Safeguarding procedures exist within DWP guidance to protect vulnerable claimants if their claim is about to be stopped. Greenwich Welfare Rights Service has found that querying with the DWP when the guidance has not been applied has regularly resulted in benefit being reinstated quickly. Owen Stevens and Corin Hammersley explain current safeguarding guidance for employment and support allowance (ESA) and universal credit (UC).
None of the guidance referred to in the article, apart from Work Programme Provider guidance, is publicly available; it has been obtained by freedom of information requests by Greenwich Welfare Rights Service.1
After the death of a claimant in 2000, the DWP introduced the ‘minimum requirements’. These requirements were designed to ensure that the DWP is ‘not found to be neglectful in [its] duty of care’ towards claimants with a ‘known background of mental illness’. The minimum requirements are:
- where a claimant has been attending a psychiatric unit, a liaison officer should be appointed to maintain good relations between the Jobcentre Plus and the patient affairs officer;
- where it is known that a claimant has a social worker designated to her/him, the DWP
- should liaise closely with the social services department;
- where there is a known history of mental illness, all cases should be referred to a manager before a decision is made to withdraw benefit.
The safeguarding intentions behind the minimum requirements have since been used as the basis of DWP safeguarding guidance.
ESA home visit safeguards
Claimants with mental health conditions or learning disabilities, or conditions affecting communication/cognition (eg, stroke, autistic spectrum disorder, drug and alcohol addiction), or any condition that could affect their ability to understand and comply with conditionality,2 are classed as ‘vulnerable’ for the purposes of safeguarding.3 For the remainder of this article, these conditions are referred to as ‘mental health conditions’.
Vulnerable clients should be protected by safeguards based around home visits (referred to as ‘core visits’ in DWP guidance). The purpose of the meeting with the claimant is to explain her/his responsibility to comply with the conditions of the benefit and to check whether s/he understands her/his responsibility to comply with those conditions. The safeguarding procedures exist only in guidance (not legislation) and vary depending on the condition the claimant failed to meet and the agency involved with the claimant.
When DWP staff are considering not accepting good cause from a vulnerable client for either failing to attend, participate in, or undertake a meeting or work-related activity set by the Jobcentre Plus, they must carry out a home visit before any sanction decision is considered. A home visit must take place each time the claimant fails to comply with her/his responsibilities in order to protect claimants with fluctuating conditions. Two attempts must be made to visit the claimant at home. If the DWP fails in its attempts to visit the claimant at home, it must notify a third-party agency before it stops the claimant’s benefit.4 The guidance says this notification is required as the DWP has a ‘moral obligation to make organisations aware of potential incidents around vulnerable claimants’.5
When DWP staff are considering stopping benefit after a claimant fails to attend a work capability assessment (WCA), they must first consider whether they should make a home visit to the claimant. The safeguards in this situation are much weaker than those described above. If a claimant has returned a form or accepted a phone call from the DWP asking why s/he did not attend the WCA, or whether s/he has had a safeguarding home visit in the past, then the DWP does not have to attempt a home visit, even if it is considering not accepting good cause. Only if the claimant has not engaged in the ways described here does the DWP have to consider a home visit. If the DWP does not accept good cause, there is no requirement to notify a third party before stopping benefit.6
Work Programme provider guidance in ESA and UC
Safeguarding activity is referred to as a ‘high level must do’7 that Work Programme providers (WPP) must complete before raising a sanction doubt for a vulnerable client. Vulnerability is defined as being on ESA with a mental health condition.
For ESA claimants, the WPP must see a vulnerable claimant face to face every time it is considering raising a sanction doubt. The meeting can take place outside of the office or at the claimant’s home if necessary. If the WPP cannot see the claimant face to face, it should not raise the sanction doubt. If, having met the claimant, the WPP decides that the claimant did not understand the mandatory activity, it will not raise the sanction doubt.
The safeguards in WPP guidance for UC claimants broadly replicate those for ESA claimants. However, people on UC will not be safeguarded until they have gone through a WCA. This is different to the current situation, where claimants would be safeguarded during the ESA assessment phase. In addition, the WPP must always refer the client for a sanction doubt after having safeguarded or attempted to safeguard the claimant and set out the safe guarding activities on the sanction referral.
The approach to safeguarding is completely changed in DWP UC operational guidance.8 The definition of vulnerability used in DWP ESA and WPP guidance is no longer used. UC guidance aligns with DWP vulnerability guidance and recognises that claimants have ‘complex needs’ which can vary according to their circumstances. Complex needs can include health problems, having recently been released from prison, refugee status, etc. This approach removes the focus on people with mental health conditions and we are concerned that its application may become diluted.
Core visits are referred to far less often and there is no reference to visits being required each time DWP is considering not accepting good cause from a claimant in order to protect claimants with variable conditions. There is no longer any reference to minimum requirements, to a DWP duty of care to claimants, or to a moral obligation to notify third parties of potential incidents.
Weaknesses of safeguards
- The safeguards are not enshrined in legislation. The Work and Pensions Select Committee report on sanctions9 after the Oakley Review recommended that safeguards be included in legislation.
- The safeguards are not being carried over into UC despite Lord Freud’s assurance in January 2015 that they would be.10
- The safeguards do not apply to jobseeker’s allowance (JSA). JSA claimants with a mental health condition will not be protected by the safeguards. The Oakley Review recognised that many JSA claimants are vulnerable.
- The safeguards are only set out in internal DWP guidance, making it difficult to hold the DWP to account, and meaning that they are not widely known.
Greenwich Welfare Rights Service has found referring to the safeguarding guidance effective in getting benefits reinstated quickly, sometimes the same day, without the need for a mandatory reconsideration or appeal.11 There are, however, significant weaknesses with the safeguarding provisions and further policy work about how the DWP works with vulnerable claimants is needed.
Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.
- 1. For more information on this topic, contact [email protected]
- 2. Conditions listed in DWP Incapacity Reference Guide
- 3. Note that this definition of vulnerability is different to that used in the DWP Vulnerability Guidance
- 4. Guidance lists the following third parties: claimant’s appointee/power of attorney (POA)/next of kin, claimant’s community psychiatric nurse, social services, police.
- 5. JCP Guidance: 05 Jobcentre Offer, 08 Failure to Attend/Failure to Participate in a Work-Focused Interview and Failure to Undertake Work-Related Activity
- 6. ESA BDC Guidance: 10 WCA, 08 Outcomes
- 7. WPP UC Guidance: Chapter 4b – Safeguarding and Vulnerability
- 8. WPP UC Guidance: Chapter 4b – Safeguarding and Vulnerability
- 9. Independent review of the operation of Jobseeker’s Allowance sanctions validated by the Jobseekers Act 2013, Matthew Oakley, 22 July 2014
- 10. Stated during Q&A session at Local Government Association’s Council, Communities and Universal Credit Conference, 12 January 2015
- 11. Thanks to Andy Campbell for initiating and contributing to work on safeguards.