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ESA - Caution Voluntary Work Part 2 (Read 50 times)
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ESA - Caution Voluntary Work Part 2
23.08.12 at 19:24:47
Carla can appeal against the decision and argue that the charity couldn’t afford to pay for the other work she did and that it was reasonable for her to do the work for nothing. There is no guarantee, however, that this argument will succeed.
In addition, the National Minimum Wage Unit may become involved. They may make a ruling that Carla should have received the minimum wage for all the hours she spent working at the sanctuary and oblige the sanctuary to pay her and anyone else in similar circumstances for the unpaid work they did. Not only will this have serious repercussions for Carla and the other volunteers, but it may also lead to severe financial difficulties for the charity and its trustees.
There are currently a number of charities and volunteers around the country who are in exactly this position. So, if you do any voluntary work for an organisation don’t also work for them as a paid employee.
It may not count as voluntary work if other people get paid for doing the same work.
Trevor worked in a call centre for several years before developing fibromyalgia and having to stop work. Trevor has now been incapable of work for over a year and gets a disability premium in his income support and full housing benefit for his rented flat.
Trevor feels he is now much recovered and is thinking about returning to work.
However, he has looked at the benefits situation and realises that if he starts off parttime he will be considerably worse off than if he stayed on his benefits. He isn’t sure he could cope with full-time work, however.
With the help of a local agency he arranges with a call centre that he can come in for a few weeks and work there as a volunteer. That way, Trevor feels, he can try out working full-time and if it doesn’t work out he can just stop again without either him or the call centre being any worse off. Because the work is unpaid, Trevor doesn’t tell the DWP about it.
If the DWP find out they are likely to argue that it was not reasonable for Trevor to do the work for nothing because the call centre is not a charity or not-for-profit company and other people get paid for doing the same work. Trevor will be deemed to have been receiving the same wage as other staff at the call centre, his income support will be stopped and he will be facing a decision that he must repay overpayments of both income support and other benefits such as housing benefit.
Trevor can appeal to a tribunal, arguing that in the circumstances it was reasonable for him to work for free, but there is no certainty that he will win. This is particularly the case as the DWP is likely to argue that there are other schemes such as Work Preparation available for people to try out work whilst still on benefits. In addition, they may point out that because of the 8 week linking rule and the welfare to work rules, Trevor could have tried out paid work and still returned to his old benefits if he became unwell again, so it was not reasonable for him to work for nothing.
Duleep has mild learning difficulties. He has also had several episodes of severe depression and has become quite obsessional. He does things slowly but very carefully and accurately. Because he likes gardens and gardening his family persuade a nearby garden centre to let him work there for a few hours a day as a volunteer. Mostly he waters multipots of seedlings, a job he does very slowly but very carefully, ensuring that each plant gets its share of water. Because the plants will die without daily watering Duleep is expected to turn up every day, something he is happy to do. Duleep’s family and the garden centre both regard his presence there as therapy rather than work – he has not had an episode of depression since starting as a volunteer at the garden centre – and the garden centre manager has made it clear that Duleep is much too slow in his work to ever have a chance of being an employee. Because the work is unpaid Duleep does not tell the DWP about it.
Once again, if the DWP find out about this work they may decide that it is not voluntary and that Duleep was not entitled to the benefits he received on the basis of being incapable of work. They may argue that the work Duleep does is not for a charity and that it is work that someone else would have had to be paid to do and it is not, therefore, reasonable for Duleep to work for nothing.
Duleep could appeal and argue that, because the employer would not have taken him on for money and because the work is good for his emotional health it was reasonable for him to work for nothing. But there is no guarantee that a tribunal would accept this argument and indeed, they might take the view that the voluntary work was little more than exploitation and not something they could support, whatever the cost to Duleep personally.
It may not count as voluntary work if you get expenses for costs you haven’t incurred.
Sheila has arthritis which makes walking very difficult and painful and she has been found incapable of work as a result. Sheila works as a volunteer advisor for a local charitable advice agency. She goes in three times a week, working for three hours each shift, and has always kept the DWP informed about her voluntary work including the fact that she receives travelling expenses, although not the amount.
All the advisors receive a flat rate of five pounds per day travelling expenses. The charity prefers to pay this way because it allows them to budget more effectively.
They also feel that if volunteers make a few pounds on their travelling expenses that is a very small reward for all the hard work they do for their community. Sheila is actually quite local and it costs her only 50p on the bus to get to the centre.
If the DWP discovers that Sheila is receiving payment for expenses that she has not actually incurred in the course of doing her voluntary work, they may decide that these payments are not expenses at all but income from employment. This may also mean the work is no longer considered to be voluntary work but paid employment and that benefits such as income support paid on the basis of Sheila being incapable of work have been overpaid.
In addition, the National Minimum Wage Unit may become involved and decide that all the volunteers should have been paid the minimum wage. At least one charity has been caught this way through paying flat rate expenses.
Sheila could go to a tribunal and argue that the payment of flat rate expenses was reasonable because doing individual expenses would have been too costly and cumbersome for that agency. She could also argue that the flat rate was based on actual research on what volunteers there spent on travelling and a genuine calculation had been used to come up with an average. But there is, as always, no guarantee that she would win her appeal.
N.B. In November 2007 the Department for Business Enterprise and Regulatory
Reform (BERR, formerly the Department for Trade and Industry) published a report
on the National Minimum Wage and Voluntary Workers which states that:
 “Training beyond the needs of the volunteering opportunity, or reimbursement of childcare expenses represent a significant benefit in kind and as such would change the nature of the relationship between voluntary worker and qualifying organisation.”
The National Minimum Wage Unit has confirmed that they do not regard childcare costs as a legitimate expense for volunteers, in spite of the fact that many voluntary organisations pay such expenses because the volunteer would not be able to offer their services otherwise. A large number of charities are currently lobbying the government on this matter.
Staff at one agency we trained said that they had to attend a tribunal with one of their volunteers after it was decided by the DWP that expenses he was receiving counted as income rather than expenses. The project was one in which volunteers go round tidying up disabled and older people’s gardens when they have become overgrown.
Not surprisingly volunteers clothing gets dirty doing this.
The expenses the DWP decided were actually income? Free soap powder given to the volunteers to wash their clothes!
Happily the tribunal agreed with the agency that this was a legitimate expense – but a great deal of distress and inconvenience was caused to the volunteer and the project.
How to protect yourself
On the following page we set out eight simple steps you can take which should ensure that any voluntary work you do really will be voluntary work and that neither the DWP nor the Minimum Wage Unit will be able to argue differently.
If, having read this guide, you are concerned that there may be problems with voluntary work you are already doing then don’t panic, but do contact your local advice agency or similar organisation and discuss the matter with a welfare rights worker. You can find out how to find welfare rights workers in your area by using the free Guide to getting help with your benefits on our website.
If your organisation is concerned that they may be involved in voluntary work placements which are potentially in breach of welfare benefits or minimum wage regulations, please feel free to contact Benefits and Work.
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