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.
“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“The effect of the judgment is that all those people who have been sanctioned by having their jobseeker’s allowance withdrawn for non-compliance with the Back to Work Schemes affected will be entitled to reclaim their benefits.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.
“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.
Today is the UN’s International Day of Persons With Disabilities. The theme is “Removing barriers to create an inclusive and accessible society for all.” Our government are celebrating the day by preparing to send sick and disabled people on unlimited unpaid “work experience”. In a way this is removing barriers – now sick and disabled people can be subject to the same punitive measures that unemployed able-bodied people are – but I don’t think this is what was meant.
The DWP press release has made an effort to deny that this is mandatory or punitive, but just a few words later explains that anyone who refuses to go on such unpaid work experience (or is unable to but ignored) will be subject to Mandatory Work Activity instead and failing that, will lose the majority of their ESA benefit. It would be nice to think that MWA is only used in extreme cases but in practice anyone and everyone can be sent for this mandatory labour without cause. My own brother is one such example.
This measure applies only to people in the Work Related Activity Group (WRAG) and those in the Support Group are safe for now but people in the WRAG are NOT fit for work, even ignoring the fact that so many people are wrongly assigned to the WRAG when they should be in the Support Group. They are expected to be able to return to work, with help, at some unspecified point in the future. This new policy of forcing them on to The Work Programme, work experience and Mandatory Work Activity (Unpaid labour) completely ignores this and will cause harm, suffering and even death.
I am writing to inform you of my opposition to schemes run by the DWP and the government which send people to do unpaid work and threaten sanctions for refusal to attend. I oppose the use of sanctions and removal of benefits of any sort to compel people to take part in unpaid work or to continue in unpaid work. I feel strongly that any such work placement must be entirely voluntary on the part of the job seeker. I understand that these schemes are a core Conservative policy, however I am not satisfied that this policy has majority support from the public.
Please be aware that I oppose ALL such schemes, including the work experience scheme, the compulsory work element of the work programme, the community action programme, sector-based academies, and mandatory work activity. I am sure there are others that I have missed. I find it very offensive to be told by Iain Duncan-Smith and Chris Grayling that “these are not the schemes that people are protesting about” when myself and others are very definitely protesting about all of these schemes. Even the spokesman in the DWP press office whom I spoke to in the course of writing about these schemes made this allegation, and it is simply not true. There is widespread objection to people being made to do unpaid work or face loss of benefits.
I believe that work experience can provide useful skills and training to job seekers however I do not believe that this will be found performing manual labour such as restocking shelves or cleaning floors in a supermarket, or, indeed, being sent out as cleaners to clean people’s homes. Such placements merely make use of job seekers as free labour to subsidise already profitable business but the claimants will not learn many useful skills at all, if any. As such I believe that work experience placements must be limited to those where job seekers are provided with a genuine learning opportunity and they are not displacing other paid workers as has happened in the case of Tesco and other supermarkets. (I have evidence for all of these assertions which I will be pleased to provide if you wish to query them.)
Additionally I must draw your attention to the plight of claimants of Employment and Support Allowance (ESA) who have been placed in the Work Related Activity Group. As things stand and under the welfare reform bill these people, who have been declared not fit to work at the moment but potentially fit to work in the next 2 to 5 years WITH the right support (by one of the designers of ESA) will be mandated to attend the work programme if Atos has decided that they will be fit to work within 3 months. Since a vast number of people are currently waiting for appeals against their placement in the WRAG rather than the support group, and since such appeals are taking a year or more, and since many people have overturned the decision on appeal, it is highly likely that people who are far to sick to work are being made to take part in the work programme and as part of that are being mandated to attend unpaid work placements. This is clearly not right in a society that claims to support those who are too sick to work. As patron of an ME support group you should be aware that many people with ME are being placed in the WRAG and later moved to the ESA support group on appeal, and these people can suffer serious setbacks as a result of being made to participate in the work programme or even work focussed interviews.
Yesterday employment minister Mr Grayling supposedly made concessions to guarantee there would be no use of sanctions on people withdrawing from the work experience scheme. However I have seen the statement yesterday from the minister in which he stated that “The work experience scheme remains and is totally voluntary.” and also that “The sanction regime remains in place.” As I understand it he has not admitted that whatever the rules may be, job seekers are routinely led to believe that placements are mandatory and threatened with loss of benefits if they fail to start or withdraw from the placement. There may be a small technicality here but in practice such work placements are not optional from the point of view of the job seeker. Again, I have evidence of these allegations taken from the DWP’s own documentation and from several people subject to compulsory work which I can forward to you if you wish.
I therefore would like you to make it plain to the employment minister that he must move towards removing all sanctions for failure to attend work experience placements.
Please do not reply to this email with a standard “everything is fine” letter, as I find these to be rather dismissive and I would be grateful if you could address the points that I have raised here.
I have heard of cases where job seekers who have declined work experience have been immediately sent for mandatory work activity instead. This seems a vindictive way for job centre advisers to force compliance.
I also have found some of the responses from Iain Duncan Smith, Chris Grayling and David Cameron to be highly offensive. I object to being called “job snobs” “trotskyites” “Anti-capitalist extremists” “unemployed anarchists” and to protests being attributed to the SWP. These are intended as insults, not arguments, and are not what I expect to hear from government ministers.
The government today caved in to bad publicity and agreed to remove the possibility of sanctions from those who refuse to take part in the work experience scheme. Those guilty of gross misconduct may still be sanctioned with removal of benefits.
However, a DWP spokesperson confirmed to me this afternoon that it is only the work experience scheme which is affected by this change. Those on the work programme, which is run by third party providers such as the disgraced A4e, may still face sanctions if they do not cooperate with the programme. As detailed in the previous article on this site, it is mandatory to attend the work programme after a set amount of time receiving Job Seekers Allowance or Employment Support Allowance. The DWP spokesperson pointed out that the work programme provides much more than just work experience placements and referral to the programme does not necessarily mean undertaking work experience.
In addition to the work programme there are several other schemes involving compulsory work including the community action programme and mandatory work activity. There is also the possibility that those who refuse work experience may be picked for mandatory work activity, and then sanctioned if they refuse to take part in that.
I discussed with the DWP the issue of those who are receiving ESA and placed in the work related activity group being referred to the work programme and possibly for work experience. This is problematic since at the current time many people overturn the decision to place them in the WRAG on appeal and appeals can take a year in many cases so that people who are not fit for the work programme, never mind fit for work might be sent for work experience. The spokesperson did point out that people can present evidence and ask for a reconsideration before going for an appeal, although since at least 40% of those who appeal their decision go on to overturn it I do not think this is enough to ensure that everyone on the work programme is physically and mentally up to the task.
As it stands then, the removal of sanctions from the work experience scheme is a minor victory but the danger is that it will convince the public that all is well once more and the anger over people being made to work without pay may cool. Jobseekers and sick people can still be referred to the work programme where companies such as A4e can send people to do unpaid work experience or face loss of benefits. In the case of those who recieve ESA there is no limit to the length of time they may be made to work without pay. Bizarrely, now that sanctions for refusing work experience have been removed, it may be the case that only people over 24 and those who are officially too sick to work can be forced to work unpaid.
The government are relying on technicalities to claim that unpaid work experience is voluntary. In fact they claim that they are entirely voluntary which is blatantly not true. There are multiple schemes which involve unpaid work. Some of them are:
The Work Experience Scheme
The Work Programme
Mandatory Work Activity
Community Action Programme
Sector-Based Work Academies
Government ministers have been trying to direct attention to the first of these, the work experience scheme, which is almost voluntary. Technically a job seeker has the option to attend work experience or not. The acknowledged element of compulsion is that once someone has been in a work experience placement for a week they can be sanctioned if they leave it. In practice, job seekers may be sanctioned if they refuse to start a placement too. The wording of the standard letter on being sent to do work experience is very strong and does not give the impression that the placement is optional, and people on the scheme have frequently reported that their advisers led them to believe that they had no choice.
The second scheme on the list, the work programme, leads do compulsory unpaid work in two steps. First, referral to the work programme – where a contracted provider administers training, skills development and work experience for the job seeker – is mandatory after a defined time period. Job seekers aged 18 – 24 will be referred after 9 months, aged 25+ after 12 months, and ESA claimants in the work related activity group within 3 – 6 months. Secondly, once on the work programme it is mandatory to take up a work experience placement when ordered to by the company running the programme.
The third scheme, mandatory work activity, speaks for itself. It is up to the Job Centre adviser to choose whether or when to send someone for mandatory work. It is supposed to be used when job seekers have behaved badly or refused to comply with direction from the Job Centre, and to provide discipline for those who have never worked. In practice it can be used vindictively by the adviser with no recourse for the job seeker. Unpaid work under this scheme is supposed to only be work that directly benefits the community but again in practice things are different and the work can be something that does not benefit the community directly, but instead brings profit to an employer who does some community work as well.
Government ministers and the DWP have tried to portray these schemes as being for young people aged 18 to 24 however that is not the case. People of all ages have been sent to do unpaid and unskilled work including those with decades of experience or multiple qualifications in their subject.
Here is an image showing the standard letter sent to job seekers on being sent to do work experience:
The letter states:
Please note that if, without a good reason, you fail to start, fail to go when expected or stop going to the provision mentioned above (as in Section 19(5)(b) of the Jobseekers Act 1995), any future payments of Jobseeker’s Allowance could cease to be payable or could be payable at a lower rate. You could also lose entitlement to credit of National Insurance contributions. (Emphasis mine)
14. Where you are providing support for JSA participants, which is work experience you must mandate participants to this activity. This is to avoid the National Minimum Wage Regulations, which will apply if JSA participants are not mandated.
I also have letters sent to Aldston about the Community Action Programme which use similar terms to those used for the work experience scheme. See more at Aldston’s blog.
Apart from all that proof that unpaid work is mandatory, we also have strong indications that work experience placements are not helpful.
Their report concluded that Workfare schemes may actually make someone less likely to find work:
There is little evidence that workfare increases the likelihood of finding work. It can even reduce employment chances by limiting the time available for job search and by failing to provide the skills and experience valued by employers.
Subsidised (‘transitional’) job schemes that pay a wage can be more effective in raising employment levels than ‘work for benefit’ programmes. Workfare is least effective in getting people into jobs in weak labour markets where unemployment is high.
Yes, I’m afraid this is yet another blog post on Workfare and Chris Grayling. Sorry. I just couldn’t let this one go. Employment minister Chris Grayling spoke to Radio 4’s Today programme this morning at length and lied his way through the whole eleven minutes. You can have a listen in this Audioboo:
I started to transcribe the parts that were blatant lies, but I gave up because it was going to be so long. Instead I will highlight a couple of points. Grayling repeatedly asserted that the Work Experience Scheme is entirely voluntary. On paper, it is. In practice once a Job Centre adviser has suggested that someone should go for work experience, if they refuse then they are likely to be sanctioned (lose benefits) for being uncooperative or referred for Mandatory Work Activity which is definitely not voluntary. In addition, a person will lose benefits for at least four weeks if they drop out of a work experience placement after the first week, so it is definitely not voluntary after week one.
Grayling mentioned Mandatory Work Activity. He said it would only be used “when a job centre plus adviser feels that somebody has gone off the rails or they’re not trying or they’re really kind of out of sorts.” The DWP say that it would only be used for people who need to learn the discipline necessary to hold down a job because they have never worked, however we know that MWA can often be used as a punishment for disagreeing with an adviser or simply because an adviser doesn’t like someone. There is an article in The Guardian detailing the case of a graduate who has previously worked (for pay) in McDonalds and Morrisons and yet was sent for MWA. According to James Ball of The Guardian, in November 8,100 people were sent for mandatory work activity, which is 1,500 more than those sent for work experience.
He said that MWA is only used for “community benefiting projects” which is not true. MWA can be for a for-profit company as long as that company undertakes some community work.
He said that the only scheme which involves mandatory work is the Mandatory Work Activity scheme. This is not true. People can be forced to take part in The Work Scheme, as you can see for yourself in this DWP statistics release. [PDF] The image below shows page 7 from this document with the word “Mandatory” clearly used over and over again. This is regarding referal to The Work Programme, however once on the programme the private company providing the services such as the disgraced A4e can and do send people for unpaid work.
“They’re coming under pressure from a big internet campaign that is being run by an organisation that is a front for the Socialist Workers Party.”
“It’s a false campaign […] My own email address was hacked by this organisation and used to lodge a complaint with Tesco so I don’t accept that the scale of the campaign is very large, it’s a small number of activists who are deliberately targeting these companies and trying to destabilise them.”
I have no doubt that there are some members of the Socialist Worker Party who object to Workfare schemes, but his assertion that objections are being run by an organisation that is a front for the SWP is just ridiculous. For a start, campaigns aren’t being run by any one organisation. There are multiple groups and all sorts of people objecting and campaigning. Boycott Workfare and Right to work are just two of those groups.
Grayling’s claim of hacking stems from his complete failure to understand IT and his labelling what he doesn’t understand as hacking. According to the Today Programme some time after Grayling’s interview:
Mr Grayling clarified his statement, saying that his email was not hacked but that his email address was used on a complaint lodged with Tesco.
Information seen later suggests that Grayling was in fact copied in to an email sent to Tesco by putting his email address in the CC field. If that is true and Grayling can’t tell the difference between being copied in to an email and computer hacking then I suggest that he has some serious defficiencies in his knowledge and needs to go on some remedial courses before he continues in his role in government.
Grayling stated that 50% of the people who start the work experience scheme are off benefits within eleven weeks. This is the only statistic that he was able to quote about results of any of these schemes, and it does not shed any light on how many of those people find work rather than simply stop claiming benefits and rely on parents or partners for room and board or end up homeless. He says “We know that a large number of those young people are actually staying on in employment with the employers who give them the placement” however he is unable to quote any proper reference for that claim and it appears to be purely anecdotal. Certainly Tesco have publicly said that of the 1,400 people that have been on the work experience scheme with them, only 300 have been taken on permanently.
“All of the evidence that we can see is that this does better than simply leaving people on JSA.”
Grayling claimed once again that no companies have pulled out of the work experience scheme. Some companies have demanded guarantees that no one would lose benefits over refusing or dropping out of the scheme, but quite a lot have pulled out entirely.
The presenter touched on an important point when he said that Cait Reilly “was under the impression that she was being forced to do it.” The phrase normally used by the Job Centre is “Your benefits may be affected if you do not attend” or something very similar. This phrase is used for all sorts of things, not just work placements. It is used for the work capability assessment for ESA, which is certainly not seen as optional by most people! It was used when I claimed incapacity benefit in 2005 and was instructed to attend the Job Centre to talk to a disability advisor about possible work. It didn’t seem optional to me. Basically, on paper many of these schemes may be optional but in practice if people don’t do as they are told by the DWP they lose benefits. If the Work Experience Scheme is optional then Chris Grayling needs to inform the Job Centre of that fact.
David Cameron is very proud of his Work Programme. Whenever the question of jobs and the number of unemployed is raised he answers that The Work Programme will help 2.5 million people. He claims:
“This is about ensuring that we have better education, a welfare system that helps people into work and a Work programme that provides not phoney jobs, as the future jobs fund did, but real work for real young people.” [Hansard 12 Oct 2011 Column 332]
The problem is that The Work Programme (a name which sounds really ominous to me) hasn’t actually helped all that many people. It turns out that only 1 in 5 people on the programme have managed to get a permanent job out of it, and BBC research indicates that it could be even lower. Even the DWP only estimated that 2 in 5 would do so. Given that the Future Jobs Fund was achieving a 54% success rate at getting people into work and The Work Programme was only ever expected to achieve 40% it seems like it was replaced purely out of ideology or “not invented here” syndrome. The low success rate of The Work Programme has not been helped by hiring A4e as one of the contractors to implement the scheme. Their previous efforts in the Pathways to Work Programme achieved 9% of people into work out of an expected 30%. The DWP ignored this record when considering contractors because some other contractors had no previous record to judge.
The Work Programme doesn’t seem to be all bad. This video made by The Guardian about a provider called Cheshire Training shows some positive aspects of the programme such as providing job application sessions, CV workshops, advice and some structure to keep people from giving up or being worn down by the lack of activity that is often involved in unemployment. I think such services could easily have been provided by the Job Centre rather than being outsourced, and in fact, some were or are.
(Bear in mind that the people interviewed were chosen by the Department of Work and Pensions and are not unbiased.)
While there are some positive aspects highlighted in the above video there are some rather larger down sides to the programme – forced labour being the biggest problem. There are two schemes that take place before the work programme itself: The Work Experience Scheme and Mandatory Work Activity Scheme. They involve being sent to work – usually full time – in a business that is paid to provide work experience. The placement usually lasts between two and eight weeks. Taking part in the scheme is not optional. If an adviser at the Job Centre Plus or in a provider of the work programme has decided that you must do some work experience, then you will have your benefits cut for at least 13 weeks and potentially 26 weeks if you do not. (And up to three years under the Welfare Reform Bill.) This is made worse by the fact that the job seeker does not get to choose their placement, they will be sent wherever the private contractor wants to send them. Not only that, but the work placements for the most part involve no training, only basic unskilled labour such as stacking shelves and washing floors. The Work Programme itself involves placements that can last up to six months and job seekers can be assigned to the programme for two years.
People sent on these placements are often doing the same jobs as people paid a full time minimum wage, except that is becoming rarer because many businesses that take part in the scheme have laid of temporary and part time staff in favour of free labour from the scheme. Instead of paying their staff, these big businesses are getting paid to put people to work. This might perhaps be just about acceptable if the people on the schemes were given a job at the end of the placement, but the norm is for them to be sent back to the job centre and a new unemployed person put to work in an endless cycle of free labour. It is baffling why our government thinks that paying businesses money to exploit people and making people work a full time job to the benefit of private industry for just their £53 per week job seekers allowance is a good idea. Even if the DWP do require people to work in return for their benefits (And I don’t think that fits the ideal of ensuring that no one is destitute) I do not think they should be required to work for more hours than they receive the equivalent money for at minimum wage. Indeed, it may well be illegal for these people not to be paid minimum wage and I hope that there are some successful legal cases against the scheme soon.
Cait Reilly is a good example of how the work experience scheme is at best unhelpful. She willingly attended an open day for people looking for retail work, work that she was quite prepared to take. However, after attending that open day she was then forced into a work experience placement at Poundland.
“I explained to my adviser my reservations about taking part: I was already in the middle of a work experience placement that I had organised for myself (and which was more relevant to the museum career I hope to pursue), and I already had retail experience.”
“I thought the “training” was optional, and it came as a shock to be told I was required to attend or risk cancellation or reduction of my £53 per week jobseekers’ allowance – despite the fact I have always actively sought paid work. So I began the “placement” with Poundland – it was not training, but two weeks’ unpaid work stacking shelves and cleaning floors. I came out with nothing; Poundland gained considerably.” [Cait Reilly writing for The Guardian]
The following is a quote from a comment left under the video shown earlier in this article.
“I personally know a fifty-six year old man who worked at Tesco for 40 hrs a week for 6 weeks for no pay. He said he was given the worst job, constantly filling freezers in the hope he would be taken on. After the 6 weeks were up the manager asked him if he would like to stay on for some extra weeks, my friend asked “with pay”? The manager said why would he pay him when he can pick the phone up and get more unemployed people who have to work for nothing of face sanctions meaning loss of ALL benefits for up to three years!
My friend wasn’t alone, he was part of twelve extra staff taken on to cover the xmas rush, no one was given a job at the end of the xmas period.” [Comment at The Guardian]
The above scenario of businesses taking on free labour for busy periods is not uncommon. We also have this example of a woman who worked for six months at Newham Council alongside colleagues who though that she was a permanent paid employee.
I went to [her] leaving do … We were all so sorry to see her go. She was an older lady and was one of the most hard-working and genuinely helpful admin staff we’d ever had. Worked her hours plus more and nothing was ever too much trouble for her. We honestly didn’t know why she was leaving after only six months. She’d worked a minimum of 37 hours per week (often more) and been the backbone of service delivery. The basic starting wage for that level is around £17,000 but for the work she was doing I would have expected her to be started at a few thousand more. Yet all she was getting was JSA and the fares for her lengthy bus journeys, while people doing identical work were getting a salary, paid leave and pension contributions. We were horrified.
Wrongly, we assumed this woman would be hired back as proper staff within days. The role was needed, she’d proven herself to be a fantastic worker, was well regarded and knew the systems. But no, the post was suddenly deemed no longer required and this lady never came back to us. She did exactly the same job as paid staff, yet didn’t get the same salary. This is illegal if the reason is age or race, but perfectly acceptable if someone has claimed a state benefit. It’s exploitation and it’s repellent. [Quote taken from Coporate Watch]
Perhaps government ministers don’t understand why unpaid labour is a problem because they are in the habit of finding unpaid internships and eventually real jobs for their own children through their family and business connections. Many even pay the employers to take on interns – £200 per day isn’t unknown. This is all very well for the rich, but most people who receive Job Seekers Allowance can barely afford food and rent. For those who are rich enough, paying for an internship at a bank at least provides useful experience for future employment in that industry, while being sent to stack shelves at Tesco or wash floors at Poundland for months at a time does not provide much for a CV in my opinion. It seems unlikely that a useful reference would come from such a placement, if the manager could even remember one person among such a high turnover. Volunteering for a charity is a positive thing that will tell an employer something about the job applicant. Being forced to wash floors for three months doesn’t say much about them at all.
I don’t object to work experience. It is quite reasonable for an unemployed person to spend one or two weeks in a relevant job learning useful skills for future employment. The Work Programme does not provide this. Instead it sends free labour to profitable businesses, and pays them for the privilege. These people do not receive useful training but simply replace paid staff in doing hard repetitive work. Most of the businesses taking part are profitable, in fact Tesco made a profit of £14,000 per employee last year. If they have work to be done then they should pay people to do that work. It’s that simple. People being sent for work experience should not be replacing staff, they should be shadowing them, assisting them and learning.
What is even more scary is that the government are systematically destroying workers’ rights making people more likely to become unemployed. Examples such as this call to Give firms freedom to sack unproductive workers soon add up to a worrying lack of job security. Is it really the Tory plan to have so many people sacked and working for free?