Government faces backlash over unlawful, unpaid, forced work schemes

The government's unpaid, forced work schemes have suffered a setback when Appeal Court judges said yesterday that key elements of them were unlawful.

The coalition government remains unrepentant, however. It says it will push through technical changes to thwart the court judgment, will continue to make people work for free for big corporations in often meaningless roles, and will actively seek to deny repayments to thousands of people who are now owed them.

But campaigners against workfare in the UK say that the ruling is the beginning of the end of many of these schemes, and that they will now step up pressure to thwart government and DWP attempts to make people work for nothing on punitive programmes which are producing measurably poor results, instead of offering proper job support and investing in genuine employment opportunities.

In a unanimous decision yesterday (12 January 2013), the three judges from the Court of Appeal agreed with a university graduate's claim that the unpaid schemes were legally flawed.

They ruled that the Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011, under which most of the government’s failing 'Back to Work' schemes have been created, are unlawful.

The ruling was a huge setback for the Department for Work and Pensions (DWP) whose flagship reforms have been beset with problems since their inception.

The effect of the judgment is that all those people who have been sanctioned by having their jobseeker’s allowance withdrawn for non-compliance with the Back to Work Schemes affected will be entitled to reclaim their benefits.

Until new regulations are enacted with proper Parliamentary approval nobody can be compelled to participate on the schemes, points out Public Interest Lawyers, the campaigning Birmingham firm who took on the case.

The government initially indicated that it would seek a stay of the order quashing the Regulations “because of the ramifications of the decision.” Government Counsel Paul Nicholls QC submitted that the effect of the decision would be immediate: “the original requirement imposed on claimants such as Mr Wilson that they participate in a programme would be unlawful and they could not be required to participate further.” People would be free to leave placements if they did not wish to continue with them, and all sanctions currently imposed would have to be immediately brought to an end.

After objections from the claimants, the government then abandoned their request for a stay of the quashing order which means that the judgment takes immediate effect.

However, ministers at the Department of Work and Pensions (DWP) brought in new, more precise regulations on Tuesday evening to allow it to require jobseekers to take part in these schemes, which are being trialled for young people in London and Derbyshire.

The case was brought by Cait Reilly, who was made to stack shelves in Poundland for two weeks, and Jamie Wilson, who was stripped of his Jobseeker’s allowance for 6 months after refusing to participate in a Community Action Programme scheme which required him to work 30 hours a week for six months for free.

In a carefully reasoned judgment the Court found that the Secretary of State, Iain Duncan Smith, has acted beyond the powers given to him by Parliament (the Welfare Reform Act 2009, which amended the Jobseeker’s Allowance Act 1995) 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.

Stanley Burnton LJ stated that: “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. There are well known legislative formulae for conferring complete flexibility of decision on a Minister.” (at [75])

The result is that over the past two years the UK government has unlawfully required tens of thousands of unemployed people to work without pay and unlawfully stripped thousands more of their subsistence benefits.

The case has revealed the chaos and confusion at the heart of the DWP who have set up a web of schemes and sanctions so complex that their own jobcentre advisers are failing to implement them correctly, says PIL.

It has shown that the basic requirements of fairness dictated by Parliament, such as providing people with a clear explanation of what they are being asked to do, why they are being asked to do it and what the consequences are if they fail to do it, have not been complied with by the DWP.

Tessa Gregory, a solicitor from Public Interest Lawyers, commented yesterday: “Today’s judgment sends Iain Duncan Smith back to the drawing board to make fresh Regulations which are fair and comply with the Court’s ruling. Until that time nobody can be lawfully forced to participate in schemes affected such as the Work Programme and the Community Action Programme. All of those who have been stripped of their benefits have a right to claim the money back that has been unlawfully taken away from them from the DWP."

She continued: "The case has revealed that the Department of Work and Pensions was going behind Parliament’s back and failing to obtain Parliamentary approval for the various mandatory work schemes that it was introducing. It also reveals a lack of transparency and fairness in the implementation of these schemes. The Claimants had no information about what could be required of them under the back to work schemes. The Court of Appeal has affirmed the basic constitutional principle that everyone has a right to know and understand why sanctions are being the threatened and imposed against them”

One of the claimants, Jamie Wilson, said: “I am really pleased that the Court has found in our favour. I refused to participate in the Community Action Programme (CAP) because I objected to being made to clean furniture for 30 hours a week for 6 months when I knew it wouldn’t help me find employment. I was given next to no information about the programme, I was told simply that I had to do whatever the DWP’s private contractor instructed me to do and that if I didn’t I may lose my benefits. Being without jobseeker’s allowance was very difficult for me but I don’t regret taking a stand as the CAP is a poorly thought out and poorly implemented scheme which even according to the DWP’s own statistics is not helping anyone get people back to work."

"I am now participating in the Work Programme but it doesn’t involve me working for free, I have to meet an advisor every three to four weeks who helps me look for work. I will continue to attend these sessions with my adviser regardless of whether or not I am required to attend because I want to find a job and the sessions are very helpful,” he said.

Cait Reilly, the other claimant, commented: "I am delighted with [the] judgment. I brought this case because I knew it was wrong when I was prevented from doing my voluntary work in a museum and forced to work in Poundland for free for two weeks as part of a scheme known as the sector based work academy. Those two weeks were a complete waste of my time as the experience did not help me get a job, I wasn’t given any training and I was left with no time to do my voluntary work or search for other jobs. The only beneficiary was Poundland, a multi-million pound company. Later I found out that I should never have been told the placement was compulsory."

"I don’t think I am above working in shops like Poundland, I now work part time at the in a supermarket, it’s just that I expect to get paid for working. I hope the Government will now take this opportunity to rethink its strategy and do something which actually builds on young unemployed peoples' skills and tackles the causes of long-term unemployment. I agree we need to get people back to work but the best way of doing that is by helping them, not punishing them. The Government ought to understand that if they created schemes which actually helped people get back into work then they wouldn’t need to force people to attend,” she said.

The government is seeking permission to appeal to the Supreme Court. Nonetheless, the decision is being seen as a setback for the DWP's flagship forced work schemes.

The campaign group Boycott Workfare commented: "Of the numerous workfare schemes introduced by this government, only Mandatory Work Activity remains lawful. With immediate effect, those on the controversial Work Programme, Sector Based Work Academies, Community Action Programme or other workfare schemes may leave without risk of sanction. Sanctions currently in place must immediately be brought to an end."

Joanna Long, a member of the group, said: “This ruling is a victory of the people against a government which thought it could compel unemployed and sick people to work without pay, backed by a vicious regime of sanctions which made the poorest far poorer.

“We are confident the end is in sight for workfare in the UK. The only scheme found lawful is wobbling due to public pressure on the charities profiting from free labour. If Iain Duncan Smith attempts to put in place new workfare regulations, he should know that the public response will be outrage. Tens of businesses and charities are already boycotting his schemes, and today’s ruling shows that workfare is not only wrong, it is also unlawful.”

Boycott Workfare’s UK-wide week of action on 18-24 March 2013 will go ahead with the aim of bringing Mandatory Work Activity to an end, the groups says.

Meanwhile, the Department of Work and Pensions (DWP) is increasingly being seen not as a neutral government department but as a politically active part of the coalition's assault on benefits and welfare. Campaigners believe that there should now be an investigation into its activities, and whether they violate codes of conduct governing the operation of the civil service in Britain.

* Public Interest Lawyers: http://www.publicinterestlawyers.co.uk/

* DWP work schemes found illegal: http://www.latentexistence.me.uk/dwp-work-schemes-found-illegal/

* Boycott Workfare: http://www.boycottworkfare.org/

[Ekk/3]