Boycott Workfare headed to the High Court to support the two claimants challenging the government’s workfare schemes in a judicial review. We held a protest outside the court in support of the claimants and then headed inside to listen to the case.
Over the last two days a High Court judge has listened to a judicial review brought forward by two claimants against two of the government’s workfare schemes.
Cait Reilly, a geology graduate, was forced to work unpaid for two weeks at Poundland under the Sector Based Work Academy programme. The other claimant, a qualified mechanic, was mandated onto the Community Action Programme which he refused to participate in and as a result had his benefits stopped.
If successful, the case could see workfare schemes quashed. Iain Duncan Smith, Secretary of State for Work and Pensions, would face a major headache – he would be required to radically overhaul his shambolic schemes so that benefit claimants were fully informed about the schemes and their rights. Forcing claimants to work for free would also be a lot more difficult for the government if the judge accepts that it contravenes article 4 of the Human Rights Act.
Nathalie Lieven QC, representing the two claimants, argued on four grounds that these two schemes were ‘unlawful’ and that they must therefore be quashed. In particular, Lieven made explicit how the government’s actions deny claimants of their rights by withholding basic information.
If you’re interested in the technical detail, these are the four grounds on which Lieven challenged the government’s schemes, each of which would lead to different ‘remedies’.
(1) The Government isn’t obeying the legislation. To set up these schemes it needs to “prescribe” what they are but it has not done so. The Governing primary legislation under section 17A of the Job Seekers’ Allowance Act 1995 requires all schemes implemented by the Secretary of State to be set out in the Regulations. Yet, the 2011 Regulations fail to outline the schemes and this is contrary to what parliament intended. ‘These regulations are written as if there is one scheme with one set of circumstance and consequences. This isn’t true.’ ‘17A is so clear that parliament intended there to be a prescribed regulation and there isn’t one’.
(2) The Secretary of State is acting unlawfully by not making information on the schemes publicly available. By not having publicly available information, claimants do not know what is expected of them, nor do they know what their rights are. Without basic information such as whether a scheme is voluntary or not, what sanctions are involved, etc. people are not able to make fully informed decisions on what they want to do. Lieven used Cait Reilly’s witness statement as an example of why publicly available information is so important. In Cait Reilly’s case she was wrongly told by her job centre advisor that she must take part in SBWA. She was given no information about what the scheme entailed. Had Cait Reilly had access to information about her rights, she could have pointed out to her advisor that she could not be sanctioned if she did not agree to start the scheme. Lieven highlighted that when the government changed the rules on 29th February, information on the changes wasn’t distributed to claimants or the public. The only document available is some internal guidance sent to job centre workers which detailed changes to some of the schemes. . (In fact, it was claimants from Boycott Workfare who having seen the internal document as a result of an FOI flagged by @consentmeuk, wrote up a blog piece so as to try and inform claimants of the changes.)
‘…there is a legal duty to set out these schemes and their consequences and make them publicly available…[this] allows people to know what they can and cannot do. Without this it is impossible to know whether government is acting fairly and consistently.’
In a particularly interesting statement, Lieven described how her clienthad received a letter from Ingeus which informed him that he would be required to do whatever they requested. He also received a letter from Pinnacle People. Lieven: ‘there is no information about how these various companies interact with each other… [a] private company has no power to mandate Mr W. to do anything… The Secretary of State delegated those duties to private companies whose circumstances are unknowable to claimants… Sub-delegation to private providers to mandate claimants to work or lose benefits is blatantly unlawful’. In an argument that could have important consequences for us if the judge agrees, she went on to say that in the regulations “[there is] no power for a private provider to make a claimant do anything, no powers under regulations let alone statutes… The Secretary of State delegated powers to a provider when he has no power to do so.’
(3) Regulation 4 – which requires individuals to be given specific notice of certain matters – was not met.
(4) The requirement to carry out mandatory work is contrary to Article 4 of the European Convention on Human Rights which prohibits compulsory labour. Lieven stressed that Job Seekers’ Allowance is a subsistence benefit that both claimants depended on to live, it is not a ‘gift’ but an entitlement. Forced labour means working ‘under the menace of a penalty…I would argue that removing what is a subsistence benefit is a penalty.’
Paul Nicholls QC then attempted to argue against these points for the government, painting an apocalyptic picture if the Secretary of State’s schemes were to be scrapped. He described his concerns about the consequences were the regulations to be quashed – it would be ‘intensely disruptive…you can’t continue with these schemes’. Yet this was hardly a compelling argument – will the judge really think ‘well, the Secretary of State clearly has acted unlawfully, but I’m worried about all the disruption that there could be were I to uphold the law, and so we’ll let it slide’?
The judge will now look over the arguments submitted by both sides and make a judgement in the coming weeks. We already know that the schemes are wrong. We hope that the judge will find that they are also unlawful and have them quashed.
Court Room Lulz
Amongst all the serious law, there were a few moments of relief:
A subcontractor called ‘Pinnacle People’ was mentioned numerous times, provoking giggles from campaigners and a doodle of a stick person impaled on a pinnacle.
Paul Nicholls tried to claim that ‘academic research and thought’ had gone into these schemes. Such as the academic research that said Mandatory Work Activity didn’t work which Grayling promptly ignored.