Use this template to challenge the DWP's refusal to amend your client's claimant commitment to reduce the number of hours of expected work search and availability or work-related activity to what is reasonable in light of their physical or mental health condition.
These letters are for advisers, not members of the public.
If you don't have an adviser, you may be able to find one at advicelocal.uk
You can use this template if all of the following apply:
These letters are for advisers in England and Wales. Please be aware that the pre-action protocol doesn't apply in Scotland. See our document explaining some of the changes needed to use them in Scotland.
The main legal arguments in this template are:
Regulation 97(2) Universal Credit Regulations 2013 (UC Regs) provides that the work search and work availability requirements of a claimant with a physical or mental impairment must be limited to their ‘expected hours’ under regulation 88.
Regulation 88 UC Regs allows for the reduction of expected work hours for claimants with physical or mental impairments to whatever number the Secretary of State considers "reasonable in light of the impairment" - which can potentially be zero hours.
Under Regulation 97(6) UC Regs where the impairment has a substantial effect on a claimant’s ability to carry out work of a particular nature, or in particular locations, the claimant must not be required to carry out work of a particular nature, or in particular locations.
DWP's operational guidance 'Availability for work and expected hours of work-related activity: Guidance’ (V12) states that claimants with physical or mental impairments whose expected hours are limited "“will not have to show that they have reasonable prospects of finding work” and states that while evidence is generally expected, it is not always required in certain circumstances (e.g., when a claimant is awaiting medical diagnosis).
This template challenges DWP‘s failure to follow the law and DWP guidance and/or fettering the discretion available to them, resulting in the imposition of unlawful work-related requirements and unlawful sanctions.
This template argues failure to make adjustments for your client’s physical or mental impairment constitutes indirect discrimination contrary to the Equality Act 2010.
We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates
Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.
This letter can be used before or after a client has been sanctioned as a result of inappropriate UC conditionality. If they have not been sanctioned, references to sanctions will need to be removed from your letter.
Your client should 'ask for a second opinion and ask for their claimant commitment to be reviewed' via their UC journal. The DWP stated in correspondence to CPAG (05.05.22):
"the procedure which applies when a claimant does not agree with work-related requirements imposed on them in their claimant commitment is to request a second opinion and ask for their claimant commitment to be reviewed. If the second opinion agrees that the requirements are unreasonable the claimant will be offered a new claimant commitment and asked to accept it. If the second opinion agrees that the original requirements are reasonable, the claimant can accept the commitment or refuse to accept it. In the latter case, the award would be terminated, and the claimant notified of that decision and their rights to a mandatory reconsideration and appeal."
DWP Guidance 'Claimant commitment not accepted (V7)' suggests that
"If the second opinion is requested within the cooling-off period, the cooling-off period ends."
However there is no obvious legal basis for this.
a) claimants are told they have the right to a second opinion, and
b) claimant commitments are changed following second opinions in practice.
Where a claimant has not accepted a revised claimant commitment (ie, not in respect of a new claim) the consequence of failure to accept is a sanction, as confirmed by the DWP's representative in FO v SSWP (UC) [2022] UKUT 56 (AAC) at para 14. The ADM limits this to where a claimant has not attended a commitments meeting, and does not include that the seeking of a second opinion will end the cooling-off period:
J1036...
"If, and only if, the claimant attends the interview as required but refuses or fails to accept the new commitments can the decision maker (DM) consider terminating the award of UC after a cooling off period."
c) claimants are advised that seeking a second opinion will end their cooling off period and that if the second opinion upholds the first opinion, if they do not accept the new commitments, their award will be terminated, and
d) whether seeking a second opinion within the ‘cooling-off period’ in practice ends the ‘cooling -off period’
If your client is waiting for a Work Capability Assessment and being called into the Jobcentre in person every week and this is inappropriate due to disability, DWP also stated (05.05.22):
"I can confirm that claimants awaiting a work capability assessment should have their claimant commitment tailored to their individual needs including the frequency, length and method of interventions."
As above, ask for second opinion and ask for reasonable adjustments if it is inappropriate to require your client to attend JC+ in person due to their disability.
Please let CPAG know how DWP respond by emailing [email protected].
Help for advisers using the judicial review pre-action protocol to resolve welfare benefit problems.
What judicial review is and how it can help
If you've sent a judicial review pre-action protocol letter but it hasn't produced the desired result, and your client wants to take it further, you'll need to refer your client to a solicitor.
