Workfare: you win some you lose some

The court declared that the Department of Work & Pension’s workfare scheme was unlawful, because it was not being operated as described.

Iain Duncan Smith, Chris Grayling, Mark Hoban, Esther McVey – every Minister involved has claimed that there is no question of JSA claimants being forced to work for commercial organisations against their will by having their benefits sanctioned if they refuse a placement.

This was evidently not true – many people sent on workfare said it was not true, though only Cait Reilly and Jamieson Wilson so far have been brave enough to take the DWP to court.

The court decision yesterday proved the Ministerial and DWP claims untrue and therefore unlawful, and yet the Department of Work and Pensions claim they won (and also said they were going to ignore the court’s decision to deny them leave to appeal).

Another question that should be asked is: can it be shown that Iain Duncan Smith, Chris Grayling, Mark Hoban, or Esther McVey, have misled Parliament in giving evidence that has now been proved untrue?

So if the court found what they were doing to be unlawful, how could they have “won”? [As we find out in March: because they intend to pass legislation to make their unlawful actions retrospectively lawful.]

The DWP have today issued new, more detailed regulations that, they claim, do describe the workfare schemes exactly as operated, and which enable – they say – the schemes to continue lawfully. (Jobseekers Allowance (Schemes for Assisting Persons to Obtain Employment) Regs 2013 [link originally provided incorrect – will fix when new regs available online])

The reason why the DWP do not want to let go of workfare may be partly that it is so profitable for the big companies who take on workfare “employees” who need not be paid, and for the big agencies who receive a fee for every unemployed person they place, but also because whether a claimant is on workfare or sanctioned for refusing workfare, in either case they do not count in the unemployment figures. Workfare and sanctions enable them to massage the unemployment figures.

Update, 19th March

Today the government, having lost in the courts, will attempt to pass legislation to make their actions retroactively lawful. Because the sanctions re workfare were unlawfully imposed, money denied benefit claimants is now lawfully due them. The “emergency legislation” is intended to prevent these people getting what is theirs by right.

In a shameful gloss, Robert Winnett – hired by the Telegraph from Murdoch’s Sunday Times – describes the government trying to block taxpayers from being repaid their lawful due:

The Government will attempt to introduce emergency legislation in the House of Commons to stop taxpayers being forced to compensate tens of thousands of unemployed people who have already been pushed to accept work experience.

Mark Hoban, who claimed for red silk cushions and Sabatier knives for his second home on MP expenses, says:

Today MPs will debate emergency legislation to make sure that people who had benefits taken off them for failing to participate do not get that money back. It cannot be right – especially in these difficult economic times – that claimants failing to do enough to prepare for work receive an undeserved windfall payment.

Money unlawfully taken off them, as ruled by the courts, returned to them. An “undeserved windfall payment” says the man who claims tens of thousands for his second home: a few hundred pounds to someone who was unemployed in the last couple of years.

The rest of this blogpost is mostly quotes.

Sir Stanley Burton, in his section of the judgement by the Court of Appeals (72-74), declared that what they have been doing with workfare and sanctions was unlawful:

I emphasise that this case is not about the social, economic, political or other merits of the Employment, Skills and Enterprise Scheme. Parliament is entitled to authorise the creation and administration of schemes that, in the words of section 17A(1) of the 1995 Act, are designed to assist the unemployed to obtain employment, and provided that the schemes are appropriate for that purpose, it is not easy to see what objection there could be to them. Parliament is equally entitled to encourage participation in such schemes by imposing sanctions, in terms of loss of jobseekers’ allowance, on those who without good cause refuse to participate in a suitable scheme. This appeal is solely about the lawfulness of the Regulations made by the Secretary of State in purported pursuance of the powers granted by the 1995 Act as amended.

Furthermore, like Pill LJ, I recognise that there are considerable advantages in there being a large measure of flexibility in designing and administering a statutory scheme.

However, any scheme must be such as has been authorised by Parliament. There is a constitutional issue involved. The loss of jobseekers’ allowance may result in considerable personal hardship, and it is not surprising that Parliament should have been careful in making provision for the circumstances in which the sanction may be imposed.

So, where the DWP have sanctioned jobseekers for refusing to take part in workfare schemes, they probably did so unlawfully, the claimaints are entitled to get the JSA which was unlawfully sanctioned, and the DWP… are appealing the decision, because they don’t want to have to pay up what they owe:

The court ruling means tens of thousands of unemployed people who have been sanctioned under schemes such as Work Experience and the Work Programme are entitled to a rebate. However the Department for Work and Pensions (DWP) said it would not be paying out money until all legal avenues had been exhausted.

On Tuesday morning the DWP issued fresh regulations that would abide by the new judgment. The court refused the government leave to appeal but the DWP said it would take the matter to the supreme court.

The Queen on the application of Caitlin Reilly and Jamieson Wilson – and -The Secretary of State for Work and Pensions: Approved Judgment:

Cait Reilly (19-20), on a voluntary placement in a museum, looking for a job in the following work types: “museum curator, exhibition guide, retail assistant.” She was “open to ideas within reason”, acknowledging “her obligation to do everything she could do to find work and to improve her chances of finding work”.

In view of the admitted breach of regulation 4, subsequent events need not be set out in great detail. Miss Reilly attended the open day having been told by her adviser that if she accepted the position on offer she would undergo a week’s training followed by a guaranteed job interview. After the open day, she was told that she was considered suitable for training which was then said to be for a 6 week period. She expressed concern about the length of the training period which meant she could not continue to do her voluntary work at the museum. When Miss Reilly told her adviser of that, the adviser said that participation in the scheme was “mandatory” and Miss Reilly risked loss of JSA if she did not participate.

Miss Reilly began to work for 5 hours a day, 5 days a week and it became apparent that she would be working instead of training. She received no pay. She had expected to be shown how to undertake a variety of tasks in a retail environment but no such training materialised. The breach of regulation 4 is admitted on the basis that Miss Reilly should not have been told that it was mandatory for her to participate in the sbwa programme, though once she had agreed to embark on the training element it became mandatory. Had she not been misinformed, she would not have participated in the programme.

Iain Duncan Smith:

“What a snooty so-and-so. She seemed to say she shouldn’t stack shelves because she’s intelligent. The way she sneered — as if she was too good for it,” he says.

“…It’s a human right for the taxpayer to know you’re doing something productive instead of wafting around looking for the job you want while someone else pays for it.”

Cait Reilly had been assigned to a Sector-Based Work Academy (SBWA) which is advertised by the DWP to employers such as Poundland as:

Sector-based work academies are one of those measures available in England* to help those who are ready for work and receiving benefits to secure employment. They are designed to help meet your immediate and future recruitment needs as well as to recruit a workforce with the right skills to sustain and grow your business.
A sector-based work academy can last up to six weeks and has three key components:

Pre-employment training- relevant to the needs of your business and sector

A work experience placement – of great benefit to both the individual and a business

A guaranteed job interview

The key feature of sector-based work academies is that they offer a flexible approach and can be adapted to meet the needs of your business.
If you are unable to offer all three components, we may be able to work with you to overcome this – such as enabling you to join together with other employers as a consortium approach.
Participants will remain on benefit throughout the period of the sector-based work academy and Jobcentre Plus will pay any travel and childcare costs whilst they are on the work experience placement. There is no direct cost to an employer for sector-based work academies as the costs are covered by government funding.

Jamieson Wilson (21-26), had a Heavy Goods Vehicle (HGV) licence and had worked as an HGV driver from 1994 to 2008. “He was laid off in 2008 and, at about the same time, his self-esteem was damaged by the breakdown of his marriage”. He had agreed to look for “production work, warehouse work, assembly work”. and stated that he was “likely to need some support and direction”.

In November 2011, Mr Wilson was required to participate in CAP. This is a trial scheme for the very long-term unemployed and provides up to 6 months work experience. It is intended to provide additional provider-led job-search support designed to assist the unemployed to find a job. It is said that, for the long-term unemployed, six months regular work will revive the work habit. It will provide “the opportunity to gain sustained experience of a working environment”.

Beyond benefits to which they are entitled, including JSA, participants receive no additional wage. Orally and in writing, Mr Wilson was told that a refusal to participate could result in the loss of JSA. His placement was due to begin on 28 November 2011 and was to be with an organisation that collects disused furniture, renovates it and distributes it to needy people. These details were never set out in writing. He was told that he would be required to work for 30 hours a week for 26 weeks or until he found employment.

Mr Wilson told the provider’s representative that he was “not prepared to work for free, particularly for such a long period of time.” He had a fundamental objection to doing so. He said that he felt very strongly about CAP believing that requiring people to work for six months without pay was particularly unfair. If he had been offered a training course “that could lead to some concrete benefit” he would jump at the chance. The work had not been arranged by looking at his own needs.

Mr Wilson was not told what work he would be doing beyond carrying out the provider’s instructions. An arrangement providing for 6 months work without wages (save the Jobseeker’s Allowance) requires specification and notification, it was submitted. That is required in fairness to the individual and to the provider and to ensure that there is focus on the statutory intention of assistance in obtaining employment.

It was also claimed on Mr Wilson’s behalf that the notice given to him under Regulation 4(2) was inadequate. The Secretary of State relies on a letter dated 16 November 2011. It is headed “Support for the very long-term unemployed”. It is stated that “the community action programme will involve doing up to six months of near full-time work experience, with some additional weekly job search support”.
Under the heading “frequently asked questions” it is stated, amongst other things:
“Can I refuse to take part?
No. You must take part to keep getting Jobseeker’s Allowance
What happens if I refuse to take part?
If you refuse to take part, you may lose your benefit.
How long will I be expected to participate in this trial?
The trial will last for six months.”

Jamieson Wilson was assigned to the Community Action Programme, advertised to the provider as:

CAP is intended to help claimants move off benefits and into employment by equipping them with a valuable period of work experience, enabling them to develop disciplines and skills associated with sustained employment, (for example: attending on time on a regular basis as part of a working routine, carrying out specific tasks and working under supervision) and helping them capitalise on this through provider-led jobsearch support.

You are responsible for ensuring that the participant attends the placement as instructed. You should make clear to them that failing to participate could result in a sanction being applied to their benefit.
Whilst on CAP, the participant is required to attend the Jobcentre for Fortnightly Job Search Reviews and to confirm that they are continuing to meet JSA conditionality (actively seeking and available for work).

Mark Hoban’s response to the verdict:

“The court has backed our right to require people to take part in programmes which will help get them into work. It’s ridiculous to say this is forced labour. This ruling ensures we can continue with these important schemes.

“We are however disappointed and surprised at the court’s decision on our regulations. There needed to be flexibility so we could give people the right support to meet their needs and get them into a job. We do not agree with the court’s judgment and are seeking permission to appeal, but new regulations will be tabled to avoid any uncertainty.

“Ultimately the judgment confirms that it is right that we expect people to take getting into work seriously if they want to claim benefits.”

Mark Hoban’s message: Starve.

Justice Foskett noted last August (obviously he’s not a Daily Mail reader):

“[Miss Reilly’s] original complaint arose from what she was wrongly told was a compulsory placement on a scheme that (a) impeded her voluntary efforts to maintain and advance her primary career ambition and (b) having embarked upon it, from her perspective, did not offer any worthwhile experience on an alternative career path. It is not difficult to sympathise with her position from that point of view. Mr Wilson had more fundamental objections to a compulsory unpaid scheme (which indeed it was in his case) which, from his perspective, was not tailored to his own needs and would impede his continuing efforts to find employment, but again there is no suggestion in his case that he would not take suitable employment if he could find it.”