5 day “good cause” deadline

Im dealing with a case of a client who is a refugee with limited English - currently has a number of sanctions due to not attending JSA work programme appointments. His support worker had helped him argue good cause (did not understand what he should have been doing/going) - but this was submitted after the 5 day deadline. A few questions;

1. Has anyone sucesfully argued “good cause” for the delay in not submitting within the 5 day deadline?
2. Have the DWP an obligation to consider “good cause” if it is not submitted by the client within 5 days? In other words does (2) and (3) only follow (1) from the JSA (ES & ES) Regs, or has anyone argued that “good cause”, circs of case etc should have been considered by the DM, even if the cleint did not submitted anything within the time?

The regs

7.—(1) A claimant (“C”) who fails to participate in the Scheme must show good cause for that failure within 5 working days of the date on which the Secretary of State notifies C of the failure.

(3) In deciding whether C has shown good cause for the failure, the Secretary of State must take account of all the circumstances of the case, including in particular C’s physical or mental health or condition.

I’ve not seen any commentary on these regs and not sure if there is any caselaw yet. All thoughst welcome - even if only to say he’s got no chance as its after 5 days!

(and yes - I’ve checked - more than 5 days had passed before the decision was made)

Well it is possible to appeal or request a revision of the decision to sanction (within one month of the decision) on the grounds that he did have good cause.  The problem is that he has to endure sanction whilst appealing.  He will only get hardship payments if he falls within a “vulnerable group” (see p.487, CPAG for list of vulnerable groups).

“The DWP says that the circumstances that count as good cause for other training scheme and employment programmes must be considered.” (CPAG, p.472: Reference: DMG, para 34796).

See page 475 of CPAG for list of things that amount to good cause for other training scheme and employment progs.  I am not sure that language difficulties and simply not understanding will by themselves amount to good cause.

Any other thoughts on this?

Hi - thanks for the reply - i’m fine on the various definitions of good cause - it was more the implications of the 5 day time limit & the client failure to provide “good cause” within this 5 days (though we would argue there was “good cause” to that failure as he did not understand what was going on) that I was unclear on. I’d welcome any thoughts on this.

There must be plenty of case law on the 5 day rule for showing good cause for failing to attend an appointment (ie, signing on), as this has been a feature of JSA since it began.

I would consider whether or not you might be able to make an argument that the client has not been correctly notified of the requirement to participate and therefore all of the sanctions are invalid.

See the Reilly and Wilson case- in this case Mr Wilson’s notice was held to be invalid (and that invalidity held to prevent a sanction) because it did not properly describe the escalating sanction regime for the Work Programme (2, 4 and 26 weeks).

The case is here: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2292.html

Para 119 is key:

119. In my judgment, the initial letter to Mr Wilson did not in the respect I have identified meet that obligation. I do not think it is fair, sufficient or accurate to tell someone who could only at that stage be sanctioned for 2 weeks that he or she could be sanctioned for “up to 26 weeks”. The letter should spell out that, having failed without good cause to participate in the CAP on one occasion, the sanction if a sanction was applied would be one of 2 weeks’ loss of benefit and that thereafter the period would increase with further separate failures to participate. I emphasise the underlined words because the words used in the letter received by Mr Wilson were that his benefits “may be stopped”, perhaps conveying the impression that sanctions are not necessarily automatic. However, it seems to me that the clear intention of the Regulations is that the sanctions are mandatory. This conclusion is derived from the words in Regulation 8(1) which state that “the appropriate consequence for the purpose of section 17A of the Act is as follows” (my emphasis) once it has been decided that no good cause for the failure to participate in the scheme has been demonstrated. If that is the correct interpretation of the Regulations (and I do not think Mr Nicholls has suggested to the contrary and neither does Mr Walsh’s second witness statement), then the letter ought, in my view, to be more explicit in this respect. (I might add also that the passage in the letter dealing with the appeal process, whilst arguably accurate as it stands, might be made more clear and open given what has been said by the Department concerning the wide ambit of the appeal process: see paragraph 155 below.)

At para 161, the Judge is clear that the consequences of that failure to properly notify is no sanction can be imposed:

161. [.....] , the answer to my mind is plainly that there could be no question of sanctions being validly imposed if no proper notice of the sanction consequences was given.

I suspect the wording on the notices was standard so sanctions using that notice are all unlawful.

This gets you out of having to argue the good cause issue at all (the DWP must show proper notice was given before you have to show good cause).

Martin

Thanks for that - very interesting

john