DWP work schemes found illegal

The Court of Appeal has ruled today that the Department of Work and Pensions back-to-work schemes are illegal because the regulations that Iain Duncan Smith created to allow the schemes overstepped the law. (An act of Parliament allows for regulations to be created to specify the detail of the law, these regulations went further than Parliament had allowed for.) The court did not find that the schemes violated article 4 of the Human Rights Act, nor did it find that the concept of making people undertake work experience to increase employment prospects would be a problem were it in an act of parliament. Since these work schemes have been proven to actually reduce employment prospects, however, it is possible that the schemes may yet be found to violate human rights.

Public Interest Lawyers explain the judgement:

“The Court found that the Secretary of State, Iain Duncan Smith, has acted beyond the powers given to him by Parliament by failing to provide, any detail about the various “Back to Work” schemes in the Regulations. The Government had bypassed Parliament by introducing the Back to Work schemes administratively under an “umbrella” scheme knwons as the Employment, Skills and Enterprise Scheme, claiming the need for “flexibility’. The Court of Appeal held that this was contrary to what Parliament had required.”

Paragraph 63 of the judgment criticises the information given to the benefit claimants. I have covered this in previous blog posts (Mandatory unpaid work – the evidence) where I explained that letters sent out state clearly that the work experience is not optional and will result in sanctions while DWP ministers have simultaneously appeared on TV to claim that the work is voluntary and that they have not forced anyone.

Public Interest Lawyers also tell us that:

“The effect of the judgment is that all those people who have been sanctioned by having their jobseeker’s allowance withdrawn for non-compliance with the Back to Work Schemes affected will be entitled to reclaim their benefits. And until new regulations are enacted with proper Parliamentary approval nobody can be compelled to participate on the schemes.”

The two people who brought this case were made to take part in Sector based work Academies and in the Community Action Programme. I do no know whether this judgement affects Work Experience arranged either by the Job Centre or as part of The Work Programme however it does not affect Mandatory Work Activity, which remains legal. It should be noted that some people who refused to co-operate with “voluntary” work experience were referred to Mandatory Work Activity as a result which allowed for sanctions, but this was not covered either.

In a written statement today Minster for Employment Mark Hoban MP said:

“Whilst the judgment supports the principle and policy of our employment schemes, and acknowledges the care and resources we have dedicated to implementing them, the Court of Appeal has ruled that the Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011 (“the ESE Regulations”) do not describe the employment schemes to which they apply, as is required by the primary legislation. The Court of Appeal has therefore held the ESE Regulations to be ultra vires and quashed them.”

The government has been refused leave to appeal by the Court of Appeal but despite this they have announced that they will appeal to the supreme court to have the judgement overturned. Job Seekers who have been sanctioned by the DWP will not be able to appeal to the DWP for the repayment of their benefits until this has finished. Worryingly the minister also stated that the DWP are “considering a range of options to ensure we do not have to repay these sanctions.” This suggests to me that there will be a hastily enacted act of Parliament to move the scheme from regulations into law, but even then I cannot see how it could be retroactive.

Further Reading

The lawyers: Court of Appeal Rules that the Government’s “Back to Work” Regulations are Unlawful and Must Be Quashed

The Judges: Full judgement of the Court Of Appeal [PDF]

The DWP: Written Ministerial Statement: Judgment in Wilson/Reilly case [PDF]

The regulations: The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011

The Guardian: Graduate’s Poundland victory leaves government work schemes in tatters

Author: Latentexistence

The world is broken and I can't fix it because I am broken. I can, however, rant about it all and this is where I do that when I can get my thoughts together. Most of the time you'll find my words on Twitter rather than here though. I sometimes write for Where's The Benefit too.

19 thoughts on “DWP work schemes found illegal”

  1. Don’t see how it could be retroactive? This is the government which decided that people in the WRAG should be liable to an unlimited length of unspecified Work Experience.

    The DWP was probably kite-flying when it wondered aloud if everyone applying for ESA should be made to work until the WCA had officially found them unfit. But it thought the idea worth a go.

    All they have to say is, “if the DWP got it wrong, then it doesn’t have to pay up,” and wait for however long it takes for the courts to disabuse them.

    I’m presuming that they’ve had civil servants working on alternative regulations ever since they knew the court of Appeal had agreed to hear the case.

    Still, congratulations of getting this item out so quickly.

  2. Do I understand correctly it is the lack of sufficient detail that workfare fell down on and not the actual practice of giving people the option to gain work experience when claiming benefits?

    1. It was the fact they were being given no option whatsoever that brought it to court in the first place (in fact Cait Reilly was working voluntarily in a placement she had arranged herself that was relevant to her career goals and was hauled off it by DWP/workfare to one that didn’t), though the judgement is more to do with the overall legality of the scheme.

      1. Disagree about pandering to peoples wishes to cherry-pick where the unemployed want to work on many fronts. Not least b/c we can find out so much more about a persons mindset, work ethic + timekeeping when they’re out of their comfort zone. After all, we are talking about two weeks.

        1. Don’t forget that the unemployed are not convicts serving a community service order. They are law abiding and mostly British citizens and I don’t wish to see any of my taxes funding an unlawful forced labour scheme for the profits of unidentified corporations. I expect better from our Government. As for ‘pandering to peoples wishes’ that’s democracy and ‘cherry-picking’ that’s the free-market – so I take it that you disagree with democracy and free-markets. No, we’re not talking about two weeks as such because these ‘work-experiences’ can be cycled over and over again.

        2. It really wouldn’t be practical to force me into a shelf-stacking job, no hands free when standing to start with (crutches), but force me to do something meaningless rather than concentrating on actually finding a job that will work with the specific restrictions of my disability and all I’ll demonstrate is exactly how much I object to the workfare concept. Give me the opportunity to work on something meaningful and you’ll see the side of me that ran a world class project, and was willing to put in anything up to an 86 hour week when the need was there.

          DWP/JCP tends to treat people like mindless identical cogs in the machine, only suitable for shelf-stacking, I actually had a JCP DEA recommend I look at minimum wage jobs immediately after I had explained to her I was a software engineer with 20+ years at the cutting edge of aerospace development (never mind the fact there are pretty much no minimum wage jobs that would work with my disability). That cog in the machine approach works for some, but for many people, the ones who actually contribute most when given the opportunity, it’s just going to put their backs up.

          JCP is very much a fundamentally broken system that sets out to crush people into conformity rather than give them the opportunity to excel, and workfare is simply an extension of that. You say it’s only two weeks, but IIRC the second scheme involved in the court case can be up to six months, while for disabled people like me, workfare is potentially unlimited.

          1. That’s not what the DWP has published in one of their documents ‘Work Programme – The First Year’, read on page 3:

            “Personalised support: The Work Programme caters for a lot of people, but it is designed to provide each individual with what they need. We don’t tell organisations what to do with each participant. They’re the experts and know what is needed for each individual, so we let them get on with it.”

          2. Hysteria? Is that one of those irregular verbs?
            I am rational
            You lack sense
            He is hysterical

            As for designing employment around individuals, where it relates to disability you’ll find that is the law, and has been since 1995.

  3. Good to see someone’s stood up to the Tory’s snug little slave trade with big business.

    It’s so obviously immoral and completely illegal; how they ever thought they’d get away with it I don’t know.

    Even with all their propaganda in the tabloids about lazy benefit claimants living a life of luxury on the state we still have a minimum wage (wonder when they’ll try to get rid of that?).

    If it were up to them HS2 would be built by chain gangs made up of anyone out of work for more than three months

    What’s more this is on top of trying to force physically and mentally disabled people off of their benefits with kangaroo court assessments.

    Mentally ill people who’ve just come out of the hospital after suicide attempts and who can just about handle going to the shops twice a week are being told they’re “fit for work”.

    All those who refused to work in the Tory slave trade must have all their benefits back and back paid for the time they were illegally taken away and all of ASOS’s horribly biased and unfair decisions must be struck off and the assessment’s begun again with a new and fair system.

  4. IIRC, there is precedent for retroactive legislation to prevent the government being sued for illegal actions – it came up last year when they found half the PCTs in the country had been acting illegally for a decade when they sectioned people with mental health issues (it was some complex failure in authorising people to do it, rather than incorrect decisions per se).

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