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What is work-related activity?
I guess we all find ourselves arguing Reg 35 at appeal tribunals, to varying degrees of success.
But what exactly is work-related activity, or does it change so often that it’s hard to tie it down?
In Judge Boyd’s presentation to the Somerset Advice Network, which someone else flagged up a while ago, it’s not felt to be anything more than ‘about five interviews per year’. (I tried to post the link, but it didn’t work. You can find it by google)
I’ve assumed it’s more than this, and would touch on preparing CVs, attending interviews and the like.
My colleague Mr Birks, formerly of this parish, thinks he’s found an Upper Tribunal Judge who’s said it’s described like this:
Work-related activity might include such activities as:
- work tasters; - programmes to manage health in work;
- jobsearch assistance - programmes to assist in stabilising a person’s life.
So is there a better guideline available as to what it is? And will it have changed in a few months’ time anyway?
It would be useful to be able to put something definitive in front of a tribunal now and again.
This brief summary from Newcastle Welfare Rights is useful maybe?
The statutory definition is “activity which makes it more likely that the person will obtain or remain in work or be able to do so.” (section 2D of the Adminstration Act 1992)
The two things that are not work related activity are actually looking for work and work itself, other than say voluntary or exempt work. I have heard personal advisers describe all sorts of things this way, especially for people with mental health problems, as work related activities: even, say, joining a club, or simply leaving the house once a week to go and have coffee with a friend. If it moves you closer to being in a position to think about working, it’s work-related activity.
“Work-related activity” is defined in s. 13(7) of the Welfare Reform Act 2007:
In this Part, “work related activity”, in relation to a person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.
I guess that covers all bases.
Slightly off topic, as it relates to UC, but the WRA 2012 includes in the definition of a ‘work preparation requirement’ (as well as a similar general rule to that Ruth posted above) this frankly bizarre level of detail:
‘(3)Action which may be specified under subsection (1) includes in particular—
(a)attending a skills assessment;
(b)improving personal presentation;
(c)participating in training;
(d)participating in an employment programme;
(e)undertaking work experience or a work placement;
(f)developing a business plan;
(g)any action prescribed for the purpose in subsection (1).
(4)In the case of a person with limited capability for work, the action which may be specified under subsection (1) includes taking part in a work-focused health-related assessment.’
From s.16 WRA 2012
‘Improving personal presentation’?? Are the nudge unit trying to convince Joe newspaper reader that people with limited capability for work should cut their hair and (then they’ll) get a job, perhaps?
Slightly off topic again - but this issue drives me mad. Why can’t Jobcentre Plus actually produce some decent literature (preferably a DVD) to explain to their ‘customers’ what WRA means - including examples of success stories? The general impression out there on the streets is (a) being forced to get a job or (b) some form of punishment/sanction (and I agree that there may be issues with some Work Programme providers). Nobody is counting the cost to the NHS of the stress (especially to people with mental health conditions) that this lack of information causes. JCP will tell you that their advisers will explain on an individual basis - no problem with that, but meanwhile those waiting for WCAs etc. get agitated. Perhaps senior DWP policy makers are more than content with the fear factor as some people will go off and get work (or disengage) before a WCA, but it’s a very odd way of encouraging people to take positive steps where they can.
I was questioned on this issue at a recent Tribunal - they were considering reg 35 and were asking me what the client would be expected to do if placed in the WRAG.
Having been put on the spot I obviously had to choose my words carefully. I stated that at the least they could be expected to attend WFIs at somewhere around the 5 in a year figure stated above. However I also stated that many claimants are being referred to the Work Programme and at that end of the spectrum they can be doing f/t work experience. I pointed out that ESA WRAG claimants can be sanctioned for failing to carry out work related activities.
I didn’t feel I had the width or depth of experience to directly criticise the WP scheme. But I did feel comfortable stating that it was a new scheme and that as such teething problems were inevitable. I also felt able to say that the general direction of policy at the moment is to get many WRAG members more active.
This was all sprung on me and so I was only really able to speak very generally. But a quick browse has found the following link
http://www.dwp.gov.uk/docs/wp-pg-chapter-2.pdf
It is bang up to date (01/10/12) and part of the DWP guidance to Work Providers. It lists which groups can be mandated to take part in the Work Programme and at what point in their claim this should be done. Note that this guidance states that ESA claimants cannot be mandated to take part in work experience. This is a departure from other chapters which were drafted earlier and were less clear on this issue. Importantly claimants who have been assessed as having a return to work date of 12+months (information that is not given to successful claimants) cannot be mandated to the WP. People assessed as being able to return in 3-6 months can be mandated from the date of their WCA.
The full guidance is at the link below - as above note that some chapters appear to be older than others.
Don’t let tribunals assume that WRAG members will only have to attend a few cosy WFIs. The situation for many will be a long way from this.
That is really helpful Sam, thanks.
However, today’s WRA 2012 commencement order (SI 2530/2012 - news story about it on Rightsnet with link) includes the commmencement of s.55 from 3 December - work-experience or a work placement can be included as work-related activity for ESA claimants from that date.
Thanks for that Jon. I was confused myself when looking at the guidance as I couldn’t reconcile it with all the fuss about people on ESA being forced to do work experience on pain of being sanctioned. Now I know that it just hadn’t quite been brought in yet… :(
However, today’s WRA 2012 commencement order (SI 2530/2012 - news story about it on Rightsnet with link) includes the commmencement of s.55 from 3 December - work-experience or a work placement can be included as work-related activity for ESA claimants from that date.
If anything that may actually help us get more people into the support group, at least when we’re arguing the point at tribunals. Robbo mentioned Reg 35 in his original post. Tribunals are not yet at the stage of asking for a Charlton type range of work-related activity that a claimant might do. However, the wider the definition of WRA the easier it might be to submit that there is increased risk of the client being sent on inappropriate WRA that would in turn cause a substantial risk to their health.
However, in my experience the reasons for finding Reg 35 satisfied are rarely related to a particular type of WRA. After all, if someone has a social phobia they pretty much cannot do most WRA. And that “most” shouldn’t be overlooked either. The fact a person may be able to do “some” WRA, increasingly likely if the threshold is as low (and as vague) as “improving personal presentation” as per the earlier post, shouldn’t mean they no longer satisfy Reg 35. It’s worth reminding ourselves that the test is of “limited” capability not “no” capability to do work-related activity. It’s perfectly possible I think for claimants to get into the support group under Reg 35 on the basis that they couldn’t reasonably regularly do the types of WRA that would be expected of them. And when the arbiters of what is appropriate WRA are the likes of A4E it may make our job in persuading tribunals easier.
Thanks for the range of very helpful and thought-provoking responses. Much appreciated.