Work Providers and duties under Equalities Act

Forgive me if this has already been discussed.

Situation is; client failed WCA but won on appeal, got 15 points under 15b and 16c due to mental health i.e. Tribunal accepted that she was unable to get to a specified place with which she was familiar without being accompanied, together with social contact with someone unfamiliar not possible for the majority of the time.

With the best will in the world we accepted that no Sch. 3 descriptors applied and our sub. on Reg.35 was not accepted.

We discussed with client afterwards.Client accepted that she would be able to undertake some work related activity, provided it took into account her mental health difficulties and was tailored to her needs. We did not appeal further.

Client then called in for apt at JCP. No discussion of her problems. Referred to work programme.

Then gets letter - “Welcome to Work Programme (sic)” Informed of Gateway Employability Activity for first 2 weeks, attendance at which is mandatory. Letter states this will include “..an initial assessment and action plan with an advisor…”. Course is over 2 weeks, 4 hours per day. Client lives in Woolwich, the Work Provider has offices in Woolwich but the course is in Lewisham, some 5 miles away and 1 hour by bus.

I discuss with JCP. They state that they had no option but to refer her to Work Programme and have been making progress “educating” providers to take into account needs of those with MH issues. They suggest I write to Work Provider in advance of the course.

I do this (by fax) - I point out where the Tribunal awarded points, not realistic to expect her to take a friend along for 2 weeks and wait while she does course, not suitable for her due to accepted difficulties with social interaction.

I point out that she is not refusing to participate but just wants a proper assessment first. I ask them to contact me further to discuss.

No response. First day of course looming. First hour is described as an Induction. I discuss with JCP. I say how about if she turns up and asks for a proper assessment of her needs/ limitations during the induction? Sounds good they say.

So she does. Takes a friend with her - 2 hours round trip, friend has to come into room with her. 15 other people in room. Client panics but does her best to stay for the induction. No assessment done - she cannot even find the person “in charge”. She lasts the hour but then literally runs from the room in panic, bumps into people in Lewisham High Street making her escape.

Now has good cause letter! I can obviously respond with copy of my lengthy letter to Work Provider, to which no response made and hopefully avoid a sanction.

I want to lodge a complaint against this Work Provider, who is well known for doing little real work to help people.

Surely there is a duty on them to provide reasonable adjustments following a proper assessment? Can anyone with more knowledge of how the duty under the Equalities Act may apply, and what the remedy is, please advise?

Many thanks!

S20 & 21 of the Equality Act. “Reasonable Adjustment” is a fuzzy term, a failure to make such can give rise to a claim to damages.

I strongly suspect that it would be DWP rather than the WP provider who would be liable however a letter to the provider explaining their duties to take disabled peoples’ needs properly into account and make adjustments where appropriate and that failure to do so might have consequences would be a good starting point.

Also a sanction in such circumstances would certainly be questionable taking the same provision into account and I’d be arguing that on the good cause letter.

In certain circumstances we have gone straight to Law and had a couple of good results so far. It is satisfying to feel the powers that be panic… there is a 6 Month statutory limitation period; either send in a pre action letter yourself or ring Civil Legal Advice on 0845 345 4 345 assuming your client is Legal Aidable. I can forward a template pre action letter should you wish (might be an idea as it takes ages to get the bureaucracy out of the way should you go down the CLA route).

Don’t forget the threat of a sanction might well invoke Art 1 & Art 14 ECHR; there is clearly Thlimmenos discrimination ongoing in that situation. S3 HRA demands a public authority act in a manner consistent with convention rights and on that basis a sanction may well be unlawful.

MM & DM didn’t need to take the European issues into account so they’re still to be tested but they’re certainly going to be… 

Many thanks, that’s v helpful - yes please, send me the pre-action letter my e-mail is .(JavaScript must be enabled to view this email address).

We all know this is going on with work providers - its a bloody disgrace, they are shoddy, badly run and don’t really care.

This would be a good case to pursue. I am also sure we all know of the usual tactic employed where JCP say “It’s nothing to do with us, contact the work provider” and the work provider says “Contact JCP it’s their responsibility as they refer the people to us”. In this case the JCP person I spoke to insisted that the work provider applied the sanction and it had nothing to do with them! It’s like they know what’s going on and are keen to distance themselves if possible.

I had also wondered if JCP rather than the work provider, or both, might be worth pursuing due to a failure to properly assess, and then make reasonable adjustments for mentally disabled clients. Any further thoughts on that much appreciated!

I’d pursue them both.  The provider for the actual failure and the DWP for failing to have sufficient oversight.

I seem to recall that in the strictest legal sense, the duty to make reasonable adjustments lies primarily with JCP/DWP as the commissioning body for WP providers, so complaints should be lodged with them in the first instance.

However, I also feel that this does allow providers to say “It’s not our fault, speak to DWP” and they should also be held to account where they are clearly failing in their duties. So I’d agree with Paul about complaints against both being made.

I was going to suggest calling the Equality Advisory Service who have replaced the EHRC’s helpline, but a quick perusal of their homepage says that they do not “Provide advice to solicitors and other professional advisers” or “Provide legal advice” which made chocolate teapots spring to mind.

I’ve just thought; the good cause/sanction decision should take the Public Sector Equality Duty into account at S149 EA 2010.

Many thanks all - lots to think about here!

Just a thought - should I also try a review to ESA under Reg.35, as we now have evidence of a specific work related activity that she had to undertake which she sound very distressing?

Does it illustrate a substantial risk though? I’d want to see lasting deterioration before invoking the scrutiny of ATOS.

Is she likely to referred for another WCA if I go down this route, rather than the DM deciding on the evidence available?

PCLC - 22 November 2013 03:25 PM

Is she likely to referred for another WCA if I go down this route, rather than the DM deciding on the evidence available?

In my experience that will be down to whether the DM understands their role or whether, as is oft the case, ATOS are seen to be the decision making body.

I’m going to tempt fate here.  Although I advise all clients in the WRAG who are appealing to get in the SG that there is always the risk of re-assessment, all the cases I’ve had have either been revised in the client’s favour or simply been left to go down to TTS for them to sort it out.  And, in those cases TTS have kept away from the schedule 2 descriptors.  So far, at least.

Pclcs client had already been to TTS though…

Yes, of course.  Ignore me.  It’s getting close to pub time and I’m getting quite distracted.

This sounds like a reasonable discrimination claim. The area is really under-litigated and given the loss of public funding for social welfare is one worth looking out for. I am enjoying being able to hold the DWP to account again for sure!

In terms of the question of who is liable I would be tempted to have both the DWP and service provider as parties to the claim and see who wants to put their hand up and take responsibility. The results could be interesting…

If anyone gets anything through like this, or wants some advice on identifying potential equality act based claims,  I am happy to discuss via phone - 01942 77 4162 or email - .(JavaScript must be enabled to view this email address).

All’t best.

There may be a complex legal issue here.  All the work program main providers entered into agreements with the DWP on the same basis.

That was a ‘black-box’ contract - JC+ passed referrals to them and payment was made on the basis of outcomes for those people.  DWP has no control, or formally knowledge AFAIK, over the processes that the provider uses within the ‘black-box.  Their only interest is in the results.  I presume that there will be some standards or safeguards for claimants in the broad contracts - but those will be confidential - but DWP certainly have no control over the detailed operation of the program.