#Workfare: illegal benefit sanctions a breach of human rights, a “terrifying threat to civil liberty” and @UKLabour’s support for this “brutal, unforgivable attack on vulnerable people”

DWP minister Alok Sharma announces a Remedial Order[1] to amend the Jobseekers (Back to Work Schemes) Act 2013, which the Joint Committee on Human Rights (JCHR) will scrutinise. This concerns 231,000 claimants and the Cait Reilly and Jamie Wilson Poundland workfare litigation and forced-labour conscripts being illegally punished with an average of £550 of benefit sanctions. The Supreme Court found sanctioned benefit claimants did not get the right to a fair hearing to challenge sanctions and therefore the DWP breached of Article 6 (Fair Trial) of the European Convention on Human Rights.

This highlights a dark day in Labour Party history when it had supported Tory and Libdem retrospective legislation to deny claimants the right to be repaid illegally sanctioned benefits.

“The Government has effectively declared that it is above the law. “The precedent is a terrifying threat to civil liberty,” says classical liberal think-tank Civitas. “The entire concept of ‘Rule of Law’ is undermined as soon as the government starts to cover its back like this.”
Owen Jones: ‘Workfare: Why did so many Labour MPs accept this brutal, unforgivable attack on vulnerable people?’Independent – Wednesday 20 March 2013

The JCHR scrutiny and a Remedial Order  will probably only mean a “small”  number of claimants that “had” lodged a “live appeal” against workfare sanctions should get a refund, despite the retrospective law seeking to deny such. Rather than the 231,000 affected by the illegal sanctions.

“The proposed draft Remedial Order ensures the right to a fair hearing for a small group of job seekers who had a live appeal against a sanction decision made under the Jobseeker’s Allowance (Employment, Skills and Enterprise Schemes) Regulations 2011 (“the ESE Regulations”) when the 2013 Act came into force. It enables the Secretary of State for Work and Pensions to change this sanction decision and refund the amount withheld, without those affected individuals having to continue with their appeal.”
Jobseeker’s (Back to Work Schemes) Act 2013: Written statement – HCWS807 – 28 June 2018

Join Boycott Workfare‘s campaign against forced-unpaid-labour and sign up to Keep Volunteering Voluntary.

Footnote:

[1] “A remedial order is a form of delegated legislation which seeks to correct a miscalculation or imbalance between UK law and the European Convention on Human Rights.” https://www.parliament.uk/site-information/glossary/remedial-orders/

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#UniversalCredit: McVey may appeal landmark court ruling on DWP’s disability discrimination

McVey “I am currently considering whether I will be applying to appeal on the one point that the court found against the Department”
DEP2018-0612 25-06-2018 Commons – Letter dated 25/06/2018 from Esther McVey MP to Debbie Abrahams MP regarding a High Court decision [pdf] on severely disabled people transitioning to Universal Credit.

Extract of 25/6/18 McVey letter: (full text – pdfplain text – .doc)

SoS_to_Debbie_AbrahamsHighlightedCropped.png

Background: ‘First legal challenge against Universal Credit finds Government acted unlawfully‘, ‘Disabled men on universal credit discriminated against, high court rules” and ‘Landmark judgment rules Department for Work and Pensions unlawfully discriminated against two severely disabled men who had benefits dramatically reduced when they claimed universal credit

Full ruling: ‘R (TP and AR) -v- Secretary of State for Work and Pensions (Universal Credit)‘ – download pdf.

Source: Deposited papers
DEP2018-0612 25-06-2018 Commons
Letter dated 25/06/2018 from Esther McVey MP to Debbie Abrahams MP regarding a High Court decision on severely disabled people transitioning to Universal Credit. 2p.
HC Debate 21/06/2018
Corporate Author: Department for Work and Pensions

Join Boycott Workfare‘s campaign against forced-unpaid-labour and sign up to Keep Volunteering Voluntary.

Mandatory Workfare and Sanctions: Now for Universal Credit claimants

Many still seem to think mandatory workfare does not exist, whilst this does seem to be the case for Jobseekers Allowance, in so far as no benefit sanctions appear to apply in relation to Work Experience or Work Placements. [1]

However, Benefit Sanctions do apply to Universal Credit (UC) workfare under Section 16(3)(e) of the 6 year old 2012 Welfare Reform Act.

Section 16(3)(e) WRA 2012 is used for the 3 month Youth Obligation ‘Guaranteed Work Experience’ placements, but recently the DWP backtracked applying Benefit Sanctions for refusing to start such placements without ‘good cause’. But it is unknown how many unlawful sanctions got applied before the apparent ‘error‘ was acknowledged.

The UC Advice for Decisions Makers ‘Chapter K5: Low level sanctions’ states:

“K5062
Although participation in work experience is
voluntary, the Secretary of State can
mandate the claimant to apply for, attend
& start a work experience placement as
part of a work preparation requirement”
[In accord with Section 16(3)(e) WRA 2012]
Advice for decision making: staff guide – Accessed 22/06/18 (download pdf)

There is of course ‘voluntary’ workfare, which involves hundreds of thousands [2] of zero wage work placements, including 27,800+ within Jobcentres and the DWP. There is a myriad of workfare schemes, such as 6 month placements on Traineeships and Sector Based Work Academies.

In past anti-workfare campaigning 3 events are of note, in terms of public awareness and media attention: The Occupation of Tesco’s Westminster, The Cait Reilly and Jamie Wilson v DWP litigation and of particular relevance to this Universal Credit context
was ex DWP Minister Chris Grayling being challenged live on Channel 4 with “proof of mandatory work experience“(Ditto K5062), when he claimed it was “purely voluntary”. When in fact, if a claimant did not attend and start a mandated work experience (WE) placement , without ‘good cause’, they would get a benefit sanction. This situation led to many employers withdrawing from Jobcentre led WE schemes. K5062 above, outlines
benefit sanctions in exactly the same way, but now with negligible media interest, protesting or campaigning against.

The reason why workfare may get less exposure than the past, is direct action street protests no longer happen and media attention is minimal and the term workfare does not have the traction it once did. There has also been very few attempts to name and shame employers exploiting UC workfare conscripts and allied to that is a drop in Freedom of Information requests for the names of workfare exploiters. One example is the lack of any real focus on the DWP’s 14 month old Youth Obligation and it’s integrated workfare, one part of which is called ‘Guaranteed Work Experience’ lasting 3 months.

One key reason why workfare now goes under the radar of campaigners and commentators maybe based on the fact that placements are now mostly organised through Jobcentres, rather than how DWP contractors once did for the Mandatory Work Activity and Community Work Placement schemes who kept accessible records of workfare exploiters.

Another issue is how evidence of workfare exploiting employers are hidden in individual benefit claimants’ Claimant Commitments, so less discoverable via FOI requests. This may be a key explanation why the mandatory Youth Obligation keeps a paucity of data and recording on its claimant activity, outcomes and destinations. Even so the DWP does have liaison staff seeking employers to offer workfare and individual Jobcentres also maintain such liaison, so therefore it could be worthwhile making FOI requests covering such.

“Definition of youth obligation

Young people, aged 18 to 21, who receive Universal Credit will be required, from April 2017, to participate in an intensive regime of support from day one of their benefit claim.

After six months they will be expected to apply for an apprenticeship or traineeship, gain work-based skills, or go on a mandatory work placement to give them the skills they need to move into sustainable employment. ”
Financial Times -“Youth Obligation” ft.com/lexicon – Accessed 22/06/18

Charlotte Hughes has spent years supporting and being in solidarity with claimants and protesting against Universal Credit, alongside fellow members of Tameside Anti Cuts, outside the Ashton under Lyne Jobcentre. This leads to thinking, that one way to discover the employers exploiting workfare would be to ask claimants outside Jobcentres.

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90% of claimants are still on ‘legacy’ benefits like JSA, ESA and HB. Now that plans are afoot to migrate them all to Universal Credit, the implications of Section 16(3)(e) WRA 2012 may provoke…………

There are also two private members bills seeking to curtail “unpaid trial shifts” and “Unpaid Work Experience“.

A last thought is how Section 16(3)(e) WRA 2012 workfare can also apply to people already in paid employment, just like sanctions are being used for claimants in the UC in-work pilot.

Join Boycott Workfare‘s campaign against forced-unpaid-labour and sign up to Keep Volunteering Voluntary.

Footnotes

[1] Decision Makers Guidance Chapter 34 Sanctions

[2] 500000

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DWP says: ‘Find A Job’ findajob.dwp.gov.uk can be used with “cookies turned off”?

[All FindAJob updates and resources]

Unlike Universal Jobmatch the DWP states that it’s replacement
Find A Job (FAJ) site can be used with “cookies turned off”.[1]

FAJ: “You can still use this service with cookies turned off.
https://findajob.dwp.gov.uk/cookies.html (accessed 12/6/18)

Jobmatch: “If you turn cookies off, you won’t have access to many features of this site.
https://jobsearch.direct.gov.uk (accessed 12/6/18)

Whilst it is perfectly possible to “use” FAJ as a search engine to look for jobs and then apply for jobs that link to another site it is not possible to apply for a job that requires an
FAJ account, unless the site visitor accepts the FAJ “authentication” cookie:

“…the auth cookie – that is placed after you sign-in –
contains a token that tells us that you are signed in and
enables us to fetch your account details / uploaded CV’s /
saved email alerts etc.”
https://findajob.dwp.gov.uk/cookies.html (accessed 12/6/18)

FAJ cookie name Purpose Expires
auth Helps identify you after you’ve signed in when you close your browser

Even though an “authentication” cookie may not require user consent [2] because
they are “essential to provide an online service at someone’s request”, FAJ requires consent to place all the other FAJ cookies on a users device, therefore setting a browser to block cookies [3] will also block “authentication” and therefore it will not be possible
to sign-in and then set up an FAJ account [4], create a profile or upload a CV.

“Whilst you can browse the site with cookies turned off, you will need to allow cookies in order to log-in to your account.”
FOI request annotation: Email from DWP, dated 14/6/18 (accessed 14/6/18)

In situations when the DWP could mandate FAJ use, setting up an account, signing in, creating a profile and uploading a CV, benefit claimants can only be required to do so on a Jobcentre internet access device (IAD).

With the FAJ’s forerunner Universal Jobmatch (UJ), the DWP had suggested that when it had mandated use of a Jobcentre IAD to carry out Work Search or create a UJ account, a profile and upload a CV, it did not [5] need user consent to place cookies on the IAD.

However, this FOI request [6] , asks whether an IAD user could block all cookies from being placed on an IAD they use and not face sanctions as doing so meant they could not undertake all of the mandated IAD activities.

“If a website provides the option to consent or otherwise to a website’s cookie policy,
then the ability to do so is in the hands of the user of the (IAD) device. The customer can either accept or reject a website’s policy.” [emphasis added]
FOI request VTR/393 of 20.02.13: ‘EU e-Privacy Directive and Internet Access Devices‘ (accessed 14/6/18) [7]

Crucially the DWP cannot mandate FAJ when a claimant is able to use another or more appropriate jobsite deemed “suitable”[8]:

Q: To ask the Secretary of State for Work and Pensions, whether use of the new Find a Job website will be compulsory for claimants of (a) jobseekers allowance and (b) universal credit.
 Asked on: 15 May 2018

A:Use of the Find a job website is not compulsory for claimants of Jobseeker’s Allowance (JSA) or Universal Credit (UC). JSA and UC claimants are asked to create an account and upload a Curriculum Vitae (CV) on Find a job or another jobsite when they make a new claim. If a claimant creates an account using a jobsite other than Find a job, it must be one that is deemed to be suitable by the Work Coach.”
Answered by: Alok Sharma – Answered on: 22 May 2018 [emphasis added]

Edit: Updated on 14/6/18 with references to not being able to sign-in without accepting the “authentication” cookie and references to past views by the DWP on cookies and Universal Jobmatch.
Join Boycott Workfare‘s campaign against forced-unpaid-labour and sign up to Keep Volunteering Voluntary.
Footnotes
[1] GDPR “(30) Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them.”
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016R0679&from=en
[2] “There is a requirement…totell users about cookies and what you are going to use their information for; and obtain their consent to the placing of the cookies..”
https://www.aboutcookies.org/cookie-law/
PECR: Cookies and similar technologies
GDPR “(32) Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided.”
tvguide
[3] Block cookie and online identifiers
[4] It is possible on the ‘Create account‘ page to “Enter your email and create a password”. However, it is not possible to sign-in with these details unless the “authentication” cookie is accepted.

“In response to your first question, DWP considers that regulation 6 of the Privacy and  Electronic Communications (EU Directive) Regulations 2000 does not require DWP to obtain the consent of the user where cookies are placed on a device and have been accepted by the subscriber. DWP holds legal advice on this matter but is not required to disclose it because  section 21 of the Freedom of Information Act 2000 applies (legal professional privilege)”

See footnote [2] for more on the Privacy and  Electronic Communications (EU Directive) Regulations 2000 (PECR)

[7] FOI reply  VTR/393 of 20.02.13: ‘EU e-Privacy Directive and Internet Access Devices
Whilst the language in this FOI reply is not very plain, I understand it to mean a user of a Jobcentre IAD can change the settings of the IAD’s Firefox browser to block all cookies relating to FAJ or any other site.
As “The GDPR sets a high standard for consent.” and the Data Protection Act (2018) has only just got Royal Assent the DWP may now have to ensure IAD users cannot be punished, with a benefit sanction, if they do not consent to cookies being placed on an IAD they use. However, this is just a personal view and it may have to be tested through a social security tribunal, if a claimant is sanctioned as a consequence of not being able to comply with a Jobseeker Direction or Claimant Commitment requirements due to them blocking FAJ or other site cookies on an IAD.

[8] “Whether Indeed or Total Jobs are appropriate websites will depend on the

type of work each claimant is looking for and the vacancies displayed on
those sites.”
FOI 2388 reply of 4 June 2018
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DWP’s secret watch-list of who on Social Media it monitors – like DPAC @Dis_PPL_Protest

Today the DWP released it’s secret list of activists, campaign’s, journalists and individuals it keeps a close eye on. The influence Disabled People Against Cuts (@Dis_PPL_Protest) has is reflected in the fact it is the only activist led campaign currently listed by the DWP as subject to monitoring.

Full list

 

 

Join Boycott Workfare‘s campaign against forced-unpaid-labour and sign up to Keep Volunteering Voluntary.

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DWP Minister: “Use of the Find a job website is not compulsory for claimants of Jobseeker’s Allowance (JSA) or Universal Credit (UC)”

[All FindAJob updates and resources]

[Edit] DWP Minister: “Use of the Find a job website is not compulsory for claimants of Jobseeker’s Allowance (JSA) or Universal Credit (UC)”

Westminster: Written questions and answers on DWP’s new website: https://findajob.dwp.gov.uk

Issues covered: Compulsion, JSA, Universal Credit, GDPR and ‘full time, part time, flexible hours or a zero-hours contract’

Q: To ask the Secretary of State for Work and Pensions, whether use of the new Find a Job website will be compulsory for claimants of (a) jobseekers allowance and (b) universal credit.
Asked on: 15 May 2018

A:Use of the Find a job website is not compulsory for claimants of Jobseeker’s Allowance (JSA) or Universal Credit (UC). JSA and UC claimants are asked to create an account and upload a Curriculum Vitae (CV) on Find a job or another jobsite when they make a new claim. If a claimant creates an account using a jobsite other than Find a job, it must be one that is deemed to be suitable by the Work Coach.” [See footnote 1]

Answered by: Alok Sharma – Answered on: 22 May 2018 [emphasis added]
https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2018-05-15/144177/

Related: Claimants cannot be mandated to use the Find a Job website specifically.” and “The recorded information we hold that supports this is contained in” FOI disclosure 2046 of 15/5/18 and “DWP staff will not have access to view jobseeker accounts, CVs or activity/application history”

 

Q: To ask the Secretary of State for Work and Pensions, whether data will be collected by her Department from claimants using the Find a Job website.

Asked on: 15 May 2018

A: User data is collected in line with forthcoming GDPR legislation, to make it as easy as possible for customers of the Find a Job service to search and apply for job adverts relevant to them.

Further information is available on the site – https://findajob.dwp.gov.uk/privacy.html

Q: To ask the Secretary of State for Work and Pensions, whether the Find a Job website will clearly display whether an advertised position is full time, part time, flexible hours or a zero-hours contract.
Asked on: 15 May 2018
A: At present on Find a job customers can search for full or part time work. If an employer has included details of flexible working in their job description, they will be able to easily search for these keywords. The way flexible hours and working arrangements are best represented on the site will be developed soon after go live.
Written questions and answers
Written questions allow Members of Parliament to ask government ministers for information on the work, policy and activities of government departments.
https://www.parliament.uk/business/publications/written-questions-answers-statements/written-questions-answers/
 Join Boycott Workfare‘s campaign against forced-unpaid-labour and sign up to Keep Volunteering Voluntary.
Footnotes
[1] “Whether Indeed or Total Jobs are appropriate websites will depend on the
type of work each claimant is looking for and the vacancies displayed on
those sites. Therefore, there is no recorded information. However, paragraph
5 of Annex 3 of the instructions referred to above explain the considerations
made when determining if a claimant has undertaken enough work search
activity.”
Source: FOI 2388 reply of 4 June 2018
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