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Mandatory Work Activity Fightback

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)

41. MWA participation becomes mandatory when the provider issues the claimant with a notice in writing containing details of their placement and what they are required to do.*

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:

MWA Exemptions

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.
 

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.

“For example”

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.

http://www.consent.me.uk/sanctionappeals/

* Mandatory Work Activity guidance

Ⴕ Customer Assessment Tool guidance

Comments

Comments (7)

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bob

i have challenged my mwa because i am doing study in maths and english
and they stillsay i have to do it even got my start date for my mwa
any advice and help much
thanks bob

Si

I am a graduate with qute a few years work experience, been on jsa a few months and have confirmation of the placement, they're trying to send me to "All Waste recycling ltd" in Warrington, 30 hours (excluding breaks) over 7 days!

B

Hi, I'm soon to be be referred to a 'provider' that is known for doing MWA, but am already doing volunteer work. When do I bring up this fact? Is it at the Jobcentre interview, or when I am under the provider? They havent said it's 'for MWA' but is for Jobsearch too. If anyone can give me info that would be great, and thanks for putting this info up! I am someone who has a health problem and am too ill to work but have been declared 'fit for work'. I try to give back by doing Voluntary work but I struggle even with that. This has really helped me as doing MWA would put my illness into a relapse which last time took me about a year to recover from. Thanks again x

shayne pritchard

As long as you don't agree to your adviser using CAT there is no way she/he can make a referral to MWA as CAT is the tool used to determine if you qualify for it.

or just get a 1 day a week position at a charity shop
.

Lee

hi, i started my Universal credit claim after i was laid off from full time work at the beginning of november, i had my 1st appointment mid to later november and my 1st payment in december i was told by my job centre adviser that i am being referred to the MWA i asked why she said because i'd been signed on for more than 9 months and it would help give me employee discipline and something extra for my cv, i told her that i had only just come out of full time employment and my cv is up to date so none of that is relevant, she said because i was on jsa for a month a year ago that my claim was still on the system but just not active until i renewed my claim this year, i don't believe her reasoning for sending me and she has already failed to process my claim correctly resulting in an emergency payment and an apology from the universal credit payment office proving she is incompetent, now i have recieved my letter telling me that i am starting at a recycling centre and i need to be there at 8 it's more than 90mins away via public transport and the 1st bus going to warrington comes at 7.14 am so at best i'll get there more than an hour late also the job is 8am till 6pm and the 1st bus of 2 buses to get back home only comes at 7.20pm thats 1hr and 20mins after i finish and i only get back by 9 o'clock so i set off from 6.45 am and get back at 9 pm the whole system is a disgrace, i have been told by everyone i know to not attend but i told them if i don't i will be sanctioned for 13 weeks which i can't afford to lose, i hope david cameron and all tories die

Stuart

@Shayne Pritchard

That's no longer the case, unfortunately, with regards the Customer Assessment Tool, because point 15 cited in this guide has since been re-written as:

"17. A JSA claimant potentially suitable for MWA is one identified through the work targeted interview process as lacking, or failing to demonstrate, the focus and discipline necessary to effectively:"

So the specified use of CAT at identification stage was removed.

The Customer Assessment Tool *may* be used at referral stage but what else can be used here isn't specified (still).

"29. 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."

There is nothing in the MWA guidance about consent-based assessments being necessary for referral, which makes the letter in the link below entirely speculative *if* the "for example" in 29 only relies on consent-based forms.

http://bworkfare.mayfirst.org/?page_id=1820

Otherwise what you say on CAT was bang on.

Scott

I have my start date for mwa in the letter it say's my start time is 10 am on the timetable at the back of the letter it says my am start time is 9 am and my pm start time is 4 pm. If it's a mistake and the shift is 9-4 that is 7 hrs not the 6 I was told it would be. I have been told they don't give expenses for lunch so I will not be eating anything and sitting about for an hour. I know from experience that you can get lunch expenses doing voluntary work. I had a 4 hrs a wk voluntary job delivering leaflets and I had a start date for a charity shop when I was reffered on mwa. I have also been told by the Jobcentre that they are unwilling to change my sign on time and the provider said the company I am going to don't allow you to leave through a work day, they are both putting my claim in jeopardy and I have suffered from depression in the past and I know the dark clouds are forming and no 1 is listening to me, it's bad enough dealing with rejected job applications but having to deal with people who continually threaten me with sanctions if I don't do this or that things will get worse. In any letter I've had from dwp or the providers jhp, ingeus or the wise group they spend more time telling me what will happen if I don't turn up than what they are going to do to help me find a job. The name of the company I have my placement with is Human Hope, oh the irony.