Mandatory work related activity

Has anyone come across any claimant(s) who have been given a direction to undertake some specified work related activity? If so, what are they being told to do? We don’t seem to have anyone in this situation yet.

As far as I know their just attending work focussed interviews.  The original plan was for the clients to undergo work focussed health related activity but this was suspended.

I have one client who believed they had been ‘required’ (with the threat of sanction) however as an action plan had never been given/sent to client by their adviser it could not be proven by either side.

Work Related Activity can require ESA WRAG clients to take “reasonable” steps towards work or to prepare for work depending on their circumstances. These are agreed between the customer and the adviser and detailed on the Action Plan. If the customer does not take the specified action, their benefit can be reduced.

However, they cannot require the client to:
•  Apply for a job or undertake work, as an employee or otherwise, or
•  Undergo medical treatment

I am sure there will be several challenges to the definition of ‘reasonable’.
Chaos

The ESA (Work-Related Activity) Regs 2011 [SI 2011/1349] apply from 1.6.11 and are made under WRA s13. See also DMG Memo 15/11. However we have been unable to establish if DWP have actually introduced any additional requirments on claimants in practice over and above the existing requirments to attend a WFI.

Our local JC+ delivery centre / local offices were unable to give any further information of what (if anything) will happen in practice or when it will be introduced - are requiremnts being phased in across the country?

Does anyone have further information about what additional requirments are being impossed?

I have recently had a client in the WRAG who has been told to go on a training course.

Is the decision that the course is reasonable an appealable decision?

My understanding is that a direction cannot be appealed but the claimant can ask for it to be reconsidered. There is also no appeal against the reconsidered decision. If a sanction for failing to carry out the work related activity is imposed the claimant can of course appeal.

This piece of law seems a right pig’s ear: We’ve just started to assist a client whose Action Plan says to apply for work, and to attend the local provider’s training centre every 2 weeks for 2 years! JSA by default. The legislation says at Reg 3 :
  (4) A requirement imposed under paragraph (1)—

(a)must be reasonable in the view of the Secretary of State, having regard to the person’s circumstances; and .
(b)may not require the person to— .
(i)apply for a job or undertake work, whether as an employee or otherwise; or .
(ii)undergo medical treatment.
The use of the word ‘may’ is not the same as the word ‘must’ in this context, but the action plan would appear unlawful. In this case the WFA is being monitored by a contractor. I sense results-based contract has determined the AP’s content rather than the the client’s needs (they also happen to have an assessed need for care for their physical disability, but have been advised that if there is a clash between time of care provision at home and apppointment at training centre, they have to forego their care!!)

“may not” in this context is using “may in a totally different sense than without “not.” Consider the following:

No-one may smoke on trains.

Bicycles may not be left in the corridor.

In other words, you can have a list of what the Action Plan may do, and a second list of what it may not do, so limiting the discretion given in the first list. “May” is being used synonymously with “is allowed to.” That is what is meant here.

One of the confusions here is the increasing use of “may” when “might” is more appropriate. But I grant that there is a difference and hence and ambiguity in some senses. Thus if you read “The Queen may not refuse to give the Royal Assent to the Welfare Reform Bill,” you genuinely do not know whether to read this as “The Queen is not allowed to refuse” or “The Queen has a discretion to refuse and is likely to use it” - almost opposite meanings. In the second case “might” is unambiguous.

That’s lawyers for you - hypersensitive to meaning.

Hmm, I put it to you that:

‘May’ may be ambiguous in general usage, or may not be.

‘May not’ may not be ambiguous when it clearly does not mean ‘may’

In other words, ‘may’ means that you can choose to do, or not to do, something.

‘May not’, as an instruction, means that you do not have that choice and must refrain from the action.

I am about to write a letter asking for a reconsideration of a action plan.  Do I send the letter to the local ESA BDC or the local jobcentre?

iut044 - 22 November 2012 09:51 AM

I am about to write a letter asking for a reconsideration of a action plan.  Do I send the letter to the local ESA BDC or the local jobcentre?

Local jobcentre as it is the HDEA who sets out the action plan.