text stringlengths 5 5.67k |
|---|
Insofar as such information is of a general kind, there can be no doubt that it is in everyones interest that the Jobcentre adviser provides it to a claimant either in written form or via the website, with an explanation (preferably in writing) as to where and how it can be accessed. Ratio |
If that is not done, it may be harder evidentially for the Secretary of State to show that a claimant has been given all the information fairly required in order to be enable him or her to make an informed decision. Ratio |
However, the critical question is whether the claimant is in fact given by one means or another all the information which is fairly and reasonably required. Ratio |
If the Jobcentre adviser does what the sbwa Adviser Guidance requires, the Secretary of States public law duty will have been discharged. Ratio |
On the uncontradicted evidence of Miss Reilly, that did not happen in her case, but the court does not have a basis for concluding that the Adviser Guidance was routinely ignored. Ratio |
In relation to the CAP, there is no comparable evidence about the instructions given to Jobcentre advisers at the pre-referral stage. Ratio |
There is some correspondence between Mr Wilson and the relevant Jobcentre personnel, but it does not take matters very far. Ratio |
Mr Walsh has not set out or produced any document showing what instructions were given to Jobcentre advisers about any information which they were to give to a claimant regarding the CAP before serving a notice requiring him or her to take part in it. Ratio |
The letters produced by Mr Wilson show that he was told on a number of occasions by letter that if he wanted more information he could find it out from the adviser at the Jobcentre. Ratio |
However, his uncontradicted evidence is that on receipt of those letters he asked for further information from the Jobcentre adviser, who said that she was unable to give him any. Ratio |
The nearest document corresponding to the sbwa Adviser Guidance which Mr Walsh has produced is a document issued by the department to CAP providers entitled Community Action Programme (CAP) Provider Guidance. Ratio |
The document goes into considerable detail about the nature of the scheme and the providers duties. Ratio |
It was published on the departments website at www.dwp.gov.uk/supplying-dwp/what-we-buy/welfare-to-work-services/provider- guidance/community-action-programme.shtnl. Ratio |
This document recognises that, in designing a work programme, account must be taken of the personal circumstances of the claimant, such as whether he or she has caring responsibilities; but it is plain that it is left to the provider to decide the details of what the participant is to be required to do after an initial... |
The inability of the Jobcentre adviser to answer Mr Wilsons questions is readily explained by the sequence of events, whereby the service of the notice under regulation 4, which required details to be given of what a claimant was required to do, occurred at a time when those details remained to be determined by the job... |
For the reasons already explained, the Secretary of State owed a duty as a matter of fairness to see that Miss Reilly and Mr Wilson were respectively provided with sufficient information about the sbwa scheme and the CAP, in order for them to be able to make informed and meaningful representations to the decision-maker... |
However, it would be wrong to be prescriptive as to how that information should be given. Ratio |
It is a proper matter for a court to determine whether, and if so what, information is required to be communicated by the government, and whether a particular means of communication satisfied that requirement. Ratio |
However, it should not, absent unusual circumstances, be for the court to prescribe a specific means of communication. Ratio |
In this case, it would involve the court going too far if it was to rule that descriptions of the schemes must, as a matter of law, be published to the world at large. Ratio |
The desirability of publication in the manner described in para 65 above is obvious, but practical desirability does not equate to legal requirement. Ratio |
Further, as this case illustrates, Mr Wilson was none the wiser for the fact that the CAP Provider Guidance was published on the departments website. Ratio |
A failure to see that a claimant was adequately informed before service of a notice under regulation 4 would be likely to, but would not necessarily, vitiate the service of the notice. Ratio |
That would depend on whether the failure was material. Ratio |
Public law is flexible in dealing with the effects of procedural failures. Ratio |
Ultimately the issue must be determined by reference to the justice of the particular case. Ratio |
If the effect of the lack of information given to a claimant materially affected him or her by removing the opportunity of making representations which could have led to a different outcome, it would normally be unjust to allow the notice to stand. Ratio |
If it was immaterial on the facts, justice would not require the notice to be set aside. Ratio |
The respondents seek a declaration that the Secretary of State was lawfully required to publish and make available to jobseekers the terms of schemes established under section 17A. For the reasons given, that is to state the Secretary of States duty too broadly and prescriptively. Ratio |
We have stated the nature of the Secretary of States duty in para 73 above and do not consider it necessary to grant relief by way of a formal declaration to that effect. Ratio |
On the facts of the present case, there was a failure to provide either Ms Reilly or Mr Wilson with adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required. Ratio |
This would have been a ground for treating the notice served on Mr Wilson as ineffective if it had otherwise complied with the requirements of the statute, but we have already held that it was ineffective and do not consider that any further relief is required. Ratio |
The fourth issue: Article 4 of the European Convention on Human Rights STA |
The final point which needs to be considered is the contention that the 2011 Regulations fell foul of article 4, and that, by requiring Miss Reilly to work pursuant to the 2011 Regulations meant that her article 4 rights were infringed. Ratio |
The Court of Appeal dealt with the point somewhat delphically, essentially on the basis that it took matters no further, in the light of the decisions they had reached on the other points at issue. Ratio |
Article 4 provides: 1. STA |
No one shall be held in slavery or servitude. STA |
2 STA |
No one shall be required to perform forced or compulsory labour. STA |
3 STA |
For the purpose of this article the term forced or compulsory labour shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, ... |
Ms Lievens case that article 4 has been infringed rests, unsurprisingly, on paragraph 2 of the article, not paragraph 1. Ratio |
Further, the only basis upon which the alleged infringement of article 4 is maintained is that the effect of the 2011 Regulations being invalid (and of her being misinformed as to her rights) is that the requirement that Miss Reilly work for Poundland as a condition of retaining her jobseekers allowance was unlawful, a... |
Ms Lievens argument involves two steps. ARG |
First, Ms Reillys work at Poundland was exactedunder menace of [a] penalty, ie disallowance of jobseekers allowance, and was therefore prima facie forced labour, and for that she relies on the decision of the Strasbourg court in Van Der Mussele v Belgium (1983) 6 EHRR 163, para 34. ARG |
Secondly, the Secretary of State could not rely on article 4.3(d) because the illegality of the regulations and the notice prevented the Secretary of State being able to argue that the work was part of Ms Reillys normal civic obligations. ARG |
In our judgment the argument fails at the first step. Ratio |
As the court noted in Van Der Mussele at para 32, article 4 was largely based on Convention 29 of the International Labour Organisation, the main aim of which was to stop exploitation of labour in the colonies. Ratio |
Forced labour is not fully defined and may take various forms, but exploitation is at its heart. Ratio |
Article 4.3 contains particular instances of obligatory labour which are common features of life in democratic societies and do not represent the mischief at which the article is aimed. Ratio |
It is important to understand, as the court explained in Van Der Mussele at paras 37 and 38, that article 4.3 is not intended to limit the exercise of the right guaranteed by article 4.2 (ie provide an exception to a right otherwise conferred by article 4.2), but to delimit (ie show the bounds of) the very content of t... |
The diverse instances identified in article 4.3 are grounded on the governing idea of the general interest, social solidarity and what is in the normal or ordinary course of affairs. Ratio |
Therefore even where there exists a risk comparable to the menace of a penalty, it is necessary to consider, in the light of the underlying objectives of article 4, whether the service required of an individual falls within the prohibition of compulsory labour. Ratio |
The argument advanced by Ms Lieven that any work done under menace of a penalty imposed by the state contravenes the prohibition of forced labour under article 4 unless it comes within one or other of the paragraphs of article 4.3, thus involves a wrong approach to the nature and structure of the article. Ratio |
In the present case we are concerned with a condition imposed for the payment of a claim for a state benefit. Ratio |
Jobseekers allowance, as its name suggests, is a benefit designed for a person seeking work, and the purpose of the condition is directly linked to the purpose of the benefit. Ratio |
The provision of a conditional benefit of that kind comes nowhere close to the type of exploitative conduct at which article 4 is aimed. Ratio |
Nor is it to the point that according to Ms Reilly the work which she did for Poundland was unlikely in fact to advance her employment prospects. Ratio |
Whether the imposition of a work requirement as a condition of a benefit amounts to exacting forced labour within the meaning of article 4 cannot depend on the degree of likelihood of the condition achieving its purpose. Ratio |
Attempts to argue that the attachment of a work condition to the payment of state unemployment benefit contravened article 4 have failed at Strasbourg. Ratio |
There are three reported instances. Ratio |
In X v Netherlands (1976) 7 DR 161, the applicant was a specialised worker in the building industry. PRE |
He claimed unemployment benefit and was required as a condition of payment to accept work which he considered to be unsuitable for a person with his qualifications and socially demeaning. PRE |
He refused the offer and brought a complaint of a violation of article 4. PRE |
The Commission declared the complaint inadmissible, observing that it was open to the claimant to refuse the work and that its acceptance was only a condition for the grant of unemployment benefit. PRE |
There could therefore be no question of forced or compulsory labour within the meaning of article 4. PRE |
In Talmon v Netherlands [1997] EHRLR 448 the applicant was a scientist. PRE |
He claimed unemployment benefit and was required as a condition to accept work which he considered unsuitable. PRE |
Because of his refusal to do it, his benefit payments were reduced. PRE |
He complained that by having his benefits reduced he was being forced to do work to which he had a conscientious objection, contrary to article 4. PRE |
The application was declared manifestly ill-founded and inadmissible. PRE |
In Schuitemaker v Netherlands (Application No 15906/08) (unreported) 4 May 2010 the applicant was a philosopher by profession. PRE |
She claimed unemployment benefit and was told that her benefits would be reduced unless she was willing to take up a wider range of employment than she considered suitable. PRE |
She complained under article 4 that she was being forced to take up labour irrespective of whether it would be suitable for her. PRE |
The court held that her application was inadmissible. PRE |
It noted that the obligation of which she complained was in effect a condition for the granting of benefits, and it stated as a general principle that a state which has introduced a system of social security is fully entitled to lay down conditions which have to be met for a person to be eligible for benefits under tha... |
Van Der Mussele, on which Ms Lieven relies, was a different type of case. PRE |
The applicant was a trainee advocate. PRE |
He was required to represent at his own expense some criminal defendants who were entitled to legal aid. PRE |
The sanction if he refused to do so was that he would not be registered as an advocate. PRE |
He complained of a violation of article 4. PRE |
The obvious difference between that case and the present is that it was not a simple case of a conditional benefit, where the purpose of the benefit was intended to be enhanced by the condition. PRE |
Rather, it was a case of the state fulfilling its legal obligations to third parties at the expense of the applicant. PRE |
The court accepted, at para 32, that the menace of the penalty and the lack of voluntariness on the part of the applicant met the starting point for considering whether he had been subjected to forced labour in violation of article 4. PRE |
However, that was only the beginning of the inquiry. PRE |
To amount to a violation of article 4, the work had to be not only compulsory and involuntary, but the obligation to work, or its performance, must be unjust, oppressive, an avoidable hardship, needlessly distressing or somewhat harassing. PRE |
As we read the judgment, the court was not there setting out five different categories but was using a variety of expressions to elucidate a single underlying concept, which we have referred to as exploitation. PRE |
In Van Der Mussele, at para 40, the court concluded for a combination of reasons that there had been no forced labour within the meaning of article 4.2, having regard to the social standards generally obtaining in Belgium and in other democratic societies. PRE |
The court therefore considered it unnecessary to decide whether the work in question was in any event justified under article 4.3 (d). PRE |
We do not consider that the imposition of the work condition in this case, intended as it was to support the purpose for which the conditional benefit was provided, met the starting point for a possible contravention of article 4. Ratio |
If it did, we do not consider that it fell within article 4.2, having regard to the Strasbourg guidance and the underlying objective of the article. Ratio |
Does it make a difference to this analysis that what Ms Reilly was told about her obligation to take part in the sbwa scheme, as a condition of receiving jobseekers allowance, was unauthorised and wrong as a matter of domestic law? The answer is No. The fact that the requirement was invalid does not of itself mean that... |
The logic of the contrary argument would produce strange results. Ratio |
If, for example, a public sector employee were wrongly directed to do something which was in fact beyond the terms of his contract of employment, and the employee did as he was told from fear of disciplinary action, we do not accept that the invalidity of the order would of itself trigger a violation of article 4. Rati... |
Equally, if the 2011 Regulations had unjustifiably discriminated between jobseekers on the ground of gender, and hence had been unlawful, it cannot be right that anyone required to work pursuant to such regulations would therefore have had their article 4 rights infringed. Ratio |
Whether the requirement was invalid under domestic law and whether it involved a violation of article 4 are different issues, and proof of the former does not of itself determine the latter. Ratio |
Conclusion RPC |
Accordingly, were it not for the 2013 Act and the 2013 Regulations, we would have affirmed the order of the Court of Appeal. RPC |
In the light of the 2013 Act and the 2013 Regulations, however, a more subtly expressed form of order will be required, and we would invite counsel to try and agree the appropriate wording. RPC |
In the light of the 2013 Act and the 2013 Regulations, however, a more subtly expressed form of order will be required, and we would invite counsel to try and agree the appropriate wording. RPC |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.