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According to its long title, one of the purposes of the 1995 Act was to provide for a jobseeker's allowance and to make other provision to promote the employment of the unemployed. STA |
Regulations made in 1996 included (i) provision for the circumstances in which the allowance was to be paid, (ii) requirements as to availability for employment, actively seeking employment, a Jobseekers Agreement, and (iii) sanctions in the event of non-compliance. STA |
There were subsequently many amendments to and additions to these Regulations. STA |
Section 1 of the 1995 Act provides, so far as material: (1) An allowance, to be known as a jobseekers allowance, shall be payable in accordance with the provisions of this Act. STA |
(2) Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he- (a) is available for employment; (b) has entered into a jobseekers agreement which remains in force; (c) is actively seeking employment; . STA |
(e) is not engaged in remunerative work.. STA |
Sections 17A and 17B were added to the 1995 Act by section 1(2) of the Welfare Reform Act 2009. STA |
Section 17A of the 1995 Act (section 17A) is headed Schemes for assisting persons to obtain employment: work for your benefit schemes etc, and it provides, so far as relevant: (l) Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in s... |
(2) Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment. STA |
(5) Regulations under this section may, in particular, make provision - (a) for notifying participants of the requirement to participate in a scheme within subsection (l); (b) for securing that participants are not required to meet the jobseeking conditions or are not required to meet such of those conditions as are sp... |
Section 17B(1) of the 1995 Act entitles the Secretary of State to do certain things [f]or the purposes of, or in connection with, any scheme under section 17A(1), including (a) mak[ing] arrangements for the provision of facilities and (b) provid[ing] support for arrangements made by other persons for the provision of f... |
Section 35 of the 1995 Act provides that, at least in the context of section 17A, prescribed means specified in or determined in accordance with regulations. STA |
The circumstances in which a jobseekers allowance is not payable, include, according to section 19(5), cases where the claimant: (a) has, without good cause, refused or failed to carry out any jobseeker's direction which was reasonable, having regard to his circumstances; (b) has, without good cause (i) neglected to av... |
The 2011 Regulations were purportedly made under section 17A, and they came into force in May 2011. STA |
Regulation 2 provided that the Scheme means the Employment, Skills and Enterprise Scheme and then went on to state: The Employment, Skills and Enterprise Scheme means a scheme within section 17A (schemes for assisting persons to obtain employment: work for your benefit schemes etc) of the [1995] Act known by that name ... |
Regulation 3 of the 2011 Regulations provided: The Secretary of State may select a claimant for participation in the Scheme. STA |
Regulation 4 of the 2011 Regulations stated: (1) Subject to regulation 5, a claimant (C) selected under regulation 3 is required to participate in the Scheme where the Secretary of State gives C a notice in writing complying with paragraph (2). STA |
(2) The notice must specify - (a) that C is required to participate in the Scheme; (b) the day on which C's participation will start; (c) details of what C is required to do by way of participation in the Scheme; (d) that the requirement to participate in the Scheme will continue until C is given notice by the Secretar... |
Regulation 5 of the 2011 Regulations set out the circumstances in which the requirement to participate in a scheme ceases. STA |
Regulation 6 provided: A claimant who fails to comply with any requirement notified under regulation 4 is to be regarded as having failed to participate in the Scheme. STA |
Regulation 7 provided an opportunity for a claimant who fails to participate in the Scheme to show good cause for that failure. STA |
The consequences of failure to participate in the Scheme were set out in regulation 8, and they are often known as benefits sanctions: (1) Where the Secretary of State determines that a claimant (C) has failed to participate in the Scheme, and C has not shown good cause for the failure in accordance with regulation 7, ... |
(2) In the case of a jobseeker's allowance . STA |
the appropriate consequence is that Cs allowance is not payable for the period specified in paragraphs (4) to (7) (the specified period). STA |
(4) The period is 2 weeks in a case which does not fall within paragraph (6) . STA |
(6) [T]he period is 26 weeks where - (a) on two or more previous occasions the Secretary of State determined that Cs jobseeker's allowance was not payable or was payable at a lower rate because C failed without good cause to participate in the Scheme, and (b) a subsequent determination is made no more than 12 months af... |
The facts: general FAC |
In March 2012, jobseekers allowance was being received by just over 1.6 million people aged over 18, of whom around 357,000 had been in receipt of the allowance for more than a year. FAC |
About 480,000 were aged under 24, of whom 55,000 had been in receipt of the allowance for more than a year. FAC |
Forecast expenditure on the allowance in the year 2011/12 was just under 5bn. FAC |
In a nutshell, the amendments to the 1995 Act effected in 2009, including section 17A, envisaged that regulations would (i) require participants to undertake unpaid work, or work-related activity, during a prescribed period, to improve their prospects of employment and (ii) impose sanctions (in particular, loss of the ... |
Those regulations materialised as the 2011 Regulations, which came into force on 20 May 2011, and, as explained above, provided for the Scheme. FAC |
A variety of work for your benefit programmes have been made under the 2011 Regulations. FAC |
The present appeals concern two such schemes. FAC |
The sector-based work academy scheme (sbwa scheme) was launched in August 2011, and is administered by advisers at social security offices, or Jobcentres, which, until 2011, were run by an executive government agency under the name of Jobcentre Plus. FAC |
The stated target of the sbwa scheme is those who do not have any serious barriers to finding work, but who would benefit from a short period of work-focused training and work-experience placement linked to a genuine job vacancy. FAC |
The Community Action Programme (CAP) was launched in November 2011, and its stated aim is to help very long-term unemployed claimants back into work. FAC |
It provides up to six months work experience, and is administered by private companies, one of which is called Ingeus Ltd (Ingeus), most of whose recruits are referred or identified by Jobcentres. FAC |
The facts relating to Miss Reilly and Mr Wilson FAC |
Miss Reilly was born in 1989 and first claimed jobseekers allowance in August 2010. FAC |
Three months later, she got a paid work experience placement at a museum pursuant to a Government scheme, and was paid the minimum wage subsidised by that scheme. FAC |
When that placement ended, she continued to work voluntarily at the museum, with a view to pursuing a career in museums. FAC |
She has always complied with the jobseeking conditions, and has been committed to seeking employment. FAC |
Miss Reilly is no longer claiming jobseekers allowance as she has obtained paid employment at a supermarket. FAC |
From 31 October 2011, Miss Reilly participated, albeit unwillingly, in the sbwa scheme. FAC |
This involved a weeks training, a two-week unpaid work placement at a Poundland store, and a further weeks training. FAC |
She participated in the scheme because her Jobcentre adviser informed her that her participation in the scheme was mandatory. FAC |
That was wrong: it is not mandatory to take part in the sbwa scheme, although once a claimant accepts a place, she must complete the scheme. FAC |
She asserts that had she been correctly informed about the scheme, she would have exercised her right not to participate in it. FAC |
Contrary to regulation 4 of the 2011 Regulations (regulation 4), Miss Reilly did not receive any written notice concerning her participation in the sbwa scheme. FAC |
Mr Wilson was born in 1971, and worked as a qualified Heavy Goods Vehicle driver from 1994 to 2008, since when he has been unemployed. FAC |
Mr Wilson started receiving jobseekers allowance in 2009. FAC |
In August 2011 his Jobcentre adviser told him that in order for him to continue to receive his jobseekers allowance he had to take part in a new programme that was under trial in his area. FAC |
He was given a letter stating that if he did not find a job within three months he would be referred to the CAP which would involve up to six months of near full-time work experience with additional weekly job search support requirements. FAC |
The letter informed him that a refusal to participate could result in the loss of his benefit, and that, if he had any questions, he should ask his personal adviser. FAC |
At a meeting in September 2011, Mr Wilsons adviser gave him another letter stating that if he had not found a job in two months, the CAP would commence. FAC |
Again, it informed him that he might lose his benefit if he did not participate in the CAP. FAC |
In October 2011, at another meeting with his adviser, he was given a letter to similar effect with the period of one month being specified as the deadline. FAC |
In November 2011, Mr Wilson was selected to participate in the CAP. FAC |
Once a person is selected in this way, participation in the CAP scheme is mandatory. FAC |
On 16 November 2011, Mr Wilson received a letter from Jobcentre concerning the CAP scheme, which stated, inter alia: At your interview today, your adviser explained that you had to take part in the [CAP] from 16/11/11. FAC |
Ingeus will be in touch with you shortly to arrange this. FAC |
The [CAP] will involve doing up to six months of near fulltime work experience, with some additional weekly job search support The [CAP] is an employment programme established in law under the [2011 Regulations]. FAC |
To keep getting Jobseekers Allowance, you will need to take part in the [CAP] until you are told otherwise or your award of jobseeker's allowance comes to an end; and complete any activities that Ingeus asks you to do. FAC |
If you dont take part in the [CAP], under the [2011 Regulations] your jobseekers allowance may be stopped for up to 26 weeks. FAC |
You could also lose your National Insurance credits. FAC |
At a subsequent meeting with Ingeuss representative, Mr Wilson was told that his placement was due to begin on 28 November 2011 with an organisation that collects and renovates used furniture and distributes it to needy people, and that his participation was mandatory. FAC |
He was told he would be required to work for 30 hours a week for 26 weeks or until he found employment of 16 hours a week or more. FAC |
These details were not set out in writing. FAC |
Mr Wilson explained that he had strong objections to being required to undertake labour unpaid and therefore was not prepared to work for free, particularly for such a long period of time. FAC |
As a result of his refusal to participate in the CAP scheme, a two week benefits sanction was imposed on Mr Wilson in early May 2012. FAC |
Later the same month, it was decided to impose two further benefits sanctions as a result of Mr Wilsons successive failures to attend a job search session with Ingeus on two occasions during April 2012. FAC |
In total, these second and third benefits sanctions resulted in a cessation of benefit payments for 6 months. FAC |
These proceedings FAC |
In early 2012, Miss Reilly and Mr Wilson issued separate claims for judicial review claims challenging the 2011 Regulations, as well as the sbwa scheme and the CAP, on four grounds: i) That the 2011 Regulations are ultra vires section 17A because they fail to prescribe (i) a description of the sbwa scheme or the PAC, (... |
The Secretary of State challenged each ground (save that he admitted a breach of regulation 4 in relation to Miss Reilly). FAC |
Foskett J granted each claim on ground (ii) and dismissed them on grounds (i), (iii) and (iv): [2012] EWHC 2292 (Admin). FAC |
In relation to ground (ii), the judge held that the Secretary of State had breached regulation 4(2), by the failure to provide any written notice to Miss Reilly (such breach being admitted), and regulation 4(2)(e), by failing to provide information about the consequences of failing to participate in the Scheme to Mr Wi... |
The judge also held that, the consequence of the breach of regulation 4 was that no sanctions could be lawfully imposed on Miss Reilly or Mr Wilson for failure to participate in the scheme, but the failure did not make it unlawful for the Secretary of State to require an individual to participate in either scheme. RLC |
Miss Reilly and Mr Wilson appealed against (a) Foskett J's findings on grounds (i), (iii) and (iv), (b) in relation to ground (ii), his rejection of the contention that the written notice supplied to Mr Wilson also breached regulation 4(2)(c), and (c) his rejection of the contention that the consequence of a breach of ... |
The Secretary of State cross-appealed the finding of a breach of regulation 4 in Mr Wilson's case. FAC |
The Court of Appeal (a) allowed the appeal of Miss Reilly and Mr Wilson on grounds (i) and (ii), (b) dismissed the Secretary of State's cross-appeal, (c) quashed the 2011 Regulations, (d) declared that the Secretary of State acted unlawfully in requiring Miss Reilly to participate in the sbwa scheme, and (e) dismissed ... |
As decided by the Court of Appeal, a) The 2011 Regulations are ultra vires section 17A, as they contain insufficient details about the sbwa scheme or the CAP, and should be quashed (although the other two grounds of attack described in para 27(i) above were rejected); b) In any event the requirements of regulation 4 we... |
The Secretary of State appeals to this court against conclusion (a) and, in relation to Mr Wilson, against conclusion (b); and Miss Reilly and Mr Wilson cross-appeal against conclusions (c) and (d). FAC |
The 2013 Regulations and the 2013 Act STA |
On 12 February 2013 (the same day as the Court of Appeal handed down judgment in these proceedings), the 2013 Regulations came into force. STA |
They were proleptically drafted with a view to addressing the conclusion which was in fact reached by the Court of Appeal, namely that the 2011 Regulations were ultra vires section 17A, and to ensuring that the Government could continue to require claimants to participate in work for your benefit schemes. STA |
Regulation 3 of the 2013 Regulations is headed Schemes for Assisting Persons to Obtain Employment, and para (1) states that The schemes described in the following paragraphs are prescribed for the purposes of section 17A(1) (schemes for assisting persons to obtain employment: work for your benefit schemes etc) of the A... |
The following seven paragraphs of regulation 3 of the 2013 Regulations describe seven different schemes, which were the schemes which had been brought in purportedly under the 2011 Regulations, and they included: (4) Full-time Training Flexibility is a scheme comprising training of 16 to 30 hours per week, for any clai... |
(6) The sector-based work academy is a scheme which provides, for a period of up to 6 weeks, training to enable a claimant to gain the skills needed in the work place and a work experience placement for a period to be agreed with the claimant, and either a job interview with an employer or support to help participants ... |
(8) The Work Programme is a scheme designed to assist a claimant at risk of becoming long-term unemployed in which, for a period of up to 2 years, the claimant is given such support as the provider of the Work Programme considers appropriate and reasonable in the claimant's circumstances, subject to minimum levels of s... |
Regulation 4(1) of the 2013 Regulations provides that [t]he Secretary of State may select a claimant for participation in a scheme described in regulation 3, and regulation 5 mirrors the notice requirements contained in regulation 4 of the 2011 Regulations. STA |
On 26 March 2013 (the same day as the Secretary of State sought permission to appeal the decision of the Court of Appeal), the 2013 Act came into force after having been fast-tracked through Parliament. STA |
The 2013 Act was plainly intended to undo the decision of the Court of Appeal, in that, pursuant to subsections (2), (3), (4)-(8), and (10)-(12) of section 1, it retrospectively validates (i) the 2011 Regulations, (ii) the programmes listed in regulation 3(2) of the 2013 Regulations, (iii) notices issued under regulati... |
Subsection (14) of section 1 provides that the 2011 Regulations are to be treated as having been revoked by the 2013 Regulations on the coming into force of the 2013 Regulations. STA |
The 2013 Act is, we were told, currently the subject of a challenge in the Administrative Court on the ground that it does not comply with the Convention. STA |
The issues before this Court Ratio |
The substantive issues before us are the same as those before Foskett J and the Court of Appeal; they are set out in para 27 above, and the Court of Appeals conclusion on each issue is as summarised in para 31 above. Ratio |
It is convenient to take each of the four points in turn. Ratio |
However, before doing so, it is necessary to address the effect of the 2013 Regulations and the 2013 Act on this appeal and cross-appeal. ARG |
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