Ministers forced into sickness benefit u-turn over ‘sanction fodder’ measure

Ministers have been forced to scrap a drastic change to benefit rules that meant seriously ill claimants found unfairly “fit for work” were no longer allowed to take an extended period of sickness absence, even if they had a sicknote from their GP.

Under the new rules – introduced through a Department for Work and Pensions (DWP) memo to jobcentre staff in November, and without notifying parliament – claimants forced to claim jobseeker’s allowance (JSA) faced having their benefits sanctioned if they were too ill to look for work.

They were previously entitled to up to 13 weeks of an “extended period of sickness” (EPS) if their doctor felt they were too sick to work or look for work, despite being found fit for work by DWP.

This meant that those appealing against being ineligible for employment and support allowance (ESA) – with the latest figures showing that more than two-thirds of ESA appeals are successful at tribunal – had a way to continue claiming benefits to pay for food, energy bills and other essentials if they were too ill to look for work and were waiting for their DWP mandatory reconsideration*.

But the government quietly removed that option by issuing a memo on 7 November last year.

It stated that EPS was not intended for claimants who “claim JSA when found fit for work, following a Work Capability Assessment and potentially may be appealing that decision”.  

The memo meant that JSA claimants who had never tried to claim ESA could be able to use a sick note successfully, but someone who had failed with an ESA claim would not be given time to recover from the same level of illness.

The new rules meant that someone kicked off ESA after being found fit for work could only submit a sick note successfully if their GP was willing to state that their condition had worsened significantly or that they had a new condition.

DWP admitted last night (Thursday) that the memo had been revised earlier this month to show that JSA claimants previously found fit for work can claim an EPS.

Before that admission, one welfare rights adviser, who asked to remain anonymous, said the “new secret ruling” was “a new welfare scandal” waiting to be exposed and had “already caused a great deal of unnecessary suffering amongst entirely innocent people”.

He later added: “Life on benefits is hard enough without claimants being battered with pointless, secret rules.”

Sarah Glynn, an organiser with the Scottish Unemployed Workers’ Network, said the new rules were “absolutely appalling” and that ministers had been guilty of a “deliberate misinterpretation of the law”.

Also speaking to Disability News Service before the DWP admission that it had been forced to revise the memo, she said: “It is going to make people ill and it will probably kill people. It’s really worrying.

“It is going to hit more and more people because bumping people off ESA is the major line of attack at the moment.”

And she said it would make more sick people “sanction fodder”.

Barbara Donegan, a welfare rights expert with the Child Poverty Action Group in Scotland, welcomed the DWP decision to scrap the new rules.

She said the charity had started to receive calls on its helpline in November from people who had been denied permission to claim an EPS after being found fit for work through the WCA process.

But she said that jobseeker’s allowance regulations (section 55ZA) made it clear that such people should be able to claim an EPS if they have a sicknote from their GP.

She said: “We are getting calls from people being told different things at different jobcentres.

“We have read the regulations and we are absolutely clear what they mean and they do not exclude anybody in that situation from claiming an EPS.”

A DWP spokesman said yesterday (Wednesday): “The memo you highlight was issued in November, which excluded claimants who had been found fit for work from taking an extended period of sickness (EPS). This has since been revised.

“Questions were raised about the policy internally, which led officials to revisit and revise the guidance on 1 March.”

He added: “People found fit for work are able to take an EPS once JSA has been awarded and they have presented an appropriate sick note – they do not need to have a new condition, or for their condition to have worsened.

“The regulations allow all JSA claimants, including claimants who have previously claimed ESA, to be considered for an extended period of sickness, if eligible based on their individual circumstances and health condition.”

*If an MR confirms the original decision and a claimant wishes to appeal to tribunal, they can begin to claim ESA again until they receive the appeal decision