commitment for 35 hours job searching have it relaxed or removed?
The claimant had been in receipt of universal credit since May 2015 and was in the 'all work-related requirements' group and therefore subject to the imposition of both the work search requirement and the work availability requirement (sections 17 and 18 or the Welfare Reform Act 2012 (the Act) respectively). She had signed a claimant commitment which included a statement that 'I'll normally spend 35 hours per week looking and preparing for work'.
On 18 July 2016 - more than a year into her claim - the claimant attended a 'work search review' with a different work coach from usual. The work coach highlighted that one of the purposes of the appointment was for him to be able to check the claimant's 35 hour work search, and he issued UC71 forms in respect of two weeks in which the claimant was required to provide details of her work search. The claimant returned them outlining her job search and also highlighting that for the second week - 11 July to 17 July 2016 - the update on her job search had not been completed until 18 July due to a family crisis.
On 17 October 2016 a decision maker concluded that a medium level sanction of 28 days should be applied in respect of each week on the ground that the claimant had not been engaged in work search amounting to 35 hours per week. The decision was confirmed on mandatory reconsideration and the claimant appealed to the Upper Tribunal.
Issue before the Upper Tribunal
Whether a claimant must always carry out 35 hours of worksearch.
Judge Wikeley allows the appeal, and revises the decisions of 17 October 2016 finding that the claimant undertook all reasonable work search action over both weeks and that both sanctions should not have been imposed.
Judge Wikeley highlights that section 17 of the Act provides that the 'work search requirement' is a requirement that the claimant take 'all reasonable action' and 'any particular action specified by the Secretary of State', and that regulation 95(1) of the Universal Credit Regulations 2013 (the Regulations) provides -
‘95(1) A claimant is to be treated as not having complied with a work search requirement to take all reasonable action for the purpose of obtaining paid work in any week unless -
(i) the time which the claimant spends taking action for the purpose of obtaining paid work is at least the claimant's expected number of hours per week minus any relevant deductions, or
(ii) the Secretary of State is satisfied that the claimant has taken all reasonable action for the purpose of obtaining paid work despite the number of hours that the claimant spends taking such action being lower than the expected number of hours per week; and
(b) that action gives the claimant the best prospects of obtaining work.’
Judge Wikeley observes that this prompts consideration of two issues - what are the claimant's 'expected number of hours per week', and what are 'any relevant deductions' from those expected hours? Regulation 88 of the Regulations specifies that the expected number of hours is 35 (unless particular exceptions apply which did not in this case) and regulation 95(2) allows for deductions for carrying out work or work preparation or 'for the claimant to deal with temporary childcare responsibilities, a domestic emergency, funeral arrangements or other temporary circumstances'. In this case the work coach had focused on what the claimant had not done, rather than given any consideration to the reasons why she had not maintained her usual level of work search activity.
Judge Wikeley concludes -
'Had the decision maker or First-tier Tribunal then explored the matter further, they would have established that the family proceedings were impacting on the steps the appellant could reasonably take in July as well as in November 2016. On this basis the appellant’s expected number of hours should have been reduced through the application of regulation 95(1)(a)(i) and 95(2)(b).
Whether or not the precise terms of those provisions had been met, the same result could have been achieved by deciding that the appellant had taken all reasonable action despite not meeting the expected number of hours per week (see regulation 95(1)(a)(ii))' (paragraph 31)
NB - Judge Wikeley also notes that regulation 99(5)(b) also provides for no worksearch requirement to be imposed where the claimant 'has temporary child care responsibilities or is dealing with a domestic emergency, funeral arrangements or other temporary circumstances'.
Judge Wikeley ends by highlighting three wider issues of note -
it was a matter of great regret that it had taken more than a year to get to a satisfactory resolution to the case during which the claimant had endured very difficult financial circumstances;
it was unfortunate that the Secretary of State's original response to the appeal was 'less than comprehensive in terms of its coverage of the relevant law'; and
with the increased severity of the universal credit sanctions regime, as compared with the previous arrangements, tribunals need to scrutinise sanctions decisions with considerable care - there is an argument in sanctions cases that the claimant should be given the benefit of any doubt that may reasonably arise.