Please note that since this post was published, the guidelines for Mandatory Work Activity have changed. Latest information can be found here: http://bworkfare.mayfirst.org/?page_id=1820
In a blundering – or little caring! – synchronisation of events, Chris Grayling announced back in June that Mandatory Work Activity placements were to be increased to 70,000 a year, when just hours before a DWP impact assessment was returned to the House of Commons library confirming “that the scheme had zero effect in helping people get a job.” It was reported in the Guardian at this time that the MWA rules were to undergo revision to stymie what Grayling perceived as people “gaming the system”, by which in reality is to mean those job seekers doing what it takes to prevent being used as free, forced labour to any one of a number of workfare-using charities.
Since these June articles, a more up-to-date version of the MWA guidance has come into the public domain setting out “returning scenarios” for those who failed to start, or finish, a placement – its publication can be read here. Elsewhere a set of JSA sanction ammendments are due to come into force from October 22 (see here – 69 + 70C)
From the perspective of avoiding Mandatory Work Activity the outcome of these combined changes is that sanctions and MWA referrals will be continuous from where a claim left off: so that say, if you leave a claim having failed to turn up for a placement, and a compliance doubt is raised, you will come back to face a re-referral with that doubt continued (or sanction still enforced that having been the case.) The sanction regime is also set to become very nasty, with docks in benefits starting at 3 months for the first ‘offence’, the second 6, and finally, wickedly, 3 years! (see 69).
Though in no way compensatory, worth pointing out should be the fact that Grayling’s scaled ambitions for 70,000 placements will be caught intractably within a slow-motion policy disaster that already is operating on a lag time, where already private providers have been unable to honour a backlog of MWA referrals for smaller numbers as this memo shows for July. Nor should be forgotten that campaigners have discovered DWP rules that exist to protect the jobseeker, opening up the space to fight back on Mandatory Work Activity…
When Mandatory Work Activity becomes mandatory…
It should be noted that Mandatory Work Activity only ever becomes mandatory once you have been referred to a private provider and they have issued an Initial Notification Letter letter (see Annex 3 from DWP issued Provider Guidance here)
NB Although the MWA 05 letter must be issued to the claimant, it is not the letter that contains the text necessary to support the mandatory nature of the provision. That text will be contained in a letter, issued by the provider, giving the claimant the details of their placement
Whether an advisor may sanction you for refusing a placement is not something covered by the MWA Guidance, though as a precaution it should not be ruled out as possible through existing provisions to jobcentre staff. Otherwise, however, it will be the provider themselves that raise a compliance doubt directly with the DMA (Decision Making & Appeals Team) on a failure to show for placement. (see 44)
Cycling a claim
Whilst the campaign has never officially promoted deborah8576’s YouTube video as way of avoiding MWA placements – a method which involves cycling off and on a JSA claim to pass over the MWA start date – it is aware of this tactic as an option. And quite obviously it has worked for some hence Grayling’s grumblings of “gaming the system”. However, it should be noted that there is nothing to stop advisors from making further referrals (a point the author makes herself!), and that crucially, come 22 October, this option will be dead to jobseeker’s as allowed for by The Jobseeker’s Allowance (Sanctions) (Ammendment) Regulations 2012 (see here – 70C).
Challenging a referral/sanction
It’s pretty damn obvious why people have resorted to the above action of ending a claim for a day or two when the alternative is to be sanctioned, but if you are wanting to challenge a proposed referral or sanction there are rules in your favour that the advisor has no right to be breaking:
In December, Boycott Workfare listed a set of circumstances that exempts a person from a MWA referral, it is worth reiterating that these still exist in the updated 23 July guidance – here they are again:
- you are currently working (paid or voluntary)
- you are undertaking employment related study / training
- you are taking part in or recently completed another “employment measure”
- the reason given is you have a lack of recent work experience
- you are being referred because your advisor thinks you haven’t been meeting your jobseeker’s agreement.
If any of the above circumstances apply to you and are being ignored, then you should not have to be ‘resisting’, as the advisor has no right to arrange the placement (though we know they do try!)
In such a situation where any of the above bullets apply you might choose to:
a) print out the relevant section of MWA guidance (points 18 – 20) and bring it with you when signing-on and attending jobcentre interviews just so ready to make a challenge if proposed for MWA (escalating up to manager if necessary);
b) (if challenge fails) take things further by going through the DWP complaints procedure, again citing the relevant guidance;
c) (if sanctioned) appeal to the DM, citing the applicable guidance, with reference to the complaint.
Challenging a MWA referral with the Customer Assessment Tool (CAT)
The Customer Assessment Tool (CAT) can optionally be used by advisors at the end of Work Targeted Interviews to record a jobseeker’s skill, likelihood and ability to seek out particular work. Its use involves grading (literally!) a set of ten statements as can be seen here (point 4 and appendix 1).
There are two important things you need to know about the Customer Assessment Tool:
i) That its use is cited as required for identifying those suitable for Mandatory Work Activity
Identifying claimants suitable for MWA
15. A JSA claimant potentially suitable for MWA is one identified through the work targeted interview process, supported by use of the Customer Assessment Tool, as lacking ,or failing to demonstrate, the focus and discipline that is necessary to effectively:
* seek out and pursue job opportunities
* secure and retain employment”
ii) That you don’t have to participate in it!
Data Protection Act/Freedom of Information
58. The Data Protection Act applies to all Jobcentre Plus business, in particular information recorded throughout the advisory process much of which is sensitive. The specific requirements of the Data Protection Act that apply to the Customer Assessment Tool are:
we must explain to the customer why we complete the CAT.
the customer must consent to the adviser using the CAT.Ⴕ
Here are other noteworthy selections taken from the CAT guidance – they are:
That you must be introduced to the CAT with an explanation of what it is:
(A) “28 At an appropriate point during the interview (after you have agreed a job goal/work area) introduce the customer to the CAT and explain what it is for.”
That you can request a copy of your CAT profile at any time:
(B)“59. If a customer wants a copy of the CAT they can ask you for it at any time and the PA must provide it.”
That the CAT is not mandatory:
(C)“36… Note: The CAT is not mandatory for customers and they can request that information is not recorded on it…”
That grades are allowed to be challenged:
(D) “18. Should the customer disagree with a score you have recorded against a statement, note this in the free text box indicating the evidence you based it on and the reason(s) the customer disagrees. Also write what letter the customer thinks should be written and why.”
What does this mean?
That by refusing use of the Customer Assessment Tool you have killed off the one specified formal procedure utilised by staff to identify a MWA candidate.
Are the campaign aware of other formal identifying measures used?
Only that to support CAT use, and further attempt a jobseeker to reveal compromising information qualifying them for MWA, advisors can draw up questionnaires from a template letter seen here. But, as these “self-completion questionnaires [are used ] to support … use of the Customer Assessment Tool (CAT)” by already having withheld consent to the CAT’s usage these type of questionnaires cannot be issued. On this linked basis it is possible that the questionnaire is only counted as supplementary evidence in any case.
As to what interventions and procedures are formally permitted for use by an advisor – other than Customer Assessment Tool – to make a MWA referral, the DWP have not itemised these methods within the MWA guidance. Only gropingly, by guide of the language used in the guidelines, might the campaign hazard alternative options for advisors in point 26’s use of “for example”.
26. Because it takes time to follow the necessary local protocols, it is vitally
important for the Personal Adviser to confirm, by review of the Customer
Assessment Tool for example, that the reasons for considering referral in the
first instance remain valid.
That’s it. Note that this above instruction is to be followed at the subsequent stage of referral and *not* identification. A point you could argue.
It is on the DWP’s inability to catalogue alternatives on which you could present a challenge to a proposed referral – and if necessary appeal – by virtue that you will have avoided the very and only explicitly expressed use of the Customer Assessment Tool in point 15.
The CAT defence
What follows are three types of challenges to a MWA referral built around the issue of consent of the Customer Assessment Tool.
I did not consent to use of the CAT
If you were asked permission but did not consent to use of the Customer Assessment Tool, and are told you are being considered for MWA (see 24 of MWA guidance), your only recourse at this point, other than challenging the advisor directly, is to go through the complaints procedure. Unless sanctioned for refusal by the advisor, you cannot appeal until ‘handed over’ to the private provider (see 25 of MWA guidance) and a compliance doubt is referred to the Decision Maker & Appeals Team for non-attendance of the placement itself. (This is done directly by the provider bypassing jobcentre advisors.)
How you play things is up to you, but the basis of your appeal should be that the advisor has not used the Customer Assessment Tool, quoting point 15 of the MWA guidance, and so therefore had no right to refer you. As backup, in your efforts to halt the placement – you have to be ‘introduced’ to MWA remember! – will be the complaint (again raising point 15), which you could cite and/or recap at the appeal stage.
I was not told about or asked permission to use the CAT
If you are told you are being considered for MWA having never been told, or asked permission to use the Customer Assessment Tool, then don’t take it as for granted that an advisor hasn’t ignored guidelines, skipping the assessment. However, you might first consider mentioning applicable bulleted exemptions sooner than introduce a discussion on the Customer Assessment Tool, and see if this doesn’t halt a potential referral. But having exhausted that option ask to see a copy of your CAT profile as is permitted (show excerpt (B) as evidence) . If the advisor produces it, then evidently your defence is that no permission was given for the assessment to occur (maybe the assessment went ahead without adequate explanation, or consent sought, if not a dodgy advisor!) You can use this defence in a challenge, producing a printout of point 15 of the MWA guidance, and excerpt 58 of the CAT guidance, asking the advisor to show a record of your consent – see b here If the advisor doesn’t halt the consideration for MWA, then use these cited excerpts for your complaint and appeals.
Should the advisor produce no record, accepting your challenge, then you will have just helped out an ignorant advisor. Otherwise you will have to complain and appeal in the same way had you not consented.
I did consent to use of the CAT
If you did consent to the use of the Customer Assessment Tool then ask for a copy of your CAT profile (show excerpt (B) as evidence). Here you will see how you were graded, and had you not been offered a chance to dispute grades during assessment could make a complaint on these grounds; and this going nowhere again at appeal stage (in these instances citing excerpt (D) ).
Note that what the advisor has entered as evidence “must be something factual” and can include conversations, claim forms, and LMS conversations (see 11 + 12 of CAT guidance). While at liberty to ask for a printout of your LMS conversations (what the advisor types out about you on each visit), you can put in a request for this and other personal information held about you if necessary – see here. Evidently if the advisor has got things wrong you should refute this if the basis for referral.
Had the advisor not made you aware that you were being graded during the assessment this could also form the ground of a complaint and subsequent appeal. So too, if you ‘feel’ the advisor did not adequately explain the Customer Assessment Tool to you, might excerpt (A) be handy.
Making Appeals under the threat of further referral
The trouble with keeping a claim open to fight an appeal is the risk of further referrals. There is no failsafe to stop this happening, though it should be pointed out that if already serving a 26 week sanction deliberations must be made by the advisor as to whether further referrals are not a waste of effort, cost, reputation and resource to provider and the exploiting charity (because that’s the thing to care about!):
59. For each referral made, the provider must invest resources in sourcing a suitable placement and call upon the goodwill of a third party organization to host that placement. This means that a claimant failing to start their placement impacts on the resources available to the provider to invest in delivering the programme in more general terms, as well as on the host organization’s willingness to host further placements, which is vital to effective delivery of MWA.
60. This guidance does not seek to prescribe when Advisory Teams should stop making subsequent MWA referrals for a particular claimant. Rather, it seeks to ensure that in cases where a claimant is already serving a 26 week sanction as a result of failing to attend MWA, and still shows no willingness to engage with the provision, Advisory Teams ensure that all other avenues have been explored and that they balance the benefit of making a further referral against the wider impact and costs (financial and reputational) of doing so.
You cannot be referred to MWA on returning to claim where a decision with the DMA was left outstanding when closed down (this is what is meant by a “reserved DMA decision” ). This is nothing but a – likely brief – limbo period before getting an answer from the Decision Maker, but noteworthy because the ‘reserved’ status can only be achieved by stop-starting a claim, so does not exist otherwise. It offers nothing but a very time limited protection however.
81. If a claimant referred to MWA ends their JSA claim after starting, but not completing, their placement or ends it shortly after they were due to start but failed to do so, the Jobcentre should be holding paperwork relating to a reserved DMA decision.
82. If that claimant then makes a new JSA claim within the period to which the reserved decision applies, the case papers must be referred back to the DMA Team.
83. Any thought of referring such claimants to MWA must wait until the DMA outcome is known.
Appealing when signed off
Though as yet no written confirmation exists as to whether possible to make an appeal whilst signed off a JSA claim, one campaigner has had it confirmed verbally by a DWP worker that it is permitted.
And not forgetting those on the Work Programme…
As ever check consent.me.uk for tips on beating sanctions.
* Mandatory Work Activity guidance
Ⴕ Customer Assessment Tool guidance