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IM v SSWP, work-related activity and ‘soft skills’

 

past caring
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Welfare Rights Adviser Southwark Law Centre Peckham

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Represented in an ESA appeal a few months back where regulation 35 was in issue. Secretary of State’s response was to include the attached list of ‘soft-skills’ in the appeal bundle as the list of the available work-related activity in the area.

I was incredulous and in our reply argued that IM had not been complied with and that this could not possibly be the complete list of work-related activity available in the area and that a claimant could be mandated to do. The judge wasn’t wearing this, though and stated the ‘tribunal could only take into account the information provided by the DWP’. We ended up losing on the reg. 35 point (though client did end up in WRAG) but I didn’t pursue it because the client had made a UC claim long before being referred to us and within three weeks of the original ESA termination - so any potential ‘returns’ did not justify the effort of a leave application and possible UT appeal…..

......but the issue has continued to bug me.

Speaking to other advisers in other agencies locally, it seems that they too are encountering the ‘soft skills’ response to the requirements imposed by IM. I haven’t entirely discounted dishonesty being behind this, but it strikes me as more likely that either previous contracts for work programme providers have expired in South-East London (so there aren’t any currently) or - more likely - in an effort to get the UC project to run smoothly, a decision has actually been made not to impose anything more onerous than this ‘soft-skills’ nonsense for the time being.

On the one hand, that could be seen as a good thing. But on the other, it does mean that it is going to be nigh on impossible for a claimant to get into the support group via reg. 35. Which again might be fair enough (they aren’t being mandated to undertake activity that might give rise to substantial risk) but for the fact that if the Department can - apparently on a whim - decide that nothing more onerous than soft skills will be required, the reverse must also be true; one week you’re just having to make sure that you get up by noon every day and check the odd bus time table (or at least say that’s what you’ve been doing if they bother to ask) and the next Herr Flick up at the Jobcentre has mandated you to spend three days a week down the local Sue Ryder shop sorting through the smelly knickers.

That can’t be right, can it? Thoughts? I suppose I am particularly interested in;

a) at what level will the decision to impose ‘soft-skills’ only have been taken?
b) at what level will a decision to revert to type be taken?
c) what degree of notice/publicity is required when and if decision b) is made?
d) what safeguards might be required if decision b) is made?

And finally, if a decision to mandate more onerous work-related activity could be made at any time, but all that is currently available is the ‘soft-skills’ nonsense, can an IM type argument still be run?

      [ Edited: 13 Mar 2018 at 05:56 pm by past caring ]

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Julie1
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Nottingham City Welfare Rights Service

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I had noted this was happening a while ago and the previous lists that were produced at the back of submissions were replaced with these kind activities while the DWP submission actually said that there had been not substantive change since 2011.  My approach to this was to produce therefore the previous list and use this to frame the arguments re reg 35 on the basis that my their own admission this had not changed so was presumably still valid.

There is a list now in the appendix of DMG Memo 1/18 and ADM Memo 2/18.  Which provides a more realistic appraisal of WRA.  In cases I have pending I have sent this to the appeals service suggested that they use this list as the DWP seem to be suggesting this is more representative of what a claimant may be asked to do.

Not had the case heard yet as still awaiting a tribunal date.

Thanks

Rob S
NCCWRS .

     
Billy Durrant
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The Brunswick Centre, Kirklees & Calderdale

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Same issue here https://www.rightsnet.org.uk/forums/viewthread/12158/

Am waiting on set aside request/application to UTT x 2. Interesting to note your tactics Rob, think that I will try that next time.

     
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Welfare Rights Adviser Southwark Law Centre Peckham

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Cheers Rob - very useful.

If I understand the DMG 1/18 memo correctly,

“Where the Jobcentre Plus Offer WRA list is included, the appeal response should explain that the types of WRA included are available throughout GB. Where reference in the most demanding WRA list is made to attending courses, it is not possible to provide evidence of what courses are available in the claimant’s area, due to the way in which information about courses is recorded.”

then the JC+ WRA offer is available throughout the UK - i.e. all of the activities included in the appendix. I have understood that correctly? because if I have, the Department has misled the tribunal in my case…..

     
Rosie W
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I have two at appeal at the moment which both contain this exact wording:

“There are different types of work related activity that may be available to you. I have to consider what types of work related activity from that list it is considered that you might reasonably be expected to undertake. An example of the least demanding type of work related activity could be to make a list of your hobbies, things you enjoy doing and things you used to enjoy doing.”

And:
“The most demanding type of work related activity could be to research local self help centres appropriate to your condition. Keep a log of any research you do or contact you make.”

There isn’t even a copy of “that list” attached. In both cases the sentences are in the MRN and are just referred to in the response without anything further.

     
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Obligations as set out in IM clearly not complied with then - and an attempt to mislead the tribunal to boot.

     
Mr Finch
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I suppose the cynical view would be that they have decided too many people are in the support group, and they would rather give up being able to insist on work-related activity than allow that to continue.

I think there are questions as to the lawfulness of it. The legislative structure is supposed to be two different groups in terms of activity demanded and not just payment, so surely a blanket withdrawal of all meaningful activity is outside a reasonable range of discretion.

     
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Possibly - but that isn’t quite what has happened. The memos make it clear that the ‘Jobcentre Plus Offer’ is available ‘throughout GB’. It follows that a person in the work-related activity group can be mandated to carry out any of the activity in that offer - even if, in practice and for a temporary period, local Jobcentres may not be mandating the full range of activity. That being so, the Secretary of State is obliged by IM to provide the full list of work-related activity available and not just a heavily edited version that entirely misrepresents what can be required of a claimant - i.e. the list I provided in my original post.

I should say that the additional information that has come to light as a result of posting this thread (i.e. the memos) made me reconsider the decision not to seek leave - and I did this at the end of last week even though the application was then just over a week late.