Challenging Access to Work

What is Access to Work?

The Department for Work and Pensions’ Access to Work scheme (“Access to Work”), which was introduced in 19941 has its origins in the Employment and Training Act 1973, and it makes provision for the Secretary of State to “make such arrangements as he considers appropriate for the purpose of assisting persons to select, train for, obtain and retain employment suitable for their ages and capacities or of assisting persons to obtain suitable employees (including partners and other business associates)2 which may include “arrangements for encouraging increases in the opportunities for employment and training that are available to women and girls or to disabled persons”3.

It appears that around the time that the Disability Discrimination Bill, which later became the Disability Discrimination Act 1995 (“the DDA”), was debated in Parliament, the Government decided to set up the Access to Work scheme to compliment the DDA and the then new concept of “reasonable adjustments”.

The Government’s current description of the Access to Work scheme is “a specialist disability service delivered by Jobcentre Plus, which gives practical advice and support to disabled people, whether they are working, self-employed or looking for employment. Access to Work is provided where someone needs support or adaptations beyond the reasonable adjustments which an employer is legally obliged to provide under the Equality Act”4.

Can decisions made by Access to Work be challenged?

In all circumstances, Access to Work decisions can be challenged directly to Access to Work. Details of the procedure can be found here.

A question often asked is whether decisions made by Access to Work can be legally challenged. The answer is “in theory, yes”. Any such legal challenge, however, has pitfalls because this is a largely untested area of law as such a challenge against Access to Work has never been made before.

The options available are:-

Judicial review

All bodies exercising functions of a public law nature are susceptible to a challenge by way of judicial review. To all extents and purposes, Access to Work would appear to be such a body because it has a public character.

Traditionally, the grounds for judicial review have been categorised under three heads:

  • Illegality – when a decision-maker misdirects itself in law, exercises a power wrongly or purports to exercise a power that it does not have;
  • Irrationality – a decision may be challenged as unreasonable (Wednesday unreasonableness), the decision-maker took into account irrelevant matters and/or failed to consider relevant matters, or made a mistake of act; and/or
  • Procedural impropriety – a decision-maker has not properly observed the relevant statutory procedures such as a failure to consult or give reasons, or failed to observe the principles of natural justice in the decision-making process, or has failed to hear an affected party5.

It is arguable that some Access to Work decisions could fall within the scope of illegality, irrationality and/or procedural impropriety.

Before making an application for judicial review, the claimant should follow the Pre-Action protocol for judicial review (which requires a letter before claim and an attempt at alternative dispute resolution).

An application for permission to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.

Discrimination under the Equality Act 2010

If there is evidence of discrimination e.g. if Access to Work – as a service provider – has failed to make the required reasonable adjustments to accommodate disabled people in the way they provide their services or in their decision-making process, or if they have discriminated against a D/deaf customer directly, indirectly or as a consequence of their disability.

In the first instance, a complaint should be made to Access to Work and their complaint procedure should be exhausted first, following which you should complain to the Parliamentary and Health Service Ombudsman if you are still not happy.

You could also send a questions form to Access to Work if the acts of discrimination occurred before 6 April 2014. Nonetheless, you can still ask Access to Work questions about the situation if it happened after 6 April 2014 (see here).

There is a time limit of six months from the last act of discrimination to make a claim for disability discrimination in the County Court.

Human rights

While a free-standing application can be made under the Human Rights Act 1998 (“the HRA”), a breach of its provisions may also form the basis for a judicial review application.

Claimants could make a claim against Access to Work if any of the following rights have been infringed:-

  • Article 2 – right to life;
  • Article 3: prohibition of torture;
  • Article 4: prohibition of slavery and forced labour;
  • Article 5: right to liberty and security;
  • Article 6: right to a fair trial;
  • Article 7: no punishment without law;
  • Article 8: right to respect for private and family life;
  • Article 9: freedom of thought, conscience and religion;
  • Article 10: freedom of expression;
  • Article 11: freedom of assembly and association;
  • Article 12: right to marry;
  • Article 14: prohibition of discrimination;
  • Article 16: restrictions on political activity of aliens;
  • Article 17: prohibition of abuse of rights;
  • Article 18: limitation on use of restrictions on rights.

Claimants can claim directly as a free-standing action by way of judicial review in the appropriate court or tribunal, or rely on their human rights in any other legal proceedings involving a public authority in which they may already be involved.

Claims under the HRA must be brought within one year of the breach of the human right.

UN Convention on the Rights of Persons with Disabilities

All members of society have the same human rights – they include civil, cultural, economic, political and social rights. Examples of these rights include the following:

  • equality before the law without discrimination;
  • equal recognition before the law and legal capacity;
  • right to live in the community;
  • right to work; and/or
  • right to an adequate standard of living.

All persons with disabilities have the right to be free from discrimination in the enjoyment of their rights.

The Committee on the Rights of Persons with Disabilities has an individual communications procedure which permits individuals and groups of individuals to complain to the Committee that the UK has breached one of its obligations under the Convention. That complaint is known as a “communication.” The Committee will then examine the complaint, formulate its views and recommendations, if any, on the communication, and send them to the State in question. Those views and recommendations appear in the Committee’s public report to the General Assembly. Normally, individual communications procedures are paper or written procedures, in other words, neither the complainant nor the State appears before the Committee in person; all submissions are made in writing.

Details of the individual communication procedure can be found here and a model complaint form here.

If you wish to explore the possibility of taking legal action against Access to Work, please contact us.

  1. P Thornton and A Corden, ‘Evaluating The Impact Of Access To Work: A Case Study Approach’ (Social Policy Research Unit, University of York 2002) 1. []
  2. Employment and Training Act 1973, s 1. []
  3. ibid s 2(b). []
  4. Department for Work and Pensions, ‘Employer’s Guide to Access to Work’ <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/307036/employer-guide-atw-dwpf03a.pdf> accessed 19 November 2009. []
  5. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410. []

Rob

Deaf, hubby to Rachel, dad to Corey, Libby and Emily, Solicitor, Lecturer in Legal Practice at University of South Wales, PhD student at University of Leicester.

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1 Response

  1. 1 April 2015

    […] on from my post here, I undertook some further research into the statutory basis for the Access to Work scheme, on the […]

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