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Work Programme providers and complaints

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Paul_Treloar
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Welfare benefits caseworker, Mary Ward Legal Centre

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Has anyone had any experience of making a complaint against a Work Programme provider on behalf of a client?

Seen a woman today with PTSD, depression, and anxiety, who we’re helping with an appeal to be placed into ESA support group (we think she has a good chance of success due to severity of health condition and constraints these place on her day-to-day life).

Since June 2013, she’s been placed on WP with a provider who I won’t name at this stage. Documents suggest that client has been mandated to attend interviews with her personal adviser approximately every 2-3 weeks ever since, which client finds very difficult to cope with as she has chronic agoraphobia and requires companion every time she attends.

Was put on telephone reviews for couple of these mandated meetings, but when she called, the personal adviser wasn’t available, sometimes with other clients and once on annual leave. Received letter dated 26.06.13 mandating her to attend meeting on 18.07.13, followed by another letter dated 01.07.13 mandating her to attend meeting on 16.07.13!!! Now most recently, has been informed that she missed a meeting on 18.12.13, which she says was never notified to her, WP provider threatening sanctions via JCP.

Client says that personal adviser has often been very aggressive, shouting sometimes, quite rude, and as noted above, often not available when she said that she would be. I think this stinks to high heaven but all guidance I have seen seems to give WP providers complete freedom to mandate clients how they see fit. Client asked about complaint but she is also very worried that this could cause her bigger problems down the line, especially when I explained that the WP provider is the body that deals with the initial complaint.

Any thoughts anyone? If we can get her into support group, that’s problem solved (although she has another ESA50 to complete already), but this seems to be harassment, pure and simple by the provider and I’d really like to escalate this, but not if it risks pouring oil on burning waters.

Paul_Treloar
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Thanks very much Andy.

PCLC
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Hi

Work programme providers cannot do as they please, they are subject to the Equalities Act 2010 and liable for a complaint of disability discrimination if they do not make a proper assessment of client’s needs and reasonable adjustments if the client has a disability as defined by the Act. We have a client with depression and anxiety who we got into the WRAG through an appeal, though could not get her into support group (common for those with MH problems). She was given points for needing some one with her to travel to a place with which she was familiar and social contact with someone unfamiliar not being possible for the majority of the time.
Referred to work provider who made stuck her on a 2 week course, 5 miles from her home by bus. I faxed work provider to put them on notice of her problems and the points awarded by Tribunal and asked them to carry out a proper assessment so that she could participate in the work programme. No response so I advised her to go. She went with her sister, had a panic attack after 20 minutes and fled the office. I e-mailed the work provider the next day to say told you so, please contact me urgently, no response. She then gets a pre sanction letter asking why she did not attend the course, which I responded to with all the evidence sent to work provider. No sanction.
I did post about that before and was advised that client could get legal help to be referred to a specialist with a contract in disability discrimination. Called the Community Legal Advice line with client who let me explain the details of the case to them, now have a discrimination solicitor onto it. Due to limitation periods I had to issue the claim, which is to an Employment Tribunal.
I would not bother with a complaint, consider this course of action if possible and client ok about it! The more of us that do this the more evidence we will have of what work providers are really doing with disabled clients and can then take it up with MP’s DWP etc.

Paul_Treloar
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Thanks for the suggestion, I will discuss it with client and see what she thinks about lodging discrimination claim.

nevip
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Previously discussed here.

http://www.rightsnet.org.uk/forums/viewthread/5617/

And, although distinguished, remember this case.  See attached.

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Paul_Treloar
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nevip - 28 January 2014 02:08 PM

Previously discussed here.

http://www.rightsnet.org.uk/forums/viewthread/5617/

And, although distinguished, remember this case.  See attached.

Thanks Paul, can’t believe that I didn’t have a look there myself first off, given that I’d contributed to it…..

PCLC
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Thanks Paul.

Legal help/ aid is still available for discrimination claims, but you have to go via the Community Legal Advice telephone line on 0845 345 4345 (the “Gateway”). They will assess if client entitled to legal help due to income and nature of problem. They are ok with an advisor explaining this so long as client with you and able to authorise it. They then pass it on to a provider who calls client or advisor back - you have to take pot luck on who you get on the day, but any provider should be competent enough to deal with it.

Pass-porting to legal help was simple in my case as client on own and on IB ESA. Other cases may not be so straightforward e.g if client on CESA with capital or with a partner who has income.

Also you have to lodge the claim online with the ET - deadline is 3 months less one day from last discriminatory act alleged. Also if you are alleging failure to make reasonable adjustment you have to give examples of an adjustment that could have been made (in our case, telephone support, one to one meetings/ mentoring, home visit etc).

Fees now apply to ET claims, with exemptions due to low income - again mine was simple as client on IB ESA but others may not be and reports suggests 85% of fee exemption requests are being refused due to trivial matters with the evidence of income supplied.
There is no way, given a strong case, that a work provider will let this go to a hearing and I fully expect them to try to settle the claim. However you can reject an offer and insist on the ET going ahead, but you need specialist advice before doing this.

Just a word on doing this rather than trying to get client in support group from the off - I am sure we all know that for many clients satisfying the Sc.3 descriptors is not possible, so you have to try a Reg.34 argument, which can be difficult especially as you are hypothesising about the potential effects on a client’s health should they have to do WRA. If you have a client who has tried to comply but failed due to a disability/ health condition and suffered an adverse reaction such that you could run a substantial risk argument, I would hope you could get client into support group on review. I have held off for this client so far as claim only issued last week and she has just got a letter saying she is not required to participate in the Work Programme” for the time being.” I think that must be because we defended the possibility of a sanction by sending everything to the DM inc. our attempts to contact the work provider, the Tribunal decision etc. We also said that we were considering an action for disability discrimination just to rub it in.
Interestingly enough, the letter from JCP to the client stating that she had to participate states that the work provider would “...discuss work relalted activities that may be appropriate for you to do. Any activity must be reasonable in your circumstances.” Clearly the DWP appear to be trying to cover themselves from a discrimination claim by making the referral in the first place.

Paul_Treloar
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Client called this week, ESA sanctioned as alleged to have missed appointment before Christmas (although she says it was never notified to her, which I believe as she has been scrupulous previously on both keeping paperwork and attending/phoning WFI’s, despite her health problems).

Open-ended sanction imposed, ESA cut to £30 p/w, from £100.15, no prior contact from WP provide (despite their clear guidance to speak/visit vulnerable clients before recommending non-compliance action as I believe it’s called), and no warning from JCP or prior contact either. Sanction imposed from 23.01.14, despite client attending subsequent WFI on 15.01.14. Called DWP and asked for call back from decision maker, finally got hold of someone today who finally agreed that this was incorrect and will revise the decision to sanction.

One thing that I was unaware of previously and wonder if anyone can confirm is that DWP told me that whilst support group appeal is ongoing (as in this case), the client cannot be mandated to undertake work-related activity (although can volunteer). Presumably, this is guidance rather than regulations, but anyone point me in the right direction?

Once we’ve cleared this matter up of the sanction, I’m hoping that client will want to pursue some kind of complaint against the WP provider as they seem to have failed to undertake any kind of prior check with her before notifying JCP of alleged breach of WRA, nor does it appear that they notified JCP of her subsequently attending WFI. Indeed, they seem to have conflated attending a WFI with undertaking WRA in the direction that they sent to JCP.

It really worries me how much power is resting in the hands of more or less unaccountable WP providers, the readiness of DWP/JCP to implement sanctions, without any question, on the say so of WP providers, and the utter lack of any line of accountability when things go awry as in her case. DWP effectively said this morning that anyone saying that they were not notified of an appointment will be sanctioned as they “expect” them to have received the notification letter through Royal Mail. Talk about fettering discretion…...

Martin Williams
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Andyp4 - 27 January 2014 11:56 AM

......
See attached CPAG factsheet by Martin Williams

I think the presentation I did at NAWRA shouldn’t be relied upon at this stage to give advice- we have had the Supreme Court decision since then.

I would prefer to link to the article in Welfare Rights Bulletin about this- see here: http://www.cpag.org.uk/content/sanction-busting-part-3

 

Paul_Treloar
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Thanks Martin. (Will this let me post this reply if I make it longer?)

ETA: Answer is yes, wouldn’t let me post the first two words on their own.

shawn mach
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Paul_Treloar - 05 February 2014 09:45 AM

Thanks Martin. (Will this let me post this reply if I make it longer?)

ETA: Answer is yes, wouldn’t let me post the first two words on their own.

apparently the forum can’t handle identical posts ... someone must have thanked martin previously .... where’s that like button?!

Paul_Treloar
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Thanks Shawn

Bryan R
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Hi

These may well help your clients on the work programme, amend as necessary

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neilbateman
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Does this help? DWP’s policy on complaints procedures to be operated by providers, dated May 2013.  Found it by chance on gov.uk website: 

http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/261107/core-briefing-pack-for-providers-complaints-resolution.pdf 

Paul_Treloar
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Thanks both. I had seen the complaints procedure, but client reluctant due to the fact that initial complaint has to be made via the person she’s been dealing with and I think (understandably) she’s of the opinion that this would be equivalent to pouring petrol on burning waters.

nevip
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Although distinguished, the following makes for interesting reading.

http://www.lawgazette.co.uk/law/legal-updates/non-delegable-duty-of-care/5039519.article