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Court of appeal to decide whether government employment schemes constitute forced labour
The court of appeal will on Tuesday judge whether government employment schemes constitute forced labour and if tens of thousands of unemployed people will still be entitled to compensation after being wrongly sanctioned by the Department of Work and Pensions.
In a 50-page ruling last August judge Justice Foskett dismissed claims by two jobseekers that the government’s back-to-work schemes amounted to “forced labour”. Lawyers acting for the government and two unemployed complainants returned to the courts in December to appeal different aspects of the findings ...
http://www.guardian.co.uk/society/2013/feb/12/judgment-unpaid-work-schemes
Graduate Cait Reilly wins claim at Court of Appeal that making her work for free at Poundland breached laws banning slavery & forced labour
More on the ruling now available on the Guardian live politics blog.
Lawyers says claimants sanctioned for not doing Work Prog now entitled to get benefits back
Meanwhile DWP Press Office has been furiously taking to twitter in response…
Re #workfare verdict - judgment confirms it is right we expect people to take getting into work seriously if they want to claim benefits
Re #workfare verdict - we are however disappointed and surprised at the court’s decision on our regs and will appeal
Re #workfare verdict - there needed to be flexibility so we could give people the right support to meet their needs and get them into a job
Shiv Malik of the Guardian has drafted a short piece on this judgement now, selected edits below.
The government’s employment strategy lies in tatters after judges declared that almost all work-for-your-benefit schemes were unlawful due to a lack of basic information given to the unemployed.
A three-judge panel at the royal courts of justice ruled that the secretary of state for work and pensions had acted unlawfully by not giving the unemployed enough information about the penalties they faced and their rights to appeal against being made to work unpaid for, in some cases, hundreds of hours.
The court ruling means tens of thousands of unemployed people who have been sanctioned under schemes such as Work Experience and the Work Programme are entitled to a rebate. However the Department for Work and Pensions (DWP) said it would not be paying out money until all legal avenues had been exhausted.
On Tuesday morning the DWP issued fresh regulations that would abide by the new judgment. The court refused the government leave to appeal but the DWP said it would take the matter to the supreme court.
For the whole article, see Graduate’s Poundland victory leaves government work schemes in tatters
Statement from the solicitors involved - The effect of the judgment is that all those people who have been sanctioned by having their jobseeker’s allowance withdrawn for non-compliance with the Back to Work Schemes affected will be entitled to reclaim their benefits. And until new regulations are enacted with proper Parliamentary approval nobody can be compelled to participate on the schemes.
Mixed reaction, as you would expect, from the media to yesterday’s decision.
A GRADUATE’S legal victory over a “slave labour” work experience scheme is an an insult to real slaves, welfare chief Iain Duncan Smith declares today.
The Work and Pensions Secretary was “astounded” after judges ruled the scheme illegal. Writing in today’s Sun, below, Mr Duncan Smith says: “Back-to-work schemes are successful and not slave labour. To compare work experience to slave labour, as this case did, is hugely insulting to people living in oppression and sneers at hard-working taxpayers who pay for benefits.”
Iain Duncan Smith, the Work and Pensions Secretary, is said to have been left “frustrated” after Cait Reilly, a university graduate, won a Court of Appeal claim that requiring her to work for free at a Poundland discount store was unlawful.
Senior Government sources have labelled the court’s decision as “odd” and said they want to toughen up the rules despite the criticism from the judiciary. Ministers are now expected to in the coming weeks outline plans to extend the use of sanctions and mandatory work for the unemployed.
The Government expressed “disappointment and surprise” at the decision but immediately introduced new regulations to ensure that the work schemes can continue despite the ruling. Officials are expected to appeal to the Supreme Court against the decision.
A spokesman for the Department of Work and Pensions said they have “no intention of giving back money to anyone who has had their benefits removed because they refused to take getting into work seriously”.
Ministers extend back-to-work schemes despite court ruling that they are unlawful - Telegraph
Thousands of unemployed people could be entitled to financial rebates totalling millions after judges in the court of appeal declared that almost all of the government’s “work-for-your-benefit” employment schemes were unlawful.
Civil servants at the Department for Work and Pensions (DWP) scrambled to issue new regulations following the ruling of a three-judge panel at the Royal Courts of Justice.
The court ruling means tens of thousands of unemployed people who have had benefits docked for not properly taking part in schemes such as work experience and the work programme are entitled to a rebate. However the DWP said it would resist paying out rebates until all legal avenues had been exhausted.
“We have no intention of giving back money to anyone who has had their benefits removed because they refused to take getting into work seriously. We are currently considering a range of options to ensure this does not happen,” a DWP spokesperson said.
Poundland ruling ‘blows big hole’ through government work schemes - Guardian
A court ruling that a jobless graduate was unlawfully forced to do work experience at Poundland could lead to benefit claimants demanding compensation totalling more than £40million, it emerged today.
Work and Pensions Secretary Iain Duncan Smith called the ruling ‘utter madness’ and said he had ‘no intention’ of paying compensation to any claimant who declined to join a scheme and had their benefits docked as a result.
Ministers also announced an immediate legal appeal and pushed emergency regulations through Parliament to prevent the schemes collapsing. Letters were being sent to one million benefit claimants last night warning them that the ruling did not mean they could pull out of work placements.
Taxpayers could face a multi-million pound compensation bill after Government “workfare” schemes which make the jobless graft for their benefits were ruled illegal today.
Up to 150,000 people who have had welfare payments docked for refusing to take part could be in line for a payout according to lawyers who brought two test cases.
Tories’ forced work outlawed: Court of Appeal rules “workfare” schemes are illegal - Mirror
The Jobseekers’ Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (S.I., 2013, No. 276) were presented to the House of Commons by Iain Duncan Smith yesterday, although I understand that the actual document isn’t published until sometime tomorrow.
Scroll down to the bottom, Appendix 4 refers: House of Commons Votes and Proceedings Tuesday 12th February 2013
I have a copy of the new regs.
According to the front page, they were made on 4.19pm on the day of the Court of Appeal judgement, laid before parliament at 6.15pm the same day, and came into force at 6.45pm.
If I remember rightly, statutory instuments that require parliamentary approval have to be laid before parliament for 30 days, not 30 minutes. This looks like a deliberate attempt to prevent any debate or objection to the new regulations.
What I can’t figure out from reading them is to what extent the mandatory work scheme is still in place. it is not referred to in so many words. The regulations refer to, in paragraph 3:
-Day One Support for Young People
-the Derbyshire Mandatory Youth Activity Programme
-Full Time Training Flexibility
-New Enterprise Allowance (self employment)
-the sector-based work academy
-skills conditionality
-the Work Programme
None of the descriptions of these corresponds to the schemes which required people to work for free for commercial companies for four weeks, or for six months for voluntary organisations. Unless this is covered by the Skills Conditionality scheme, which is rather vague : “a scheme comprising training or other activity designed to assist a claimant to obtain skills needed to obtain employment”. The “other activity” isn’t defined.
However, the biggest problem with workfare schemes seemed to be that jobcentre staff frequently misapplied their own guidance, as well as the regulations, and blackmailed people into going on schemes that they were not eligible for, or made out the schemes were voluntary only for the claimant to subsequently get a letter to tell them the scheme was mandatory under threat of having their benefits stopped.
I’d like to hear from anybody else who has taken a close look at the new regs and knows what they imply.
I think that the answer is that the 2011 regulations that were struck out had provided:
“The Employment, Skills and Enterprise Scheme” means a scheme within section 17A (schemes for assisting persons to obtain employment: “work for your benefit” schemes etc.) of the Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search.”
It seems that it was under the auspices of this vague piece of legislation that both claimants had been told that they needed to attend their respective work experience placements, at threat of benefit sanctions for non-compliance. At para.40 LJ Pill notes that:
No schemes are described in the regulations, Miss Lieven submitted, still less schemes with a prescribed description. What the Secretary of State has done in the Regulations is simply to name a scheme, “Employment, Skills and Enterprise Scheme”. Beyond repeating the heading to section 17A, the Regulations provide merely that the scheme named in the Regulations is a scheme of a prescribed description within the meaning of section 17A. That amounts to a claim, submitted Miss Lieven, that a prescribed scheme is anything the Secretary of State says it is. The Secretary of State then claims to be free to make any arrangement he sees fit. Far from a scheme or schemes of a prescribed description being specified in the 2011 Regulations, the Secretary of State can make arrangements administratively for schemes of any description. Parliamentary oversight, or “Parliamentary control”, the heading to section 37 of the 1995 Act, is defeated.
He goes onto say in his conclusions that (para.51):
Having said as much, this is a question of statutory construction and I am unable to conclude that the statutory requirement for the Regulations to make provision for schemes of a prescribed description is met in regulations 2 and 3 of the 2011 Regulations. Simply to give a scheme a name cannot, in context, be treated as a prescribed description of a scheme in which claimants may be required to participate, within section 17A(1). I accept the submissions of Miss Lieven on ground 1.
That much is certain - the regulations did not properly prescribe the nature of the schemes that the claimants were sent on. In Ms Reilly’s case, this was the sector-based work academy - this is covered by reg.3(6) of the new regs. With Mr Wilson, he was required to participate in a Community Action Programme (CAP), which is run under the auspices of the Work Programme - this is covered by reg.3(8) of the new regs.
The latter case is quite an interesting one. The new regs give a definition of what the Work Programme is in a very broad-brush way:
8) The Work Programme is a scheme designed to assist a claimant at risk of becoming long-term unemployed in which, for a period of up to 2 years, the claimant is given such support as the provider of the Work Programme considers appropriate and reasonable in the claimant’s circumstances, subject to minimum levels of support published by the provider, to assist the claimant to obtain and sustain employment which may include work search support, provision of skills training and work placements for the benefit of the community.
The CAP scheme appears to me to have been introduced without any legislation whatsoever - it is merely caught under vague provision of “support” in the relevant regulation.
Therefore, I do wonder whether the creation of CAP schemes and similar, under the overall umbrella of reg.3(8) definition of what the Work Programme is, will still fall foul of LJ Pill’s ruling at para.51?
[ Edited: 19 Feb 2013 at 10:23 pm by Paul Treloar ]Has the judgement been published yet. As I haven’t yet read it I’m left wondering where we are with the forced labour and article 4 arguments.
You can find the judgement here Queen (on the application of) Caitlin Reilly and Jamieson Wilson v Secretary of State for Work and Pensions
Our latest blog touches on the issue of Article 4 The truth is out there somewhere (although it’s more looking at the reaction on twitter to the verdict).
In a nutshell, Judge Pill didn’t accept those grounds - para 65-67 refer.
also see rightnet news story from 12 feb which gives analysis of decision and provides link -
cheers ros
Thanks guys. That’s rather disappointing. Ah well! As the HRA is a ‘living instrument’ then perhaps, one day?
Thanks guys. That’s rather disappointing. Ah well! As the HRA is a ‘living instrument’ then perhaps, one day?
In some ways, his rather brief reasons do provide some optimism that another challenge may be possible, because he only appears to have considered the issue of “work experience” schemes within the remit of the legislation and regulations, rather than any wider context. If he’d offered something more definitive that ruled against Article 4 being engaged, a subsequent case could have been much more difficult to bring I think.
Jobseekers (Back to Work Schemes) Bill introduced to parliament to avoid need to repay claimants whose sanctions were made under regulations found to be unlawful by Court of Appeal and to allow sanctions in cases that have been put on hold since Court judgment -
here’s link to Bill -
http://services.parliament.uk/bills/2012-13/jobseekersbacktoworkschemes/documents.html
and rightsnet news story -