Noel Neenan is Information and Advocacy Officer with Crosscare Housing and Welfare Information (CHWI).
The CHWI service advocates for and assists 1000s of people every year who have difficulties accessing social protection supports. CHWI is based in Cathedral St, Dublin 1.
In order to access Jobseeker’s social welfare payments, applicants must satisfy the Department of Social Protection that they are ‘genuinely seeking work’ (GSW). Crosscare has overturned a number of disallowances on the GSW criteria recently where the relevant legislation and regulations were either not relied upon at all by Deciding Officers, or were applied in ways that failed to properly consider the claimants’ efforts to seek work. Examples of reasons given by Deciding Officers for disallowances have included: ‘insufficient’ English language skills, and disregarding extensive job seeking efforts when they do not include applying for ‘sufficient’ numbers of advertised positions. In other cases Deciding Officers have failed to recognise efforts made to canvass prospective employers. Applicants have also been subjected to unreasonable demands such as being asked to apply for all jobs listed on the Department’s website.
Once a person’s Jobseeker’s payment is stopped there can be serious flow-on effects such as destitution and homelessness, which can take a great deal of time and effort to repair. Therefore, given the pressure on the appeals system Crosscare believes it is imperative that social welfare advocates are alert to the possibility of defective decisions and are in a position to assist claimants to remedy these decisions on a timely basis.
The legislation and regulations applicable to Jobseeker’s social welfare payments have a very broad scope. This reflects the wide diversity of people’s backgrounds, capabilities and circumstances and the activities that form part of the search for employment. The relevant sections of the Social Welfare Consolidation Act (section 62 (5) (a) (iii) relates to Jobseeker’s Benefit, and section 141 (4) (c) relates to Jobseeker’s Allowance) require that a person must be seeking employment that is suitable for them having regard to their age, physical capabilities, education, normal occupation, place of residence and family circumstances. Under section 62(7) of the Act there are regulations “specifying the circumstances in which a person is or is not regarded as being available for or genuinely seeking employment” allowing that these circumstances may vary given the person’s previous work experience, period of unemployment and the prevailing employment conditions. It should be noted that the primary legislation allows the Deciding Officer to take a varied and reasonable approach.
Reflecting this, Article 16 of the relevant Regulations (Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007) says that the applicant must demonstrate that they have “in the relevant period, taken reasonable steps which offer him or her best prospects of obtaining employment”. This must be considered with regard to the person’s circumstances and specifically the person’s skills, qualifications and experience, steps previously taken; availability and location of vacancies, duration of unemployment and family circumstances.
Article 16 goes on to list what these “steps” shall include, warns that taking a single step “shall not be sufficient unless taking that step on that occasion, in that period, is all that is reasonable for the person concerned to do”, and requires the consideration by the Deciding Officer of the individual factors listed above.
The steps comprising “genuinely seeking work” include applying to advertised positions or to persons who may be in a position to offer employment; seeking information on the availability of employment from employers, advertisements, person who have placed advertisements indicating employment is available or employment agencies, availing of training opportunities, advice from the Department’s Intreo Employment Service and taking steps towards self-employment. The effect of the Regulations is that a person can be genuinely seeking work if he or she is undertaking one or a combination of those steps depending on the facets of their individual case at any point in time.
Overall the legislative provisions demonstrate that determining whether a person is genuinely seeking work is rarely a ‘black and white’ issue nor is it a simple or fixed test. There is an acceptance of wide variations of what genuinely seeking employment comprises depending on ‘real world’ practicalities. The approach taken and determinations reached by Deciding Officers must reflect this. Therefore any decisions taken that appear not to have a basis in the above provisions, appear unreasonable or unduly narrow or unrealistic given the person’s individual circumstances are challengeable and must be addressed by advocating for proper application of the law. Where this is done it is our experience that such poor decisions can be overturned and payments restored with full arrears.