For some time now, I have been concerned that the workfare programme is illegal, particularly around the contract issue.
So with a bit of time on my hands today, I decided to look at this in some more detail. I should point out that I am by no means a legal expert, although I do have an interest in the law and deal with statutory legislation in my job.
A contract can be written, verbal or implied and the structure of a contract (as a minimum) must take the following form;
4) Mutual assent
5) capable parties
In Chadwick v Pioneer Private telephone Co Ltd  1 All ER 522 523D the judge said,
“a contract of service implies an obligation to serve and it comprises some degree of control by the master”
There can be no doubt that the work provider is the “master” in the “relationship” as demonstrated in this publication from DWP (I’ve highlighted the sanction process information which illustrates a high degree of control)
Key interactions with Jobcentre Plus
21. While the participant is on the Work Programme, you will need to work
together with Jobcentre Plus in the following ways:
• Jobcentre Plus will notify you about any relevant changes in the
participant’s circumstances. There are also some changes we expect
you to inform us about (Further information can be found in Work
Programme Guidance Chapter 5 – Change of Circumstances).
• You are expected to facilitate the Sanctions process by engaging
promptly with Jobcentre Plus Decision Makers when participants have
not complied with mandatory activity.
• Where JSA participants are undertaking certain kinds of full-time
training, you will be expected to notify Jobcentre Plus that they need to
be moved onto Training Allowance (Further information regarding
Training Allowance can be found in Work Programme Guidance
Chapter 17 – Training Allowance).
• Some participants may be required to attend mandatory interventions
with Jobcentre Plus. For example JSA participants will be required to
attend their Jobsearch Reviews and other mandatory interventions at
Jobcentre Plus, you should ensure that nothing you require of
participants prevents them from attending these appointments.
22. You will be required to supply an exit report to Jobcentre Plus for those
participants who complete the Work Programme and return to Jobcentre
Plus. This will help Jobcentre Plus make a decision on the appropriate
next steps for that participant. (Further information regarding exit reports
can be found in Work Programme Guidance Chapter 10 – Completing the
Now, hopefully you’re still reading … so to underpin the master/servant relationship even more, Judge McKenna in Ready Mixed Concrete (South East) Ltd v Minister of pensions and National Insurance  2 QB 497 515 stated;
“a contract of service exists if these three conditions are fulfilled:-
i) the servant agrees that in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master
ii) He agrees, expressly or impliedly, that in the performance of that service, he will be subject to the others control in sufficient degree to make that other master
iii) The other provisions of the contract are consistent with it being a contract of service.
Clearly, the DWP must have considered this concept at some point because, Johnny Void over on the Void blog, discovered this (now removed) information on the DWP website
So the DWP are telling workfare providers that they must mandate participants in order to escape National Minimum Wage requirements.
Personally, I think they’ve got the wrong end of the stick. The mandation is a separate issue from the contractual one.
The point is a contract has been formed between DWP and the claimant, the DWP in effect sub contract their dirty work (sanctions) to the workfare provider.
It could be argued that the DWP have breached the contract because there has been no mutual assent and it could be argued that the claimant is not a capable party, especially if the claimant is ill, disabled, vulnerable or has mental health issues.
So those are my thoughts that I have been mulling over;I don’t know if there are any legal minds out there who will either tell me I am wrong or alternatively explore this issue after all, as far as the DWP and it’s ministers go, I have a saying;
No matter how high you think you are, the Law is ALWAYS above you