Friday, June 10, 2011

Workfare Unravels

Workfare, the government’s forced labour scheme, could be the latest policy to unravel as encouraging momentum builds against the proposed reform of the welfare system.

On Tuesday activists forced the cancellation of the “Making Work Pay” conference at the Royal Society and have vowed to continue to struggle against welfare reforms with the launch of Welfare Uncut and Boycott Workfare.

Meanwhile the latest legal opinion, gained by Brighton Unemployed Centre is that Workfare may in fact be illegal.

The most damning indictment however slipped out almost unnoticed in April. The Social Security Advisory Committee (SSAC) provides impartial advice to the UK government on social security proposals. Reports are presented to Parliament alongside any proposed legislation and the Government is expected to respond to any recommendations the body makes.

The SSAC were asked to report on the mandatory work programme (PDF) which will see some benefit claimants forced to carry out 30 hours a week of unpaid work for four weeks or face losing benefits. A whole host of corporate parasites and even charities have been licking their lips at the prospect of free labour provided by the unemployed.

The report reveals a staggering lack of foresight into how the proposals may work in practice. Like so many other areas of welfare policy, it appears that Iain Duncan Smith hasn’t thought things through again.

The most concerning aspect of the report reveals that referral to mandatory work activity (workfare) will be made by Jobcentre Advisors largely on a whim. If they don’t like your face, then off you go to work in Primark for no pay for a month. This could potentially even happen on the first day of a benefit claim if the advisor decides you aren’t trying hard enough to find work. Once the workfare is over, then it seems you could be immediately re-referred.

Previously there were things like rules and regulations about what is expected of benefit claimants. But now the goalposts are shifting and any old twat with a clipboard and a grudge down the Jobcentre will have the power to fuck up claimant’s lives. As the committee notes: “Claimants can be fully engaged with the (benefit) conditionality requirements but in effect a claimant can still be mandated to do more.”

The implications of this could be devastating. With thousands of people with health problems, many of them vulnerable, some with mental health conditions, it’s not a huge leap to have concerns that many of this group may face discrimination.

As the Committee also points out: “4.17 Evidence from the Department’s Equality Impact Assessment and DWP research shows that ethnic minority claimants and those with a learning difficulty tend to be disproportionately sanctioned for not actively seeking employment. This, alongside other societal factors, could lead to these groups being disproportionately referred to this scheme and, as a consequence, at even greater risk of sanction.”

The initial benefit sanction will be raised from 2 weeks to 13 weeks. We therefore see a very real possibilities that those, already stripped of health benefits by the sharks at Atos Origin, may be forced off benefits all together. Job seeking commitments, which could be arbitrarily made up by Jobcentre advisors, could see thousands facing the very real poverty created by benefit sanctions.

Already cancer patients, people with MS and other serious medical conditions have been forced onto Job Seekers Allowance. Under these rules they could now be forced into full time, unpaid employment or face starvation. The recent spate of suicides due to adverse benefit decisions is likely to rocket if these proposals go ahead. This is no longer scare-mongering, but proposed government policy. It is little wonder that some have compared the plans for welfare reform to euthanasia programmes.

But it not all doom and gloom. Workfare is good for you claims the DWP. The SSAC doesn’t agree noting: “We also wonder why, given that the Department views mandatory work activity as a beneficial change, people will not be permitted to volunteer to take part. This seems to us to signal that being mandated to mandatory work activity is regarded as a punishment rather than an opportunity to learn and develop new behaviours and skills. Employers are unlikely to value references that come from forced work schemes, as they will not perceive such a reference as evidence that the participant has the skills to undertake an actual job and are more likely to see mandatory participation as a negative sign of participants’ work readiness and willingness to work.”

Concerns are also raised in the report about the impact of workfare on people’s ability to be able to effectively seek work. Participants in workfare schemes could be expected to travel up to three hours a day to placements, on top of the 30 hours a week unpaid work. This will leave little chance for ‘actively seeking work’ especially for those with children or health problems.

So far the DWP has offered no details of what may happen if a claimants has to attend a hospital appointment, or their child is taken ill. Noted only in passing by the committee is the vast array of other commitments that particularly vulnerable claimants may have such as meetings with Social Services, interviews and appointments for social or emergency housing, probation appointments or counselling. It seems that no-one at the DWP has even considered what happens when a client is due to sign on, which will still be expected of them whilst on workfare.  In practice it may be impossible for workfare victims to disappear from the workfare placement and attend the job centre once a fortnight.  But no-one seems to have thought about that.

There also appears to have been no thought given to what might happen if a claimant is successful in gaining a job interview during there Workfare provision. Under current plans they may face benefit sanctions if they miss their placement and attend.  Finally, and also missed by the committee, but familiar to many who’ve already faced the joys of the New Deal and other similar schemes, is activities the claimant may already be carrying out to help them find work. Many Job Seeker’s Allowance claimants are at college part time, volunteering, researching setting up a business or even currently on other ‘job search’ provisions. In the past it has not been uncommon for claimants to be forced to leave courses without achieving the final qualification to attend some bollocks scheme at A4e where they do little more than sit around in an office for 30 hours a week. Money grabbing providers of job search and other schemes have even been known to fight over claimants with no thought at all as to what is best for the individual concerned.

Concerns are also being raised about the quality and even availability of workplace placements. Whilst some businesses may be salivating at the prospect of unpaid labour, the reality is that many providers up until now have found it difficult to find suitable work placements, especially for those who may be vulnerable, have drug or alcohol problems, mental health conditions, criminal records or are homeless. These are exactly the type of people likely to be referred for the initial phase of workfare.

It is highly likely that only the most exploitative employers will be interested in recruiting workfare staff. As the SSAC notes: “We are also concerned that there seems to be no process in place to monitor employers or to end their involvement should they be found to be exploiting participants or requiring them to undertake inappropriate work (or work experience.”

One former employee of workfare provider A4e told us of one claimant whose placement provider had boasted about how they’d been able to sack the cleaners since being able to hire workfare staff.

The SSAC also raises concerns about how any expenses the claimant may incur will be recouped, noting that the DWP will not be responsible for travel expenses, which they expect to be provided by placement providers, however there is no compulsion on them to do so. Childcare expenses will not be met by anyone, leaving parents at risk of being unable to afford to attend workfare, and thus facing benefit sanctions. The poorer you are, the more likely it is you will be made poorer.

The 13 week sanction period is also condemned by the SSAC, warning that the length of time is disproportionate and also warns that: “there is no incentive for a sanctioned person to re-engage with the programme as the department states that any sanction will remain in force even if a person returns to the placement.”

The report concludes that they: “recommend that Mandatory Work Activity does not proceed.” Whether they will be listened to is anyone’s guess. What is clear is that the combination of sanctions, health testing, housing benefit cuts and other benefit changes is that the poorest and the most vulnerable in society are likely to be even further pushed into deprivation and poverty if the changes go ahead.

Of course workfare is nothing new and the poor and destitute shouldn’t expect any help from the Labour Party. The difference is that past workfare style provision at least paid lip service to ideas of providing quality training and skills, even if in reality that was rarely the case. When the last Government kicked you it was ‘for your own good’. This bunch of toffs just appear intent on kicking people when they’re down, presumably to make sure they stay there.

One interesting fact which does emerge from the report is that the DWP are currently only planning to recruit 10,000 people onto workfare per year. It is a rarely mentioned fact that workfare, even in the current training and support free model proposed, is expensive. Claimants need to be monitored, policed, insured and managed. Agencies providing workfare schemes need to advertise, recruit, design programmes, find placements and train staff. The new god-like powers now being given to Jobcentre advisors signify a vastly increased workload at a time when the DWP is facing mass redundancies.

There appear to be two possibilities emerging. There are currently around a million people who have been claiming Job Seeker’s Allowance over a year. If the figures of 10,000 workfare placements a year remains the same then someone on long term benefits only has a one in a hundred chance of being referred onto workfare in the next year. Whilst that small percentage may represent the most vulnerable benefit claimants, this is unlikely to be of any concern to tory filth.

Unemployment, according to the Tories, was once a price worth paying. It is not inconceivable that this highly publicised drive to get tough on ‘benefit scroungers’ is little more than a sop to fool the angry people who write letters to the Daily Mail. Under Thatcher three million unemployed were left to rot. It was cheaper that way, and still is.

Another, sadly more likely, possibility is that this is being used as a trial run. Businesses are well aware of the implications of the creation of a vast army of unpaid labour. Already concerns have been raised about workfare staff being used to undercut wages or even being forced into becoming scab labour. This is a matter that may yet become a far more pressing concern for the unions, who with the exception of the PCS, (who are well aware of what a shambles these changes are likely to cause) have paid little attention to the plight of benefit claimants.

One thing’s for sure. This is not about training people, reducing unemployment or even saving money. There is no evidence that workfare in fact works. According to one report: “In Quebec, PQ Income Security Minister Jeanne Blackburn has publicly admitted that workfare there has been a dismal failure. In the first five years of the program, the number of Quebecers on welfare rose by a staggering 42% to 776,541 persons in 464,500 households. Of the 80% of welfare recipients considered “employable,” only about 15% are now actually enrolled in workfare programs. And of those who have participated in such programs since 1989, fewer than 12% of them have been able to find stable jobs.”

The good news is that claimant’s are fighting back in an unprecedented way. Atos Origin, the French IT firm responsible for the Work Capability Assessment have seen scores of demos, pickets and occupations outside (and inside) their premises across the UK. Workfare providing organisations such as the odious A4e have also seen protests and offices invaded. Charities and businesses set to recruit workfare staff are likely to face protests and direct action. Connections are being made, plans formed, strategies developed and new groups seem to be springing up almost daily.

This government expects disabled people and claimants to die quietly. Many (but not all) claimants are unemployed and so are unable to strike. Many have disabilities, health problems, and a whole host of other shit going on in our lives. We have fuck all money and so are unable pursue mainstream methods of campaigning. But we are millions strong. And we have very little left to lose.

Tuesday, June 7, 2011



1. Submitted, the implementation of a work-for-benefit scheme is a violation of the right not to be subjected to forced or compulsory labour. “Forced or compulsory labour” is defined in the ILO Forced Labour Convention 1930 as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

2. Work-for-benefit is exacted under the menace of benefit sanction, which falls within the autonomous Convention definition of “criminal charge” in that it has a manifestly deterrent purpose, with indication of a penal purpose.1 The House of Lords in Secretary of State for the Home Department v MB [2008] 1 All ER 673 reviewed the case law as distinguishing between measures merely preventative in purpose and those which “have a more punitive, retributive or deterrent object” (per Lord Bingham [19] to [24]).

3. If C refuses a direction to participate in a work scheme save on the condition that he charges his stipulated rate and that there is a contract for services, he will almost certainly be sanctioned. Submitted, such direction and sanction would be unlawful, because it would purport to suppress his capacity to contract and to take the benefit thereof, in violation of

Protocol 1 Article 1 of the ECHR (right to peaceful enjoyment of possessions), further without statutory authorisation. It would also violate Article 4 of the ECHR by forcing him to work outside the limits of his consent.

4. Even if it were held that C offered himself voluntarily, the fact that he gave his prior consent to participation in work-for-benefit was held in Van der Mussele v Belgium (1983) 6 EHRR 163 to be inconclusive. It was held at paragraph 40 that, in the case of prior consent, there must be a “considerable and unreasonable imbalance between the aim pursued (entry to the legal profession) and the obligations accepted as a condition of achieving that aim for there to be forced labour. The burden must be so excessive or disproportionate to the advantages attached to the future exercise of the profession that the service cannot be treated as having been voluntarily accepted. (at paragraph 37).

5. Further to #4 the ECtHR took account of the fact that:

(a) the required service was not unconnected with the profession in question (particular employment test);

(b) in return for unpaid service the person received certain advantages, including the exclusive right of audience in court (privilege test);

(c) the work contributed to professional training (training test);

(d) the requirement related to the delivery of a Convention right of others to free legal assistance (rights of others test);

(e) the service was similar to the “normal civic obligation” exception (Article 4(3)(d)) (civic obligation test);

1 DWP Research Report No 313, A review of the JSA sanctions regime: Summary research findings, 2006)

(f) the burden imposed (involving unpaid work) was not such as to leave the person without sufficient time for paid work (hours test).

6. It was held in Talmon v Netherlands (1977) ECtHR that Article 4 does not stand in the way of a requirement that an unemployed person take suitable employment. The case involved a claimant who lost on the merits having insisted that he was willing to work only as an independent scientist and social critic and was on grounds of conscience unwilling to take any other work.

7. A work-for-benefit scheme does not comply with Article 4 because it does not meet all -in particular it meets none – of the criteria in #5:

8. (a) there is in the terms of participation no indication of a promise or cause of legitimate expectation of regular employment on completion of service;

(b) the stated aim of the scheme is merely to restore competitive parity on the labour market which C is likely to have lost in consequence of long-term unemployment, and does not include the aim of procuring access to a privileged occupation;

(c) there is no element of training of any kind, let alone any with recognised credentials;

(d) the work does not involve the delivery of a Convention right to others;

(e) the service is, for reasons stated in #9, not similar to a normal civic obligation;

(f) the service is exacted on a full-time basis to the exclusion of any significant time to seek or undertake paid work, and for a duration far in excess of what is necessary to effect labour market rehabilitation.

9. Further to #7(e) work-for-benefit arrangements are not similar to a civic obligation. The terms on which service is exacted are consistent with the condition of servility, but not with  the freedoms, property rights and public service expectations (eg. military or jury service) characteristic of citizenship.2 They derogate from the right of a free man to work for a wage or a fee under a contract of service or for services and to draw the benefit of the contract, namely his living from work he freely chooses or accepts (International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 6).

10. Submitted, the premiss of work-for-benefit is that it is legitimate to exact labour services in consideration for benefits paid during such service or a previous period of unemployment. This premiss is misconceived. Save that Strasbourg jurisprudence assimilates social security benefits to private property, international human rights law otherwise knows social security and social insurance to be the object of a right, but not as a commodity which must be paid for except by taxes and social insurance contributions.

3 (Cf. ICESCR Article 9; ECHR Protocol 1 Article 1 paragraph 3). It follows that the only way to exact tribute from a person consistently with respect for the status of citizenship is to engage the person under a regular contract and then lawfully to impose taxes on his remuneration.

2 Cf. Aristotle, The Politics, Book I Chapters 4-7; Book III Chapter 5

3 R (on the application of RJM) (FC) (Appellant) v Secretary of State for Work and Pensions [2008] UKHL 63;

Stec & Ors v United Kingdom (App. Nos: 65731/01 & 65900/01), Decision on Admissibility 06-07-2005 (ECtHR)

11. Submitted, even if the obligation of work-for-benefit were “civic” in nature, it is not “normal”. A “normal” civic obligation is one which is designed to fall equitably upon everyone within the general class of citizens by reason of citizenship without more.

Alternatively, it may on principle be designed to fall equitably upon everyone within a subclass of citizens by reason of citizenship together with some legal or factual position of privilege, dominance or eminence.

12. Further to #11, work-for-benefit schemes are not designed to affect all citizens generally, neither are they addressed to a privileged class. On the contrary, they are addressed to a sub-class of citizens who are disadvantaged by reason of long-term unemployment and who by definition have already become victims of a violation of their right to work, in that the United Kingdom has failed to perform international obligations arising from the ICESCR.

13. Further to #6 it is submitted that Talmon is distinguishable and can be disapplied because the claimant in that case had put restrictions on his availability for work which are, in any circumstances, fanciful. Employment is not “suitable” if its terms and conditions derogate from the ICESCR, in particular Article 7.

14. In so far as the public interest is opposable to any of the rights asserted in this submission, it was held in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate: “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

By a recent modification of the “De Freitas” principle, public authorities must strike a fair balance between the rights of the individual and the interests of the community, taking care to assess the severity and consequences of a measure. (Huang v Secretary of State for the Home Department [2007] UKHL 11 at [19]).

Prepared by Michael Petek, (Barrister), 09-02-2010 for Brighton Unemployed Center