Income Support (Miscellaneous Provisions) (Jersey) Regulations 201-
1. Executive summary
Income Support is an in-work benefit, meaning that any adult in receipt of the benefit is required to be in full-time paid work or be exempt for a number of reasons. The requirement to seek and take up full-time work is backed up by financial penalties for those who do not comply. In a time of increased unemployment, the proposed regulations are designed to strengthen the powers available to the Minister to address those Income Support claimants who are unwilling to attempt to support themselves through work.
The regulations create a system where people who repeatedly breach the conditions of their jobseeking agreement will first be warned, and if they fail to heed this warning they will face increasingly longer cuts to their benefit, followed by the eventual removal of benefit altogether. Those who are genuinely unable to find work will not be penalised, but repeat offenders will be given the clear message that failing to look for work will end their entitlement to Income Support. Penalties are also introduced for those people who leave paid work without a good reason and wish to claim Income Support.
The proposed regulations also contain a minor amendment that removes a household’s entitlement to a housing component in situations where all of its adult members are outside Jersey for longer than 4 weeks, or for similar periods where all adult members are in prison or in hospital.
In addition, the proposed regulations clarify the matters which must be taken into account when determining any medical component payable in respect of a person. They also propose a slight revision to clarify the rules for assessment of a person who suffers from epileptic seizures.
2. Introduction
When the Income Support benefit was introduced at the beginning of 2008, Jersey’s unemployment levels were some of the lowest in Europe. Previous low-income benefits had no legal requirement for people to seek work, and although unemployment had not historically been a major issue in Jersey, one of the new principles introduced as part of the Income Support scheme was the inclusion of clear and consistent conditions to require people to support themselves through work, whenever possible.
In subsequent years, Jersey’s economy has been adversely affected by the global economic downturn and further by the loss of Low Value Consignment Relief (LVCR). Current levels of unemployment, whilst significantly lower than in many other communities, are at a historically high level for the Island.
One of the key aims of the Income Support benefit is to assist anybody who can work into full-time employment, to encourage them towards self-sufficiency and ultimately out of the benefit system. Many people receiving Income Support will find work on their own, and those who do require assistance are extensively supported by the Department’s Back To Work scheme. The States decision to provide dedicated funding to this scheme means that Islanders who require assistance finding work can be helped by personal advisors and a range of courses, classes and work-placement opportunities tailored to the specific needs of different groups of unemployed people.
However, it is an inevitable fact of any employment-focused benefit system that there will always be a minority of people who will attempt to avoid their legal requirement to find work. The rise in local unemployment has brought this issue into sharp focus, and it has become apparent that the Department’s current powers to sanction those people who don’t look for work have proved insufficient to motivate this small minority into doing all they can to seek and take up employment. It is essential to create a balance between the incentives offered to take up work and the threat of financial penalties for those who do not uphold their end of the bargain. It is neither fair nor acceptable that any person who is able to work should continue to receive tax-funded benefits without making efforts to support themselves through paid employment.
3. Income Support current powers
Income Support is an in-work benefit, meaning that any adult in receipt of the benefit is required to be in full-time paid work or be exempt for a number of reasons.
People who are not required to look for work include:
- anyone over the age of 65;
- people with the main responsibility for the care of a child aged under 5;
- people who are unable to work due to long-term illness or disability; and
- young adults who are in full-time education.
Adults who do not fall into one of these categories are required to find full-time work, or part-time work in certain circumstances. Those people who are neither in full-time work nor exempt from seeking work are required to seek work in order to qualify for the full Income Support benefit.
International evidence suggests that the requirement to look for work must be backed up by a clear, rapid response in cases where people are unwilling to comply. A review of the interaction between Income Support and employment commissioned from the University of Nottingham in 2010 observed that:
“an effective intensive job assistance programme needs to be supported by a monitoring and sanctions regime. Jersey’s current sanctions regime is complex and imposition of a sanction can take a relatively long period of time. Sanctions ‘work’, that is, encourage job search behaviour, through the deterrence effect”[i].
In response to the review, changes were made to the original process in order to increase the speed at which sanctions could be applied to failed jobseekers, and also to increase the initial level of sanction. These changes created the current sanctions regime which were approved by the States as P.107/2011, amending the Income Support (Jersey) Regulations 2007 and P.109/2011, amending the Income Support (Special Payments) (Jersey) Regulations 2007.
The current sanctions are based on a two-stage reduction in the basic adult component of the failed jobseeker. It has become apparent that these sanctions still take too long to come into effect and fail to address the issue of repeat offenders. They do not possess the deterrent effect that is necessary to address the minority of jobseekers who consistently fail to meet the requirements to look for work.
Current process for sanctioning a non-compliant jobseeker
The following process illustrates the way that sanctions presently operate for failed jobseekers:
- Income Support recipient fails jobseeking requirements and is given a formal written warning
- The warning requires the jobseeker to complete job seeking activities in the following 7 days.
- If this is not done, the adult component of the failed jobseeker is reduced by 50% for one week
- If the failed jobseeker continues to fail for a further week their adult component is reduced to zero
- Once the failed jobseeker has re-started jobseeking activities and undertaken them regularly for two weeks, their benefit returns to the original level
- Should the jobseeker fail again in the future, the process starts again at step 1.
This process does not provide any additional sanctions in respect of the small minority of jobseekers who repeatedly fail to engage with jobseeking requirements. It is also open to abuse by a few individuals who comply with their jobseeking requirements for long enough to return to full-rate benefit, or may only comply when they are a few days away from a financial penalty.
Jobseeking must be a consistent process for as long as it takes to secure paid employment, particularly in times where there is more competition for available work. The Department’s Back To Work scheme has been developed into a comprehensive programme offering assistance and incentives are to find work, but this assistance must be backed up by real and responsive financial penalties for those people who refuse to engage.
4. Proposed sanctions
The Minister is confident that robust sanctions, coupled with the Department’s existing support to help people prepare for work, is the most appropriate way to create a clear deterrent and ensure that unemployment in Jersey is never perceived as a lifestyle choice. The University of Nottingham review states that “there is evidence that compulsory job search requirements backed with sanctions for non-compliance are highly effective in promoting moves into employment”.
In contrast to the cycle of compliance and non-compliance described above, the overarching principle of the proposed sanction powers is that people who repeatedly fail to seek work, or to engage with training or work placements, should receive a warning that stays ‘in force’ to be reactivated if they fail to comply at a point in the future. Those who fail for the first time will merely be warned, creating no immediate penalty, but that warning will remain in force for a year. Any subsequent failures (termed ‘breaches’) will trigger the loss of the adult component for two weeks, then four weeks, and finally the removal of the whole benefit claim for six weeks if people repeatedly fail to comply. If a person demonstrates they are actively seeking work, these financial penalties will in time fall away, but the warning will remain in force to be reactivated if another breach is recorded during the following 12 months.
It must be stressed that few jobseekers are expected to ever reach the higher levels of these sanctions. The proposals are proportionate and the majority of Income Support recipients will never see any changes to their benefit. The new sanctions will be communicated extensively to clients and employers, and it is expected that those who might contemplate avoiding their jobseeking requirements will see the increased sanctions as a strong deterrent.
Leaving paid work
There are currently no sanctions in place to prevent a person from leaving work voluntarily to claim Income Support, or for people who claim Income Support after being dismissed from work due to their own conduct. Equally, there is no penalty facing people already in receipt of Income Support who give up or are dismissed from paid employment. When compared to the expectations that would be placed on any employed person, it is clear that there is an imbalance which must be addressed.
Feedback from local employers has identified a small number of cases in which Income Support job-seekers have taken up a job for only a very short period before leaving, thereby creating additional expense for the employer and denying someone else the prospect of a job. The negative impression given to an employer who offers to provide a work opportunity to a local jobseeker, only to be let down a few days later, can be significant and may harm the chances for future jobseekers of finding work with the same employer. In other cases, individuals have voluntarily given up existing employment and sought to claim Income Support benefit.
An individual who leaves work without any reasonable excuse will not be able to claim the adult component of income support for a 13 week period. This period is extended if the individual fails to undertake jobseeking activities during that time, and applies both to people on Income Support and people who claim Income Support after they have left their job.
The sanctions proposed for leaving work will be underpinned by specific guidance to enable staff to decide whether a person had good cause for leaving employment. There are a number of situations that would fall under the category of leaving work and it will be important to distinguish between people who leave work or are dismissed due to their own poor conduct and those who are made redundant through no fault of their own. Those people who are made redundant or who cease work for some other good reason will not lose entitlement to benefit, whereas people who have no reasonable excuse for being dismissed or giving up work will face this sanction.
The date on which the individual left work may have occurred before the individual claimed Income Support. In these cases, the 13 week period in which they are required to seek work (before becoming eligible to receive the adult component of Income Support) can start to run before the date they approach the Department to claim benefit. This would only be possible when the individual has clear evidence to show that the activities undertaken during that time fully complied with all the actively seeking work activities specified in the legislation.
This change will be extensively communicated to the general public and to all employers and local employee organizations, to ensure that employees are fully aware of the consequences of leaving work.
Progression of sanctions
This table summarises the effect of the various levels of sanction.
Fail to actively seek work | Written Notice served | Sanction applied | Length of warning |
First occasion | Written warning | None | Remains in place for 1 year from date of receipt |
Second occasion | 1st breach of warning | Adult component £92.12* removed for 2 weeks | 1 year from receipt of 1st breach letter |
Third occasion | 2nd breach of warning | Adult component £92.12* removed for 4 weeks | 1 year from receipt of 2nd breach letter |
Fourth occasion | 3rd breach of warning | IS claim closed / cannot make new claim for IS for 6 weeks | 1 year from receipt of 3rd breach letter |
Subsequent occasions | Subsequent breach | IS claim closed / cannot make new claim for IS 6 weeks | 1 year from receipt of subsequent breach letter |
Leaving work | Leaving work letter | Adult component £92.12* not available for 13 weeks | |
* Note: For a single parent, the standard adult component is £132.51
Decision making
There will always be situations that present good reasons why a person is temporarily unable to comply with their jobseeking activities, perhaps due to illness. Likewise, there will be some situations where it is appropriate for an individual to leave paid employment. For example, a person who is physically unable to continue with a specific job will not face sanctions for giving up that job. There may also be personal or family circumstances that will legitimately prevent a person from seeking work, and these will be considered by the Department when deciding whether the person has failed to undertake jobseeking activities, or whether the actions that led to the individual leaving paid employment justify that decision. Robust procedures will be in place to ensure that the decision making process is fair and consistent.
Definition of jobseeking tasks
In addition to the strengthened sanctions, the new Regulations provide a clearer definition of the activities a person will be required to undertake in order to be considered actively seeking work. The current Income Support regulations include requirements that a person:
a) Is willing and available to take up work
b) Takes all reasonable steps (including any appropriate training or work experience) to obtain suitable work
c) Does not unreasonably turn down any offer of suitable work
d) Attends jobseeker appointments
The revised regulations include all the existing conditions and also now explicitly require jobseekers to actively take part in training and work placement activities. This will allow the Department to consider sanctions in respect of individuals who attend training or work experience but then fail to participate, or who engage in disruptive behaviour. It is also made clear that jobseekers must be present in Jersey at all times unless they have good cause to be absent, ensuring that people will not be able to leave the Island to take holidays rather than seek work.
Individuals with barriers to employment
The Department recognises that some individuals have specific or complex barriers to employment that make it more difficult for them to find work or sometimes to participate in training and work readiness activities. Individuals who fall into this category are commonly identified as soon as they become jobseekers, and are assigned to a dedicated team within the Department trained to assist individuals with barriers to employment. The operation of the new sanction regime will include safeguards to protect vulnerable clients and ensure that sanctions are only imposed in appropriate cases
People in detention
If a person is unable to comply with jobseeking activities because they are detained in custody, the period of compliance with jobseeking will pause until they are released. This is designed to ensure that a failed jobseeker cannot return to full benefit entitlement simply by remaining in prison. However, all jobseeking sanctions fall away after one year in custody. Individuals do not receive any Income Support if they are in prison for one week or longer.
5. Impact of sanctions
The intention is that firmer, clearer sanctions will act as a deterrent, and it is expected that few people will ever experience the complete withdrawal of benefit. As part of a review of its own sanction regime, the UK Department of Work and Pensions (DWP) commissioned research into the effectiveness of sanctions. The report, “A review of the JSA sanctions regime: Summary research findings,” states at its conclusion that “In general terms, the research has indicated that the sanctions regime is broadly effective”[ii]. It says “Sanctions can be seen to influence the behaviour of some customers and therefore have a deterrent effect. The extent to which the regime has a deterrent effect can partly be measured by the number of repeat sanctions; data from the Sanctions Evaluation Research indicates that the large majority of customers (73 per cent) have only been sanctioned once, while smaller proportions have been sanctioned twice (16 percent) or more than twice (10 per cent). Furthermore, most customers (around 7 in 10) thought that the general principle of sanctions was fair. More specifically, even among those actually sanctioned, around two-fifths thought that their own sanction was fair.”[iii]
It should be noted that the UK sanction regime does not operate entirely comparably to Jersey, in that the sanction can only be applied to the Job Seeker’s Allowance (JSA) benefit, and not to housing benefit, child support, tax credit or disability payments. Conversely, higher level sanctions in the UK (for example for leaving a job voluntarily) lead to claimants losing all of their JSA for a fixed period of 13 weeks for a first failure, 26 weeks for a second failure and 156 weeks for a third and subsequent failure (within a 52 week period of their last failure).
With the imposition of the 3rd breach under these proposals, there is a total withdrawal of Income Support benefit from the household. The Department is mindful that there may be circumstances where a person with a family to support nevertheless decides to ignore the series of formal warnings that lead to a complete withdrawal of benefit. In these situations the Minister will consider creating an exceptional payment (under ministerial discretion) to support only the other members of the household. However, such support would be dependent on all the circumstances of the household at that time. At the time at which the 3rd breach is imposed, the Department will write to the claimant (and the claimant’s partner where applicable) explaining the removal of Income Support and the steps that need to be taken to re-establish the claim. It should be emphasised that individuals who may be sanctioned will have previously received numerous warnings (verbally and in writing) to inform them that continued non-compliance will have an effect on their entitlement to benefit.
European Convention on Human Rights
The proposed regulations have been subject to a comprehensive Human Rights audit and are considered to be compliant with the European Convention on Human Rights.
6. Miscellaneous changes – housing and medical components
Housing component
The proposed regulations also contain a minor amendment that removes a household’s entitlement to a housing component in situations where all of its adult members are outside Jersey for longer than 4 weeks, and for similar periods where all adult members are in custody, detention or provided with board and lodging at public expense (e.g. in hospital).
At present, there is no legal restriction on the members of an Income Support household being away from their domestic property for extended periods, losing entitlement to other IS components, yet continuing to receive the accommodation component as long as they remain as the owner or the tenant of the property in question. This was never the intention, and the proposed minor amendment to the Regulations will prevent this from occurring in future.
The Department is aware that there will be genuine cases in which accommodation components should be maintained for more than four weeks whilst adult members of the household are either in prison, in hospital or out of the Island. These cases will be dealt with using exceptional payments under article 8(2) of the main Law.
Personal care element – clarification to prevent ‘double scoring’
Income Support includes a specific component to provide assistance to people who have additional needs due to long-term illnesses or disabilities. This impairment component includes a personal care element designed to help people who have personal care needs with general medical costs and the cost of assistance with daily activities such as washing, dressing and cooking.
The rate of the personal care element payable to a member of the household is calculated by assessing their functional ability across a series of 20 activities. These activities are broadly divided into physical and sensory activities (1-11) and mental health activities (13-18), with activity 12 relating to the frequency of epileptic seizures and an additional 2 activities that are applied only to children. A key principle of the assessment is that it should consider physical or sensory disability separately to those statements that deal with mental and cognitive disability, including the effects of an organic brain disease, and vice versa.
For example, any score awarded through statements covering activities 1-11 must relate to physical or sensory impairment (for example, caused by osteoarthritis) or disablement (for example, traumatic loss of a leg). Therefore, a person with severe anxiety who is only able to sit in a chair for 10 minutes before moving is not considered under the sitting activity, as the difficulty with sitting is due to a mental health problem. Functional restrictions caused by anxiety are assessed under the mental health section (activities 13 – 18).
The Medical Appeal Tribunal, which is responsible for considering appeals made under this area of the Income Support Law, has requested that this differentiation should be made more explicit. Regulation 5 inserts additional wording into Schedule 2 to clarify the distinction between the different statements.
It should of course be noted that a person could legitimately suffer from more than one ailment that would allow them to score across all of the questions in respect of different ailments, or alternatively from an ailment such as a stroke that would have distinct cognitive as well as physical effects. These situations would not be considered to be ‘double scoring’ and will continue to be assessed across all appropriate activities.
Medical (Impairment) component - epilepsy
A further minor amendment is required to clarify the meaning of the activity that deals with epileptic seizures. It has become apparent that medical situations may exist in which an individual may suffer from epileptic seizures at night whilst asleep in bed. The individual has no useful warning of this due to being asleep but also no dangerous post-seizure (“post-ictal”) behaviour as they remains asleep during the fit and afterwards. It is only in the morning that the individual would be aware that a fit has occurred. This individual would have no personal care needs due to this medical condition, however under the currently wording of activity 12 they would score sufficient points to receive a personal care award.
The proposed regulations therefore revise the rules for assessment of a person who suffers epileptic seizures. A person will not fall within the revised rule if his or her seizures are suffered whilst he or she is asleep and are not followed by any post-seizure dangerous behaviour.
7. Summary of Proposed Regulations
Regulation 1
References to existing regulations are defined
Regulation 2(1) and 2(2)
Terms used in the new regulations are defined.
In particular the concept of a "person required to seek work" is identified as an income support claimant who is required to seek full-time or part-time work under the income support law.
Regulation 2(3)
The existing regulations 4 and 5 are replaced by new regulations 4,5,5A,5B,5C,5D,5E,5F.
The existing regulations 4 and 5 explain how a jobseeker is required to actively seek work and what happens if the jobseeker fails to actively seeking work for income support purposes.
New regulation 4
This regulation includes all of the existing tests of actively seeking work and includes extra conditions.
New regulation 5
This regulation introduces sanctions in respect of an individual who leaves paid work without a good reason and wishes to claim income support (either as an existing claimant or by submitting a new claim). A 13 week sanction period is created during which time the individual cannot receive the adult component of income support
New Regulation 5 A
This regulation introduces a warning that will stay in force for at least a year. The warning is served on the jobseeker if the jobseeker fails to satisfy all the actively seeking work requirements set out in the new Regulation 4. The warning is extended if the jobseeker fails again to satisfy the actively seeking work requirements during that year.
New regulation 5B
This regulation sets up sanctions which increase in severity each time there is a further breach of jobseeking requirements. If a warning is already in force, the next time the jobseeker fails to actively seek work, the regulation creates the first breach and the jobseeker loses their adult component for 2 weeks. If there is another breach, the adult component is removed for four weeks. Further breaches after this carries a penalty of six weeks and the full income support benefit is removed during this time. There must be a gap of at least seven days between each breach. The jobseeker is sent a letter for each warning and each breach and can ask for any decision to be reviewed. As with other income support decisions there is also an appeal to an independent tribunal.
New regulation 5C
This regulation explains how warnings and sanction periods can be extended. If the jobseeker has left paid work and then fails to seek work during the 13 week sanction period, the 13 weeks is extended. If the jobseeker is in prison, any remaining warning period or sanction is suspended during the time in prison and then carries on when the person leaves prison. If the jobseeker reaches the age of 65 or remains in prison for more than one year, the warning and any outstanding sanction is cancelled.
New regulations 5D and 5E
These two regulations identify the financial penalty for each type of breach. For the first breach (two weeks) and the second breach (four weeks) the jobseeker loses their basic component. For the third breach, the whole income support claim is removed for six weeks. During the six weeks the household cannot make a claim for a special payment. If the jobseeker joins a new household during the six weeks, the jobseeker will not receive a basic component, but the new household does not lose the remainder of their claim.
New regulation 5F
This Regulation explains that a breach that is already in force is not cancelled if a further breach is identified – each breach continues to run.
Regulation 3
This regulation removes Regulation 5 of the Special Payments regulation, which was used to provide payments during sanction periods under the existing regulations.
Regulation 4
This regulation removes the housing component from an income support household if all adult members of the household are out of the island, in prison or in hospital for more than four weeks.
Regulation 5
This regulation makes some minor changes to the details of the impairment component
Regulation 6
If approved, these regulations will come into effect seven days after they are approved.
8. Financial and manpower implications
These regulations have limited financial implications. The intention of the strengthened sanctions is to create the appropriate benefit structure within which jobseekers are motivated to find and remain in paid employment. This should result in a decrease in benefit costs as the small number of individuals who are currently seeking to avoid their jobseeker responsibilities, will in future undertake these responsibilities more diligently and will move into paid employment. If they fail to do this, benefit costs will be reduced as the sanctions are applied.
A substantial number of departmental staff currently support jobseekers through the Back to Work teams. No additional manpower resources are required to administer the revised sanction regime.
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