Is a welfare-to-work contractor an agent of the DWP?

Can anyone point me to the statutory provision which describes the role and status of welfare-to-work contractors?

Our client was a recipient of income support on the basis of incapacity.  He made enquiries about permitted work at the Jobcentre and was told that JC+ no longer dealt with PW and that he should go to Working Links, the local W2W provider.

Working Links explained the PW rules to him and sorted all the paperwork.  Unfortunately, they omitted to tell him either that he would forfeit all income in excess of his earnings disregard, or that he must inform the DWP of any earnings.  Although Working Links did eventually inform JC+ that he was undertaking PW, this was not before our client had incurred an IS overpayment, which they now seek to recover.

We would like to argue that Working Links acts as an agent for the DWP.  Would this argument hold water?

I think the following can also be submitted:

a) Client told by JC+ to contact the contractor (it will be important to establish precisely what client asked and what was said to them).  This means that IF client did disclose the permitted work to JC+, then their disclosure duty has been complied with. 

In the alternative, b) The fact they were referred to the contractor to answer the enquiry by a DWP officer means that the duty to notify the paying office was modified by telling them, to talk to the contractor.  R(A) 2/06 may be of assistance - the duty to notify a change of circs under reg 32(1B) Claims and Payments Regs can be modified by oral representations by a DWP officer.  The duty is only to notify changes which the client “might reasonably be expected to know might affect” their benefit entitlement - as they are told to discuss the matter with the contractor, again they have fulfilled the disclosure duty.

c)  There may be a clause in the contract between DWP and the contractor which requires the contractor to pass on such information to JC+ within a short timescale (I’d find it difficult to believe that there’s no such clause).  May possibly not be disclosed under Freedom of Information Act 2000 as it may be commercially confidential (though you can still ask).  A Tribunal Judge could direct its disclosure.  This may reveal the existence of an agency by the contractor on behalf of DWP

A little further research has enabled me to establish that

1) for the purposes of incapacity for work, the Social Security (Incapacity Benefit Work-focused Interviews) Regs 2008 reg 11, permits exercise of certain functions relating to work-focused interviews to be undertaken by persons providing services to the Secretary of State;

2) for ESA, The Wefare Reform Act 2007 s 16 and ESA Regs reg 62, permit contracting out of certain functions relating to WFIs.

None of these provisions appear to delegate any functions relating to permitted work.  I’m not sure where this leaves my proposed argument that Working Links act as an agent for the DWP now.

I doubt this helps but HM government is a significant shareholder in Working Links.

The link below from the 08/09 (page 66) seems to suggest that the Secretary of State for Works and Pensions owns a third.

http://www.bis.gov.uk/assets/biscore/shex/files/annualreport0809.pdf

This would seem to be good so far.

There appears to have been an attempt to break the link with the DWP by transferring the share to the Shareholder executive.

Contact details below.

http://www.bis.gov.uk/policies/shareholderexecutive/structure/individual-businesses/working-links

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Grateful thanks to all contributors.

Ruth