Workfare and the First-tier Tribunal

Employment programmes for welfare recipients – often referred to as “workfare” – are highly controversial.  In Department for Work and Pensions v Information Commissioner and Zola (EA/2012/0207,0232 and 0233), the First-tier Tribunal considered three FOIA requests for information about companies participating in such programmes.  The Tribunal ordered disclosure, rejecting the Department’s reliance on the exemptions in FOIA section 43(2) (prejudice to commercial interests) and section 36(2)(c) (prejudice to the effect conduct of public affairs).

The case related to three programmes run by the DWP:  Mandatory Work Activity (MWA); Work Experience (WE); and the Work Programme (WP).  MWA provided short term work placements in the local community, usually with a charitable organisation.  WE provided placements for 18-21 year old Jobseekers’ Allowance claimants.  WP was aimed at those considered to be at risk of becoming long-term unemployed.  For each programme, the Government entered into contracts with providers, and these (or their sub-contractors) in turn arranged work placements with various organisations.  The three requests sought information as to the identity of organisations that had hosted placements.

The Information Commissioner required the DWP to provide the requested information.

The Commissioner rejected the DWP’s reliance on section 43(2), holding that the exemption was not engaged.  The Commissioner considered that the risk of providers withdrawing from the scheme as a result of disclosure would have been capable of engaging section 43(2), but that on the evidence any risk of this nature was speculative.  Any harm consisting of increased welfare costs was financial rather than commercial in nature, and did not engage section 43(2).  The Commissioner noted the existence of campaign groups and websites opposed to workfare, but said that the extent to which these had influenced any past withdrawals from the scheme was unclear.  In order to establish that section 43(2) was engaged, the Commissioner considered that the DWP would have had to indicate how many organisations would have been likely to withdraw as a result of disclosure, and what it would have cost to find alternative work placements; this had not been done.

The Commissioner also rejected the DWP’s reliance on section 36(2)(c).  Although the exemption was engaged, on the basis of the opinion of the qualified person (the then Minister for Employment), the public interest in maintaining the exemption was outweighed by the public interest in disclosure.

Before the Tribunal, the DWP disputed the Commissioner’s categorisation of higher welfare and related costs as being “financial” rather than “commercial” in nature.  It contended that the Commissioner had required an undue level of detail from the DWP in support of its claim that section 43(2) was engaged.  In relation to section 36(2)(c), the DWP argued that disclosure would have been likely to lead to the collapse of the MWA scheme.  As to the public interest in disclosure, the DWP contended that this had been greatly over-estimated by the Commissioner: there was already information in the public domain as to the kinds of employers that were participating; there was little public interest in knowing which specific organisations were taking part within any particular area.

The DWP placed evidence before the Tribunal about a survey carried out by the DWP in October and November 2012.  The DWP had sought information from contractors, their sub-contractors, and organisations that had hosted placements; the DWP had asked for information about the perceived impact of public awareness of their involvement in the programmes.  In March 2013 some organisations had provided further information in support of the DWP’s stance of not releasing the names of placement hosts, and this was also put before the Tribunal by the DWP.

The Tribunal’s conclusion was that section 43(2) was not engaged; and that, although section 36(2)(c) was engaged, the public interest balance favoured disclosure.  The Tribunal would have reached the same conclusion as to the public interest under section 43(2), had that exemption been engaged.

In relation to section 43(2), any prejudice relating to increased cost of welfare payments was held to be financial rather than commercial in nature, and irrelevant to the exemption.  The Tribunal therefore focused instead on the risk that disclosure would lead participating organisations to withdraw from the schemes.  It referred to the “Boycott Workface” website, and various news articles, concluding that media coverage and comment were inevitable and that there was always an inherent risk that participants would be identified.  At the time of the requests there were some 200 names of participating organisations already in the public domain.  There had not been a “media frenzy” as a result of publication of these names.  At most, seven of the 200 names had come in for criticism which had perhaps resulted, or could have resulted, in their withdrawal; but the evidence even in these cases was unpersuasive.  The speculative views elicited by the DWP’s survey carried considerably less weight than these real-life examples of what had actually happened where specific organisations had been named.

In relation to section 36(2)(c), the public interest in disclosure outweighed any interest in maintaining the exemption.  The schemes were controversial; it was important for the public to see and examine the schemes and how participants performed.

Overall, the case is an example of the Tribunal’s readiness to scrutinise closely any reliance on section 43(2).  Speculation about what might happen following disclosure – even when presented in the form of a survey – carried little weight.  The Tribunal was much more interested in the specific examples of providers that had been named in the past; and in these cases, the Tribunal considered that the evidence did not support the DWP’s position.  Overall, the Tribunal’s approach seems to be that private sector bodies that become involved in a controversial Government programme can expect to be exposed to a degree of scrutiny and criticism; and the Tribunal is reluctant to use this as a basis for protecting those organisations from the effect of disclosure under FOIA.

Timothy Pitt-Payne QC