As is well known, when universal credit (UC) claimants fail to meet the conditions of their claim – for example, by failing to attend an appointment with their work coach or to do enough to look for work – they can be sanctioned. A sanction is effectively the removal of the ‘standard allowance’ element for a fixed period of between 28 and 182 days, or until the claimant complies. Sanctioning decisions are made by Department for Work and Pensions (DWP) decision-makers and notified to claimants in writing. Claimants can ask the DWP to reconsider the decision (via a process known as mandatory reconsideration (MR)) and can then appeal to the First-tier Tribunal (FtT).

A high proportion of appeals are successful – figures quoted by the Work and Pensions Committee in November 2018 indicated that 81 per cent of UC sanctions appeals were successful.1Benefit sanctions. Nineteenth report of session 2017–19, HC 955, 6 November 2018, para 100, page 47. In the meantime, however, the sanction takes effect and claimants see most of their benefits cut, exposing them to destitution, stress and uncertainty. Thus, the process is: sanction first, appeal later. Is this a fair system, or should claimants be allowed to appeal before the sanction takes effect?

Procedural fairness is a core principle of the common law. The values underpinning it are not only that fair decisions are more likely to be correct decisions, but also the importance of avoiding the sense of injustice that arises from an unfair procedure, and upholding the rule of law.2Osborn v Parole Board [2013] UKSC 61 at paras 68 and 71; [2014] AC 1115; February 2014 Legal Action 20. What fairness requires in any given case is, however, dependent on context, and it is necessary to examine the system as a whole to determine whether those requirements are met.3R v Home Secretary ex p Doody [1994] 1 AC 531 (HL) at 560. What, then, are the relevant features of the system here?

First, before the decision to sanction is made and takes effect, claimants do not have any opportunity to explain their case directly to the decision-maker. Where applicable, they will be given an opportunity to state, via their online journal, whether they have a ‘good reason’ for the alleged failure to comply.4The ‘good reason’ procedure does not apply to all sanctions. There is not normally any direct engagement with the decision-maker and no opportunity to respond to particular points of concern.

Second, it is only at the stage of an FtT appeal that the claimant will have the opportunity to put their case to an independent decision-maker. The decision-maker who decides whether to apply a sanction in light of any good cause put forward, or who will determine an MR, is another DWP official.

Third, hardship payments are available in theory for the period of the sanction. However, they are difficult to access in practice – figures from August 2018 show they were paid in only 17 per cent of sanctions cases5Proportion of sanctioned universal credit claimants receiving a hardship payment, David Webster, 8 July 2019. and comprise a loan of around 60 per cent of the sanction, repayable by subsequent deductions from benefits. Thus, they do not completely replace the benefit.

Fourth, if the appeal succeeds, the sanction will be overturned and the money reimbursed to the claimant. In many contexts, this opportunity for a fair hearing before an independent decision-maker, with the power to put the claimant back in the position in which they would have been, will be all that is required, even if it only arises after the decision has been taken and put into effect. That is particularly true where what is at stake is purely financial and therefore, on one view, clearly reversible.

However, first impressions can be deceiving. The effects of benefit sanctions are not only monetary, and their other effects may be irreversible. The damaging effects of poverty on children are well documented and will be intensified during the period of any sanction. In order to meet their basic needs, claimants may be forced to take out loans at commercial rates, which could leave them with crippling debt.6See, for example, Sumi Rabindrakumar and Laura Dewar, Unhelpful and unfair? The impact of single parent sanctions, Gingerbread, March 2018. Some may lose their accommodation.7See, for example, the case of ‘Jen’ described in Benefit sanctions. Nineteenth report of session 2017–19, ibid, box 6, page 48.

The mental stress of making ends meet may have a damaging effect on vulnerable claimants’ mental health8See, for example, the cases described at Glenn Mcdougall et al, ‘“My mental health deteriorated rapidly”: the real impact of benefit sanctions’, Guardian, 27 January 2015, and Ashley Cowburn, ‘Scrap benefits sanctions or risk mental health crisis, psychologists warn’, Independent, 26 February 2017. – particularly when the sanction period is extended. Ironically, this is now more likely to be the case for ‘low-level’ sanctions, imposed for less serious transgressions, than for medium- or high-level sanctions, because low-level sanctions last indefinitely until ‘compliance’. Although, theoretically, claimants can end these by complying, where they are vulnerable or administrative errors occur, this can be difficult in practice. Less tangibly, there may be an adverse impact on claimants’ engagement with a system that has removed their benefits for transgression of a requirement unfairly imposed or when they had a reasonable excuse for non-compliance.

Fifth, relief will not be quick in arriving: the DWP routinely takes weeks or months to consider an MR and listing delays at the FtT mean appeals routinely take several months to be heard.9The Work and Pensions Committee received evidence that ‘most appeals took over six months to be heard’: Benefit sanctions. Nineteenth report of session 2017–19, ibid, para 108, page 51. We have heard of a case in which the delay was 777 days.

Sixth, the number of sanctioning decisions that reach the stage of an FtT appeal is generally low and there is room for debate about the reasons for this. However, the fact remains that the success rate on appeal is consistently high (see above), and research indicates that it is higher for some groups who are likely to feel the effects more severely, such as single parents10Analysis by Gingerbread in 2017 showed that 62 per cent of challenges by single parents to sanction decisions were successful, compared with 53 per cent of other challenges: On the rise: single parent sanctions in numbers, April 2017, page 5. and care leavers.11The Children’s Society reported that between 2013 and 2015, 62 per cent of appeals by care leavers were successful compared with 58 per cent overall success in sanctions appeals in that period: David Ayre et al, The cost of being care free: the impact of poor financial education and removal of support on care leavers, September 2016, page 21.

All of this points to the need for a fair hearing before an independent decision-maker before the sanction is imposed, rather than after the damage has been done.