Jobseeker Sanction that stops benefits to all household members inc. housing benefit

[Rights Seeker]

I live in a small British crown dependency. I don't wish to state the name of the dependency as it might help the local authorities to identify the case I am referring to by means of a google search, so shall we just refer to the location as the island of 'Jinsey'?

New Regulations passed in 2013 by Jinsey's tinpot legislative assembly introduced a new system of jobseeker sanctions, starting with a warning (no financial penalty), a first breach of a warning occurring within a year of the warning (loss of 2 weeks of Jinsey's equivalent of Jobseeker's Allowance - called the 'adult component' of income support), a 2nd breach breach of a warning occurring within a year of the previous breach of the warning (loss of 4 weeks of the adult component of income support) and then a 3rd or subsequent breach of a warning occurring within a year of the previous breach of the warning (closure of the household claim - loss of all components of income support to all members of the household for an ostensible period of 6 weeks and ineligible to claim 'special payments', i.e. hardship payments).

All Jinsey's means-tested benefits were incorporated into one benefit called income support in 2008 and administered by a sole Department, including a tenant's entitlement to any income-based housing benefit (Jinsey residents have historically suffered very high rents and a shortage of affordable housing). Whereas the financial penalties for a 1st or 2nd breach of a warning only affect the adult component (£92.12 per week) in respect of the sole adult member of the household who has failed actively seeking work requirements, the third breach of a warning goes way beyond this in stopping every component of income support for every member of the household, including partner and children, for an ostensible period of 6 weeks. I say 'ostensible' because the legislature adopted a proposition which stopped benefits to the household for 6 weeks - no longer than that. There is no evidence that the legislature considered or was made aware of the possibility that the discontinuation of benefits to the household could continue for a period much longer than 6 weeks.

However, the Department which administers income support has gone beyond what is stated in the Regulations and is using a separate requirement (not explained to the legislature during the debate) that the sanctioned jobseeker must also complete "6 consecutive weeks" of actively seeking work before the household can apply to have the claim reopened. This separate requirement enables the Department to continue the stoppage of benefits to the whole household once the 6-week breach period expires, without actually doing anything. In some cases, the Department has also been ignoring periods of certificated illness of the sanctioned jobseeker when calculating whether the 6 consecutive week requirement has been satisfied. It has also failed to change a sanctioned jobseeker's actively seeking work schedule after the jobseeker informed them that he had gained part-time employment following the issue of a third breach of a warning notice, and therefore could no longer satisfy the same high level of activities to complete the 6-week requirement. The sanctioned jobseeker only has a right of appeal to claim good cause for not undertaking the particular jobseeking activity which resulted in the breach notice being issued, but has no right to appeal anything else that follows on as a consequence of the third breach of a warning notice being issued. For example, he has no right of appeal to contest the continued non-payment of income support beyond the initial 6-week period stated in law because the household claim remains closed and the Department simply takes no further decision. It appears that Jinsey's version of an independent tribunal will only examine the facts that resulted in the breach notice initially being issued - not any human rights consequences (e.g. homelessness) that might come about as a later consequence of the stoppage of benefits. It will also refuse jurisdiction in relation to the way the Department issued the notice, saying that matters of maladministration are not grounds for appeal. It is also extremely reluctant to consider points of law which question the legality of these sanctions.

I am aware of a jobseeker tenant living alone who faces eviction in the next few months because of the continuing stoppage of his income support for several months (most vitally, the housing benefit component, which makes up more than half of his entitlement). He is trying to take the matter to Jinsey's highest court but is not sure what human rights article of the ECHR might have been violated in his case - article 8 (protection of personal life?), article 1 (right to property?), article 3 (cruel and degrading treatment?).

I would suspect that that if he had a partner and children, there would be a very strong case under article 8 because the 3rd breach of a warning stops their benefit entitlement too and the only realistic way for the other family members to get payments restarted would be for the sanctioned jobseeker to move out of the family home (his benefits would still not be paid but the other family members could then apply to get the household claim reopened). However, as this jobseeker lives alone, I fear that a court would only address his own circumstances and until such time as he is actually evicted and becomes homeless, it may be hard to prove what right has actually been violated, only that it is capable of and likely to be violated in the near future. The jobseeker has no right to legal aid and there is only one local benefits advice group, which is known to be pro-Jinsey government with respect to the new sanctions regime. Therefore no reliable legal advice is available to him on Jinsey.

If offering advice, it might help if you identify whether you are legally-qualified or not, but any comments by anyone are welcome.

[Rights Seeker]

Re: Jobseeker Sanction that stops benefits to all household members inc. housing bene

the third breach of a warning goes way beyond this in stopping every component of income support for every member of the household, including partner and children, for an ostensible period of 6 weeks. I say 'ostensible' because the legislature adopted a proposition which stopped benefits to the household for 6 weeks - no longer than that. There is no evidence that the legislature considered or was made aware of the possibility that the discontinuation of benefits to the household could continue for a period much longer than 6 weeks.

However, the Department which administers income support has gone beyond what is stated in the Regulations and is using a separate requirement (not explained to the legislature during the debate) that the sanctioned jobseeker must also complete "6 consecutive weeks" of actively seeking work before the household can apply to have the claim reopened. This separate requirement enables the Department to continue the stoppage of benefits to the whole household once the 6-week breach period expires, without actually doing anything.

Now here is a really interesting development: just 3 weeks after I wrote the above comments, Jinsey's Minister for Social Security included a strangely out of place amendment to the Regulations in an otherwise uncontroversial proposition to uprate the value of benefit in respect of the child care component and the accommodation component for hostels. It was described as a "small change" but its effect was to introduce a new requirement for the jobseeker who has been issued with a third breach of a warning to complete 6 consecutive weeks of actively seeking work before his/her household can make a fresh claim for benefit. It is described on page 9 of the proposition (link below) in the following terms:

Currently, a third or subsequent breach of a warning lasts for 42 days. The amendment has the effect that a third or subsequent breach will last until whichever is the earlier of –
· the person in breach showing, to the satisfaction of a determining officer, that he has been actively seeking work for a continuous period of 42 days commencing on or after the day he or she was given notice of the breach; and
· the warning expiring.
The warning would expire 365 days after the day on which the person is last given notice that he or she is in breach of it.

So according to the proposition, the 'current' situation before the amendment was that the household's "breach period" (the period when no benefit is paid) lasted for 42 days (6 weeks), but the effect of the new amendment is to make that breach period conditional on a new requirement for the jobseeker to complete 6 consecutive weeks of actively seeking work first before the household can make a fresh claim, thereby extending the length of the 6 week breach period to a potential maximum of a year (see page 13 - "2. Regulation 5B amended"):

http://www.statesassembly.gov.je/AssemblyPropositions/2015/P.52-2015.pdf

This proposition was passed in a matter of minutes with no difficult questions asked and came into force on 30th June 2015. Therefore the 6 week actively seeking work requirement is now lawful.

However, as I made clear in my first post 3 months ago, Jinsey's equivalent of the DWP has been enforcing this 6 week actively seeking work requirement on jobseekers since October 2013 when the original proposition (P.101/2013) was passed and became law! :shocked:

If the 6 week ASW requirement only officially became part of the Regulations on 30th June 2015 then were the households of affected jobseekers treated unlawfully before this date in respect of any disallowance of benefit that was allowed to continue beyond the 6 week "breach period" stated in Regulation 5B(4) until it was amended with effect from 30th June 2015?

This Freedom of Information request response from the Jinsey government (link below) reveals that out of 107 household benefit claims on Jinsey that were closed up to the end of 2014 by the issue of a third breach of a warning to a jobseeker member of that household, only 24 were re-opened within 0-8 weeks. 11 claims were re-opened within 9-16 weeks and 10 claims took 17 weeks or longer. Astonishingly, 56 of those 107 claims still remained closed on 2nd March 2015 when the response was issued. This was the situation when the Regulations officially stated that the "breach period" (the official period of the disallowance of benefit to the household) was just 42 days (6 weeks). It proves that in reality, the majority of household claims were not being re-opened within the 'lawful' period of 6 weeks and this is because the failed jobseeker in these households were already being subjected to that separate 6 week actively seeking work requirement, which had the practical effect in most cases of extending the period of the household's disallowance of benefit (including housing subsidy for tenants and childrens' benefits) from 6 weeks to infinity (in theory, until the jobseeker in breach died or moved out of that household to live somewhere else):

http://www.gov.je/Government/Pages/StatesReports.aspx?ReportID=1356

Last month, just before the new amendment introducing the 6 week actively seeking work requirement was passed, Jinsey received another Freedom of Information request asking a series of questions about the 6 week ASW requirement, most notably whether Jinsey's legislators were made aware of it and its implications before they approved an ostensible 6 week breach period introduced in proposition P.101/2013 in October 2013. Jinsey's response to this request (link below) claims that the ASW requirement was not a separate one but "part of the legislation changes within P101/2013." This begs the obvious question as to why Jinsey felt the need to introduce a further amendment with effect from 30th June 2015 that explicitly mentioned the 6 week ASW requirement for the first time, if it was already part of the existing Regulations!

http://www.gov.je/Government/Pages/StatesReports.aspx?ReportID=1488

However, the response above fails to identify exactly where the ASW requirement appears in P.101/2013. The response also says that a briefing for legislators "was held on 1 October 2013, which explained the proposed actions." This briefing on 1 October 2013 was a private meeting for legislators only and there is no record of what was said or how many legislators bothered to attend it. What we do know is that when the proposition was publicly debated a week later, only the 6 week breach period was referred to and there was absolutely no reference made to that breach period having the capability of continuing to run for an indefinite period beyond 6 weeks dependent on the failed jobseeker completing a requirement of 6 consecutive weeks of actively seeking work (but the first FOI response above proves that in reality, most affected households were having their benefits withheld for periods far longer than the agreed 6 weeks, whether or not Jinsey's legislators understood that to be the intention at the time when they voted it into law).

Below is a copy of P.101/2013, which was passed without any amendments or official scrutiny by Jinsey's legislators on 8th October 2013. See if you can find where it makes it clear to the legislators that the 6 week breach period in respect of a third breach of a warning could continue to run beyond 6 weeks for an indefinite period until the jobseeker who has been issued with the third breach of a warning had been deemed to have completed a 6 week (42 days) period of actively seeking work. The only possible clause that I have found which could make this requirement legal is Regulation 5E (5) on page 24, which states:

(5) The fact that, under paragraph (4), no income support is paid to the original household does not affect –
(a) whether any member of the household is a person required to seek work and the consequences of the person not
complying with the requirements of Regulation 4;

http://www.statesassembly.gov.je/AssemblyPropositions/2013/P.101-2013.pdf

However, the (supposedly plain language) explanation of the above clause (on page 15) does not make its true meaning any clearer:

The fact that income support is not paid to the household during the period does not affect any determination, and the consequences of any determination, that any member of the household has given up remunerative work without good cause or not actively sought work when required to do so.

My interpretation of the above is that it allows either the jobseeker who has already been issued with a breach of a warning (third or otherwise) to be issued with further breach notices every 7 days for continuing to fail to actively seek work, as the Regulations allow. It would also, for example, allow a second failed jobseeker in the same household to be issued with their own breach notice for failing to seek work even though the household is already subject to a disallowance of benefit as a result of another jobseeker being issued with a third breach of a warning. The reference to having "given up remunerative work without good cause" is a separate type of sanction (see Regulation 5) which is not relevant for the purposes being discussed here.

However, the wording of Regulation 5E (5)(a) is totally different to a situation that would allow the stated 6 week breach period caused by a particular jobseeker being issued with a third breach of a warning to continue to run indefinitely beyond 6 weeks due to that same jobseeker failing to actively seek work. After all, it is known that Jinsey's version of the DWP has not actually been making a formal "determination" (which would then invoke appeal rights under the law) to extend the breach period beyond 6 weeks. In fact, once the 'legal' 6 week breach period ends, the Department takes absolutely no action at all. It does not write to the household saying that the failed jobseeker has failed to complete 6 weeks actively seeking work and therefore the household's benefits will continue to be withheld until he/she does.

In the cases I have heard about, the 'legal' 6 week breach period was not extended by means of continuing to issue the failed jobseeker with further breach notices every 7 days, all of which could be appealable. Instead, only one third breach of a warning notice was issued to the jobseeker and the effect of this one notice continued to have effect (well beyond the 'legal' 6 week breach period) until such time as the Department decided that the jobseeker had finally completed 6 consecutive weeks of actively seeking work, which, as the first Freedom of Information response reveals, usually takes many months to satisfy and could, in theory, (before the effect of the 30th June 2015 amendment) last for the entire natural life of the failed jobseeker without any means of appeal to a Tribunal.

The fact that the 6 week actively seeking work requirement is separate to that of the 6-week "breach period" is proven by the fact that after the initial 6 week breach period has ended, the Department continues to require the failed jobseeker to satisfy the 6 week ASW requirement if he/she has not already done so. Therefore, if the failed jobseeker does not even attempt to start actively seeking work until the first 6 weeks has just expired, the earliest that his/her household could possibly hope to start to make a fresh claim for benefit (presuming he/she continues to reside in that same household) would be 12 weeks (6 weeks 'legal' breach period plus another minimum period of 6 weeks to undertake and complete the 'illegal' - until 30th June 2015 - actively seeking work requirement). However, this does not mean that the household could look forward to benefit payments recommencing immediately after the jobseeker satisfies the ASW requirement, because there is an additional period of at least a month which the Department takes to administrate the re-opening of the household's claim. So in this particular example, the minimum period that the household would be without benefits would be 6 weeks ('legal' breach period) + 6 weeks (period when the failed jobseeker completes the ASW requirement) plus at least 4 weeks (claim re-opening process) = 16 weeks. By that time, most households would have been evicted from their accommodation for non-payment of rent unless they could obtain some sort of exceptional payment at the discretion of the Minister (and any refusal of an application for an exceptional payment is not appealable).

Now hands up who believes that Jinsey's treatment of jobseekers and their family members complies with the European Convention on Human Rights?

[Rights Seeker]

Re: Jobseeker Sanction that stops benefits to all household members inc. housing bene

Two years after I first revealed here that some sanctioned jobseekers on the island of 'Jinsey' (not its real name) were being prevented from re-applying for Income Support benefit (equivalent to the UK's Universal Credit) because they were being subjected to an actively seeking working condition which wasn't added to the Regulations until 30th June 2015 (and was therefore unlawful), here is a rather disturbing update which casts serious questions over the independence of Jinsey's judiciary and whether its legislature is fit to have law-making powers.

In November 2015, a jobseeker who had unsuccessfully appealed 4 sanctions to Jinsey's Tribunal lodged an appeal on points of law to Jinsey's Royal Court to try to get the decisions overturned (in effect, the equivalent of appealing a decision of a First Tier Tribunal to the Upper Tribunal in the UK). Crucially, four fifths of that jobseeker's lost benefit entitlement related not to the actual periods of time which, according to the Regulations, the Department was legally authorised to withhold his benefit, but instead to the periods of time after those official stated sanction periods had ended, but when the Department used that actively seeking work condition to prevent him from re-applying for Income Support, which he claimed was unlawful.

However, it was generally accepted by both the jobseeker and the government of Jinsey that he had no statutory right of appeal relating to the Department's refusal to allow him to re-apply for benefit (the unlawful bit) because this happened after the decision to sanction him, which he was appealing. In enforcing the unlawful condition on him, which cost him thousands of pounds in lost benefit because it included lost entitlement to housing subsidy in respect of his rent, the Department had been very careful not to issue him with any formal 'determination' letter, which would then have enabled him to lodge an appeal on the Department's refusal to allow him to re-apply for Income Support. He nevertheless presented multiple items of evidence to the Court which showed that various Department officers had clearly stated in writing and in e-mails over a period of a year that he would not be allowed to re-apply for benefit until he had satisfied this actively seeking work condition despite that condition having no source in the legislation before 30th June 2015.

The jobseeker was not represented by legal aid during the Royal Court proceedings, which involved complex technical arguments between the judge and the Jinsey Government side over whether the case should proceed as an appeal on points of law or as an application for judicial review. It was eventually decided to hear the case as an appeal on points of law against the Tribunal decisions, even though, as I have already stated, only a fifth of the jobseeker's huge losses were at stake from the official Tribunal decisions that he was legally able to appeal.

Jinsey's highest-ranking judge, the Bailiff, heard the appeal on points on law, despite the jobseeker's strong reservations that he did not have the appearance of being independent and impartial. The case raised important questions relating to the interpretation of the Income Support Law 2007, but the Bailiff had held the position of Attorney General at the time this legislation was debated and adopted and it was therefore his job to provide legal advice to the legislature on anything related to that law. The Bailiff is also the traditional civic head of the island, opening public festivals, unveiling war memorials, ordering that flags on buildings be raised or lowered on special days, making speeches that would elsewhere be made by an elected politician, e.g. encouraging equality and acceptance of minority groups and condoning terrorist attacks and organising and speaking at vigils held for terrorist attack victims. These are things that senior judges in most other countries simply don't do.

It is without doubt that had the Bailiff openly ruled in favour of any of the jobseeker's main arguments about illegality and incompatibility with his ECHR rights, the island's government and judiciary would have faced international embarrassment. Furthermore, it was without doubt that the Minister and the Department's most senior civil servants had knowingly and deliberately authorised the unlawful condition on this jobseeker and potentially more than a hundred others. If the Bailiff found in his favour on this point, presumably all those people would have come under serious pressure to resign.

The Bailiff therefore relegated the issue of the Department's apparently unlawful behaviour to a minor procedural matter which he dealt with right at the end of a massive 70+ page judgment. He ruled against the jobseeker on all issues. However, he was nevertheless forced to admit that the jobseeker was "right in what he says" (that the Department's officers had "no basis" to enforce the condition on him) but he ruled that "nothing arises" from that complaint because the jobseeker had not allegedly not raised the matter during the Tribunal appeal hearings which he was seeking to get overturned on points of law. He therefore awarded the jobseeker no damages for the five figure sum of lost benefit entitlement due to the - now acknowledged - unlawful actions of the Department. Read pages 155 and 156 of the judgment here (you will have to scroll down for ages as the crucial stuff was deliberately buried at the end):

https://www.jerseylaw.je/judgments/unreported/Pages/[2016]JRC204.aspx

The jobseeker then tried to appeal the Bailiff's decision not to awarded him any damages as a result of the acknowledged unlawful policy enforced on him. He intended to present fresh evidence not considered by the Bailiff which showed that when the jobseeker eventually succeeded in getting his benefits restored, he tried to appeal that decision and to use it to raise the issue of the unlawful condition by means of disputing how far back the Department should have paid him. However, the Department, realising what he was trying to do, had refused to complete a mandatory reconsideration for 8 months, by which time it was too late for the jobseeker to lodge an appeal to the Tribunal because he was already close to lodging his Royal Court claim. This week the Jinsey Court of Appeal (of which that same Bailiff holds the position of President) heard the case, but decided on a preliminary issue that the jobseeker had no right of appeal from the Bailiff's decision as the wording of the statute, which was not clear, implied that the Royal Court's decision was "final". The Court of Appeal therefore did not even comment on the alleged injustices that the jobseeker tried to raise during the very short hearing. The judgment is here (the jobseeker's main comments and arguments about the unlawful actions of the Department are not even mentioned, apart from a very nondescript reference in paragraph 6(a):

https://www.jerseylaw.je/judgments/unreported/Pages/[2017]JCA074.aspx

Jinsey's government have therefore got away scott free with their deliberately planned unlawful treatment of jobseekers. Two years ago, the jobseeker who took this case to court had informed several legislators of what the Department was up to, but they deliberately said nothing and asked no questions. It is believed that a large number of Jinsey's politicians could not have failed to learn of what was going on but they have all maintained their silence to this day. None of the local press or media attended the Court hearings or reported the details of these judgments.

It is a serious cover-up by the most senior judicial and political personalities on a well-known British crown dependency nestled between England and France. Will anyone bother to investigate it? Maybe this chap should be taking an interest...

https://www.youtube.com/watch?v=h9iyPEJ4ELw

[Kati]

Re: Jobseeker Sanction that stops benefits to all household members inc. housing bene

I'm not sure what to say/suggest ... but well done for bringing this to everyone's attention! :0