Sainsbury (2008) argues that within the UK’s welfare to work agenda, there is considerable room for discretion. Having studied the policy documents carefully alongside the Child Poverty Action Group’s Welfare Benefits and
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Tax Credits Handbook15 (CPAG, 2009), it is clear that there are three potential areas in which Advisors have discretion within Pathways to Work.
These are the requirement to attend Work Focused Interviews, the ‘Choices’
• offered to claimants and benefit sanctions. On the other hand, it will be shown that Condition Management Programme clinical staff are subject to significantly less official guidance and therefore have the potential to use very wide discretion.
Work Focused Interviews
Whilst there is a requirement for all IB claimants to attend six WFIs, Advisors have some discretion to waive this requirement. Certain groups will automatically be exempt, including those who are terminally ill, pregnant women who would risk the health of themselves or their baby if they worked and those who would cause a risk to their, or someone else’s, physical or mental health if they worked (CPAG, 2009). These categories could be interpreted very widely.
In addition to the above categories, ‘a severe limitation in certain activities’, such as maintaining personal hygiene, walking and continence, can be used as grounds to waive the WFI requirement (CPAG, 2009:1514). The guidance is very specific and caters for the most severely incapacitated of people. For example, if a person cannot complete both of the following they could be waived:
‘rise to standing from sitting in an upright chair without receiving physical assistance from someone else and move between one seated position and another seated position located next to one another without receiving physical assistance from someone else’ (CPAG, 2009:1514).
15 The CPAG Benefits Handbook is seen as the authoritative source on navigating the Benefits system, providing extremely detailed guidance on each subject. The guide is updated each year, and the information contained was correct at the time of the fieldwork.
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As a result of such detailed guidelines, Advisors are constrained in whom they can exempt from Pathways to Work. However, Advisors have more power to defer an interview. If ‘it is considered that an interview would not be of assistance or appropriate’, the interview may be deferred (CPAG, 2009:1003). This could allow considerable discretion, depending upon how a lack of assistance is interpreted.
The ‘Menu of choices’
One area in which Advisors have potential for significant discretion is in which ‘choice(s)’ they offer claimants. The DWP reports that the great strength of Pathways is its ability to be flexible and respond to claimants’
individual circumstances (DWP, 2002). Unlike in most areas of Pathways, Advisors have not been given published guidance on how to decide which
‘choices’ to recommend to individual claimants (Sainsbury, 2008). To date, there is little literature available that discusses how Advisors make this decision16.
Sanctioning Benefit Payments
If claimants do not attend a WFI without showing ‘good cause’ within five working days, a benefit sanction can be imposed. The guidance Advisors are given to decide if a claimant has ‘good cause’ is very wide, including misunderstandings, transport difficulties, attending a job interview or health issues (CPAG, 2009:1005.) As such, it would be possible for an Advisor to avoid sanctioning most claimants who do not attend compulsory WFIs.
Likewise, claimants are required to ‘participate’ in WFIs, including answering questions and devising an action plan (CPAG, 2009:1003). The notion of participation is broad, and as such, Advisors have the power to sanction
16 Research relating to Advisor discretion within Pathways to Work will be discussed in more detail at the beginning of Chapter Five.
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claimants who have fulfilled the requirement to attend a WFI if they perceive them to be non-compliant. As a result of the unequal nature of power relations between Advisors and claimants, this guidance could be used inappropriately. Furthermore, within the available guidance, there is no distinction between claimants who are unwilling to attend or participate and those who are unable to do so as a result of their health condition. This could result in sanctions being applied inappropriately, for example, for some claimants who are unable to attend the Jobcentre Plus office as a result of severe anxiety conditions. Whilst in previous years, Advisors visited claimants at their home if they struggled to travel, this practice is now much less common (Grant, 2011).
The Condition Management Programme
Whilst Jobcentre Plus Advisors have significant constraints placed upon them in the form of official guidance within which they must operate, CMPs have very minimal guidance. Whilst their interventions must be targeted at the three most common causes of incapacity (minor mental health conditions, musculo-skeletal conditions and cardio-respiratory conditions), without replicating existing services, CMPs were able to use any methods to support IB claimants to better manage their health condition.
There is nothing explicitly set out in policy documents as to why CMP staff were subject to such a low level of constraint compared to Advisors, but it is possible that their stronger professional identity as clinicians, who would expect to be able to exercise clinical autonomy within cases they managed (Lipsky, 1980; Bergen, 2005), was respected in the policy design stages.
Alternatively, as CMPs are expected to be innovative and responsive to local conditions, it is possible that a wide range of discretion is the only way such a project could be implemented.
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2.6 Conclusion
This chapter has outlined major changes to social security for unemployed and disabled people since the Poor Laws. It was shown that social security for the unemployed has always been influenced by notions of claimants as undeserving and ‘less eligibility’, or making benefits less attractive than work. However, until the 1990s, disabled people claiming Sickness Benefits and Invalidity Benefits were largely exempt from these discourses; benefits were paid at a higher rate and claimants were exempt from conditionality.
The introduction of Incapacity Benefit in 1995 changed this. I have argued that during the New Labour Governments, the long term sick and disabled were in the process of becoming viewed as another group of unemployed people in a policy sense, with an increasing focus on distinguishing between those who were ‘genuinely’ ill or disabled, and consequently still deserving of help, and those whose legitimacy as a claimant was called in to question.
In addition to examining policy change, it is also necessary to acknowledge that policy is not always implemented as it is intended. This is because of the discretion of those tasked with implementing policy alongside the impossibility of full implementation of most policies. The work of Lipsky (1980) showed that the opinions and professional status of workers together with the need to limit demand for services play a crucial part in shaping policy on the ground. Having outlined the small amount of existing research, the chapter ended by showing opportunities for discretion within Pathways to Work. The next chapter will outline the research questions before detailing the research design adopted.
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