By Brian Thompson
In this blog post, Brian Thompson reviews a new book by Michael Adler, Cruel, Inhuman or Degrading Treatment? Benefit Sanctions in the UK (2018, Palgrave Socio-Legal Studies).
Michael Adler explains that the project of this book is to give a critical account of the benefit sanctions regime in the UK and to determine whether it is acceptable as it stands, whether it is capable of being reformed or whether it needs to be replaced. He defines his benchmark of cruel, inhuman and degrading treatment following Waldron’s textual approach, in which the words are considered separately, rather than drawing on the jurisprudence on Article 3 of the European Convention Human Rights.
After explaining his benchmark, Adler considers benefit sanctions as a matter of public concern and then embarks on the journey to his conclusion. The route includes the rationale and development of conditionality and sanctions in benefits, and then the impact and effectiveness of sanctions is illuminated with empirical evidence, both quantitative and qualitative, on which the acceptability of sanctions can be determined. Other aspects of the process are evaluated and comparisons are drawn. The arrangements for challenging the decision to impose sanctions are considered under the chapter title of benefit sanctions and administrative justice and in another chapter an informative comparison is drawn between benefits sanctions and court fines. The role of law in providing a social minimum is considered and an evaluation of benefit sanctions and the role of law, using Lord Bingham’s eight principles, is conducted. Alternatives are considered in the penultimate chapter and in the final chapter the conclusion, spoiler alert, is that the sanctions do constitute cruel, inhuman and degrading treatment.
Impact of sanctions and available data
This conclusion is reached despite Adler’s admission that there is a lack of ‘robust data tracing the extent to which the imposition of sanctions gives rise to hardship’ (p.78). In the absence of official data (about which the NAO was critical (2016)), Adler has recourse to more anecdotal evidence including a 2016 study of destitution in which the criterion for destitution is that adults or their children did not have two or more of six essentials in the previous month because they could not afford them or because their income was so low they were not able to purchase these essentials themselves. In this survey of users of voluntary sector crisis centres, 30% reported benefit sanctions. In two Scottish surveys, by Citizens Advice Scotland (2012) and Scottish Unemployed Workers’ Network (2014), interviews were conducted with sanctioned claimants who outlined the factors which led to the imposition of the sanctions as well as their experiences during the sanctions.
A significant number of these sanctioned claimants claimed that they were not aware of nor informed about the existence of hardship payments which the DWP could make. The eligibility criteria for hardship payments include a substantial risk that the claimant will not be able to buy essential items, food, clothing, heating accommodation. For those in vulnerable groups, which only included the homeless or the mentally ill from April 2017, payment could be made immediately at 80% of their personal entitlement, and for those who were not deemed in a vulnerable group there was 15-day wait and the payment could be around 60% of their personal entitlement. Adler’s interpretation of the official data suggests that around 40% of sanctioned claimants obtain hardship payments.
The aim of sanctions is to enforce conditionality, the job-search obligations which require claimants to actively seek work, to attend work-related meetings and interviews and, where required, to participate in Work Programme activities. The DWP had not analysed its own data but the National Audit Office (NAO, 2016) did in a Value for Money audit of benefit sanctions imposed in 2015. This shows that for those formerly in receipt of Job Seekers Allowance (JSA), sanctions increased the probability of being in employment in later months, reduced the number of days claiming benefits, increased the number of days in employment, and increased the number of days neither in work nor on benefit. For those formerly in receipt of Employment Support Allowance, sanctions reduced the probability of being in employment in later months, increased the number of days claiming benefits and not working and increased the number of days neither in work nor claiming benefit. In short, while sanctions can move people into employment it can be short lived, and there is an increase in people moving off benefits and into inactivity. The NAO concluded that the DWP was not achieving value for money.
Adler is critical of the official statistics and the claim made by the DWP on the percentage of claimants who were sanctioned. The DWP compared the number of sanctions issued each month after reviews/reconsiderations and appeals; this ratio varied between 2.5% and 6%. Adler argues that counting the number of sanctions before they were challenged is better, as the financial sanction is applied unless and until such a challenge succeeds. The response to a Freedom of Information request about the proportion of JSA claimants sanctioned and the number of repeat JSA sanctions which had been imposed disclosed that 18.4% of the 3,097,630 claiming JSA in 2013-14 had been sanctioned. These were sanctions imposed after review/appeal. Of these 539,225 sanctioned claimants, 30.9% had been sanctioned more than once, and 12.5 % had been sanctioned on three or more occasions.
Benefit sanctions and administrative justice
Adler conducts a very interesting analysis of five changes in the administration of benefits and sanctions relating them to his earlier work on the normative models of administrative justice, in which he revised and expanded Mashaw’s three models to six: bureaucratic; professional; juridical (previously termed legal and initially moral judgment by Mashaw); managerial; consumerist; and market.
The first change in 1998 saw all decision-making being carried out by officials acting on the minister’s behalf, whereas previously social insurance decision-making had been conducted by a specialist cadre of officials termed adjudication officers who had independence in this role. Adjudication officers could be said to be exemplars of the juridical model as the mode of decision-making was the assertion of rights, and legality could be said to be the legitimating goal, the accountability was independent and the mode of redress was appeal to tribunal and onward to specialist commissioners. Their removal constituted a promotion of the bureaucratic model in which officials were applying rules, the goal was accuracy, accountability was hierarchical and the mode of redress was administrative review. The change was not comprehensive as there was still the possibility of seeking redress through the juridical tribunal. The theory allows for the models to be competitive not exclusive. Here the change promoted the bureaucratic model over the juridical.
The second change was the creation of the Personal Adviser, who assisted claimants in their search for work, advising on training needs and opportunities. This, it is argued, promoted the professional model over the bureaucratic. The professional model is about the application of knowledge with a legitimating goal of public service, an inter-personal mode of accountability and a mode of redress of second opinion or complaint to a professional body. The paradigm profession for the professional model was medical and healthcare. Adler makes the argument that the Personal Adviser has a professional mode of decision-making, partly because of their knowledge and because they had a high degree of discretion in advising claimants, particularly sick and disabled ESA claimants.
The third change was the introduction of the job-seeker’s agreement, which specified the conditions and responsibilities and job-seeker’s directions which could require claimants to look for jobs in specified ways and to take particular steps to improve their employability. Here Adler argues that this promotes the bureaucratic over the professional model in that these are constraints upon the discretion of Personal Adviser and the powers of decision-makers.
The fourth change was the contracting out of the Work Programme, which lasted from 2011 to 2017. The contractors were paid for their services by the results of their activities in helping job-seekers to find and remain in sustainable work. It is argued that this change promoted the managerial and market models over the professional in that it created incentives to the contractors to refer ‘hard to place’ claimants to decision-makers for the consideration of imposing a sanction. The managerial and market models had managerial autonomy and matching supply and demand the decision-making mode, improved performance and economic efficiency were the respective legitimating goals, performance indicator and audit and competition were the respective modes of accountability. There is no mode of redress for the managerial model but there was the possibility that adverse publicity and complaints leading to sanction could be applied. In the market model redress is possible by litigation or by no longer dealing with that body – ‘exit’.
The fifth change was the introduction of mandatory reconsideration (MR) as the prerequisite for making an appeal to the tribunal when a claimant wishes to challenge a benefit decision, including the imposition of a sanction. The effect of this, Adler argues, is that it was made more difficult to challenge the imposition of a sanction and to have access to the independent tribunal, so that the bureaucratic model has been promoted over the juridical.
This analysis is a great demonstration of the utility of Mashaw & Adler’s normative models as they illuminate the competition and the changes in influence associated with different groups of actors and their mind-sets as they make decisions with changing processes and institutional contexts and their implications for justice. An MR is different from an appeal, because reviewers are officials and it is not made clear to claimants that they can present new evidence. The reviewers do not have the expertise which is found in the members of the tribunal, and so they are much less likely to overturn a decision than the tribunal. This goes some way to explain the somewhat counter-intuitive result that the success rate in appeals before tribunals is now much higher than it was before the introduction of MR. While Adler points out the economic incentives for outside contractors to refer twice as many claimants for sanctions as job centres, he doesn’t mention the finding in the NAO study that the overturn rate of sanctions is roughly twice as many for those originating from contractors’ referrals than those from jobcentres. On the other hand, the number of appeals is very much lower than it was, although it is rising again. It seems that MR is functioning as a barrier to, rather than a filter for, appeal to tribunals.
Benefit sanctions peaked in 2013, and as unemployment has decreased so has the number of sanctions which have been imposed. Adler’s very thorough, very readable study is extremely important because he finds, collates and interprets the evidence to produce compelling reasons to support his conclusion that benefits sanctions are cruel, inhuman and degrading treatment. He is interested more in root and branch reform, challenging the need for sanctions rather than the suggestions of two House of Commons committees which make the imposition of sanctions fairer, more consistent and more humane. If the European Social Charter with its protection for a social minimum is not to be incorporated into domestic law, or a universal basic income is not introduced, then perhaps the evidence that sanctions do not achieve the goal of helping people into work would remove the justification for them. I think Adler knows that this is not an ‘easy sell’ because in his second chapter he notes the survey evidence, in particular the British Social Attitudes surveys, which show that opinion has hardened against benefit claimants. When told the actual amount of benefit a 25-year-old single woman could obtain, this was not thought to be enough by 71% in 1994 and by 56% in 2013. It was thought to be enough or more than enough by 22% in 1994 and by 46% in 2013.
Perhaps awareness of that shift in public opinion which brackets those who have been subjected to benefit sanctions alongside asylum seekers and immigrants as people less deserving of sympathy supports the idea of conditionality for the receipt of benefits. Surely it cannot excuse ministers from failing to commission research into the hardship caused and whether the aim of getting people into work is being achieved. Adler’s study will help those who want to make that argument about the deficiencies of benefit sanctions, as well as promoting the cause of evidence-based policy-making.
About the author:
Brian Thompson is Senior Lecturer, School of Law, University of Liverpool.
Michael Adler, Cruel, Inhuman or Degrading Treatment? Benefit Sanctions in the UK (2018, Palgrave Socio-Legal Studies)