A judge has told the Department for Work and Pensions (DWP) that part of the agreement signed by out-of-work benefit claimants does not comply with the law, following a legal challenge from a disabled job-seeker.
The comments by Judge Christopher Ward in the upper tribunal could potentially affect millions of disabled and non-disabled people who felt they had to sign DWP’s jobseeker’s agreements in order to continue to receive out-of-work benefits.
Judge Ward said that this failure to comply with the law meant the jobseeker’s agreement breached Chris Hart’s rights, because he was told he did not have the right to have the document examined before he signed it.
Hart believes the jobseeker’s agreement – which sets out what someone has agreed to do to find work – is in fact a social behaviour contract, a conclusion he says DWP has not challenged.
This means that every jobseeker’s agreement – and its subsequent enforcement by DWP – is “potentially an utter violation of the principles of the rule of law”, because the basis of the contract is to enforce behaviour through mechanisms such as sanctions, without informing the claimant that that is what they are agreeing to sign.
Hart said: “The fact that I get confused easily, misunderstand and have cognitive processing problems associated with specific learning difficulties, and behaviour which is viewed by the state as problematic, but typically associated with Asperger’s syndrome, means that I am recognised as a vulnerable adult.
“Because of these facts, I have been arrested, had support withdrawn, had a loss of employment and had repeated benefit sanctions, so entering into an agreement with the DWP that uses my social behaviour as a term of a contract that I’ve not been informed of, most definitely upsets me, and puts me at risk.”
Hart believes the judge’s conclusions could mean that every one of the millions of jobseeker’s agreements that have been signed could also be ruled unlawful.
Hart’s impairments mean that he finds it difficult to secure and retain jobs without support, so he has been forced to move frequently in and out of the social security system and welfare-to-work regimes following irregular periods of work.
His last job ended when the support that had allowed him to work was withdrawn, and his GP confirmed that he would need considerable support to secure and maintain employment.
Hart had attended an interview with Jobcentre Plus on 6 January 2012 to start a new claim for jobseeker’s allowance (JSA), after previously claiming employment and support allowance (ESA).
As a condition of claiming JSA, he was asked to sign a jobseeker’s agreement, but he requested support from a DWP disability employment adviser so he could examine the document.
He was concerned that the agreement would fail to provide him with the support he needed, and could therefore expose him to unfair sanctions.
He said: “I wanted the right to have my needs considered before I signed that contract.”
But Jobcentre Plus refused and said that insisting on his rights in this way was unreasonable, and turned down his claim for JSA.
He was also refused hardship payments by DWP, and was forced to accept a crisis loan instead.
These decisions plunged him into financial crisis and put him at risk of eviction and food poverty.
He is now claiming ESA – he has been placed in the support group – but the period of 11 months when he was not being paid either JSA or ESA in 2012, and as a consequence had his housing benefit withdrawn, has left him heavily in debt. He is still trying to pay that debt off two years later.
Despite disability charities, Citizens Advice and care workers all advising him to sign the jobseeker’s agreement, he embarked instead on a two-year legal battle to have his rights recognised.
He lost his first appeal in 2012, but Judge Ward concluded last month that the “My Rights” section of the jobseeker’s agreement – which DWP had tried to force Hart to sign – did not comply with the law.
He said the agreement failed to inform JSA claimants that they had the right to have the document examined by a DWP decision-maker (DM), who could potentially decide that the details were unreasonable and should be changed.
Judge Ward said that Hart “should have been given the chance to have his reservations about the proposed [jobseeker’s agreement] considered by the person envisaged by the legislation, namely the DM on behalf of the secretary of state”.
The DM is supposed to decide upon disputes about proposed jobseeker’s agreements, including whether it is reasonable to expect the claimant to comply with its conditions.
The judge has now asked DWP to explain how the system allows a decision-maker to consider the disability-related aspects of a jobseeker’s agreement.
Hart said the judge’s conclusion was “monumental”, and could – if confirmed in his final judgment – render the jobseeker’s agreement “unlawful”, and affect “every person who is on that contract and every person who has been on that contract”.
Another disabled campaigner, Catherine Hale, said: “It seems to me like a very significant judgement that the DWP is failing to protect disabled people from unfair disadvantage in applying conditionality.”
Last month, DNS reported how Hale had criticised the government’s failure to apologise for the “discrimination and punishment” she faced on the Work Programme as an ESA claimant.
Hale had more than £70-a-week of her disability benefit stripped from her for three months because she could not attend a back-to-work workshop that a government assessment had already concluded would be inaccessible to her.
Hale is also the author of a well-received review which found that the back-to-work support provided to disabled people by the government actually pushes them further away from the jobs market.
A DWP spokeswoman said the department “cannot comment on an ongoing case”, but added: “The jobseeker’s agreement helps claimants to understand exactly what is expected of them, and is an important part of the contract people make with the taxpayer when they claim benefits.
“They are tailored to each individual, following discussions between them and their adviser, with the ultimate goal of helping them into work.”
She said Hart had appealed to the first-tier tribunal and lost, and his case was now being considered by the upper-tier tribunal and was “still ongoing, so the judge’s comments aren’t conclusive”.
14 November 2014