R (on the application of Reilly (No 2)) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Lang DBE |
| Judgment Date | 04 July 2014 |
| Neutral Citation | [2014] EWHC 2182 (Admin) |
| Docket Number | Case No: CO/8003/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 July 2014 |
The Queen on the application of
[2014] EWHC 2182 (Admin)
Mrs Justice Lang
Case No: CO/8003/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tom Hickman (instructed by Public Interest Lawyers) for the Claimants
Mr James Eadie QC & Ms Amy Rogers (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 17 th & 18 th June 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mrs Justice Lang The Claimants seek a declaration of incompatibility, under section 4, Human Rights Act 1998 (" HRA 1998"), on the ground that the Jobseekers (Back to Work Schemes) Act 2013 ("the 2013 Act") is incompatible with their rights under Article 6 and Article 1 of the First Protocol ("A1 P1") to the European Convention on Human Rights ("ECHR").
This claim follows on from R (Reilly & Wilson) v. The Secretary of State for Work and Pensions [2013] UKSC 68; [2013] 3 WLR 1276 ("Reilly No. 1"), brought by Ms Reilly, the First Claimant in this claim.
On 22 nd January 2014, Ouseley J. adjourned the permission application to be heard orally as a "rolled up hearing", with the substantive hearing to proceed immediately thereafter, should the Court grant permission. With the agreement of the parties, I heard submissions on both the permission application and the substantive claim together. I wish to record my gratitude to Mr Eadie QC and Mr Hickman for their excellent written and oral submissions and to Ms Rogers for her industry and expertise.
History
The Claimants, who were unemployed at the relevant time, were both in receipt of the social security benefit known as Jobseekers Allowance ( JSA). According to Mr Guest, senior civil servant in the Department of Work and Pensions ("DWP"), JSA is a subsistence-level benefit payable to persons who are actively seeking employment. The amount payable depends upon a jobseeker's circumstances, but in 2013/14 it was £56.80 per week for 16–24 year olds, and £71.70 for those aged 25 or over.
Both Claimants were required to participate in unpaid "work for your benefit" schemes, introduced by the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 ("the 2011 Regulations"). Pursuant to the Regulations, JSA could be withheld from those who refused to participate, as a sanction.
The First Claimant complied with the requirement and so did not suffer any sanction. However, attendance on the scheme meant she was unable to continue her voluntary work in a museum, which she hoped would lead to a career in museums. She was not sent any written notification, as required by the 2011 Regulations, and she was misinformed about the nature of the scheme by the Jobcentre adviser.
Together with Mr Wilson (who is not a Claimant in this second judicial review claim), she brought the first judicial review claim, Reilly No. 1. In the Administrative Court, on 6 th August 2012, Foskett J. held that there had been a breach of the notification requirements in reg. 4(2)(e) of the 2011 Regulations but rejected the Claimants' other grounds of challenge. After this judgment, the standard-form letters of notification were revised to overcome the defects identified by the Court.
The Court of Appeal allowed the Claimants' appeal and dismissed the Defendant's cross-appeal holding:
a) the 2011 Regulations were ultra vires, because they did not include a prescribed description of the schemes as required by section 17A Jobseekers Act 1995; and
b) the notification requirements in reg. 4(2)(c) and (e) of the 2011 Regulations had not been met (in Ms Reilly's case because she received no written notification and in Mr Wilson' case because the standard-form letter was defective). In consequence, there was no valid requirement to participate in the schemes and no valid sanction could have been imposed.
The Court of Appeal rejected the Claimants' other grounds, including the submission that the requirement to participate in the schemes was a breach of Art. 4 ECHR, which prohibits forced or compulsory labour.
On 12 th February 2013 (the day upon which the Court of Appeal handed down its judgment in Reilly No. 1), the Defendant made the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 ("the 2013 Regulations") which corrected the flaws which the Court of Appeal identified in the 2011 Regulations. In accordance with usual practice, the 2013 Regulations only applied prospectively, from the date when they were made.
The 2013 Act came into force a month later on 26 th March 2013. It had the effect of (1) retrospectively validating the 2011 Regulations, which the Court of Appeal had held to be ultra vires; and (2) retrospectively validating all notification letters that had failed to comply with the requirements of reg. 4 of the 2011 Regulations; and (3) retrospectively validating sanctions which had been imposed pursuant to the 2011 Regulations.
This claim, challenging the 2013 Act, was issued in the Administrative Court on 26 th June 2013.
In a judgment handed down on 30 th October 2013, the Supreme Court found that the 2011 Regulations were ultra vires, for the reasons identified by the Court of Appeal, and that Mr Wilson's standard-form notification letter did not comply with reg. 4(2)(c). The Supreme Court also held that the Defendant owed a common law duty of fairness to the Claimants to provide them with sufficient information about the schemes to enable them to make meaningful representations to the decision-maker before a notice requiring their participation was served upon them. The Court rejected the Claimants' other grounds, including the submission that the requirement to participate in the schemes was a breach of Art. 4 ECHR, which prohibits forced or compulsory labour.
However, by the date of the hearing before the Supreme Court, 30 th July 2013, the 2011 Regulations, together with the letters of notification issued pursuant to the 2011 Regulations, had already been retrospectively validated by the 2013 Act. Therefore the Supreme Court allowed the Secretary of State's appeal, but the order expressly stated, in paragraph 1, that the appeal was "allowed on the basis only that the Jobseekers (Back to Work Schemes) Act 2013 has come into force". In the hearing before me, Mr Eadie QC and Mr Hickman agreed that paragraph 2 of the order had been erroneously drafted. To give effect to the Court's judgment, it should have been formulated in similar terms to paragraph 1, allowing the Secretary of State's appeal against the decision that there had been a breach of the notification requirements in reg. 4(2) on the basis of the 2013 Act. It appears that the Defendant did not cross-appeal against the Court of Appeal's declaration that the Defendant acted unlawfully in requiring Ms Reilly to participate in the Scheme, presumably because she was not sent any letter of notification. Although the Court of Appeal's declaration in favour of Ms Reilly was not appealed, at the hearing Mr Eadie QC rejected the suggestion that it had remained in force following the 2013 Act and the order of the Supreme Court, allowing the Defendant's appeal. However, when the draft of this judgment was circulated, counsel for the Defendant sent a note to me saying: "The Secretary of State accepts that the declaration in favour of Ms Reilly has remained in force following the 2013 Act and the Order of the Supreme Court. The declaration reflects the fact that no letter was sent to Ms Reilly. That position is not affected by the 2013 Act."
The Supreme Court declined the Claimants' request to decide whether the retrospective validation was compatible with the ECHR, preferring to leave that question to be decided in the second judicial review claim which had already been issued by the date of the hearing. The Court expressed no view about the merits of that claim but it was a reason why it decided to hear and determine the appeal on the original grounds (per Lord Neuberger and Lord Toulson at [41]), even though the 2013 Act had rendered those grounds academic.
The Second Claimant was not a party in Reilly No. 1. but his position was affected by it. After initial attendance on a scheme for some months, the Second Claimant refused to participate further, and so his JSA payments were stopped for four specified periods by way of sanction. In total, JSA was withheld for nearly 37 weeks between 4 th May 2012 and 28 th March 2013, causing him financial hardship. He appealed successfully against the first three sanctions to the First-tier Tribunal ("FTT") which found that the standard-form notifications he had been sent did not meet the requirements of reg. 4 of the 2011 Regulations. It followed that the directions to participate in the schemes and the sanctions imposed for non-participation were unlawful. There remains a pending appeal by the Defendant to the Upper Tribunal against the FTT's decision, which was stayed pending the outcome of Reilly No. 1. The Second Claimant's appeal to the FTT against the fourth sanction was also stayed pending the outcome of Reilly No. 1. He has also been subject to JSA sanctions under other provisions at other times.
In his witness statement, the Second Claimant states that he has been in receipt of JSA...
To continue reading
Request your trial
-
Secretary of State for Work and Pensions CJSA 1266 2013
...Article 6(1) of the European Convention on Human Rights (“the Convention”). That challenge – R(Reilly (No.2) and Hewstone –v- SSWP [2014] EWHC 2182 (Admin) (“Reilly No.2”) - found that the 2013 Act did breach Article 6(1) of the Convention in respect of claimants who had appealed adverse sa......
-
TJ (JSA) CJSA 2431 2013
...Article 6(1) of the European Convention on Human Rights (“the Convention”). That challenge – R(Reilly (No.2) and Hewstone –v- SSWP [2014] EWHC 2182 (Admin) (“Reilly No.2”) - found that the 2013 Act did breach Article 6(1) of the Convention in respect of claimants who had appealed adverse sa......
-
R Otis Nkiwane v THE Secretary of State for Justice
...– citing, inter alia, Wilson v Secretary of State for Trade and Industry [2004] 1 AC 816 and R (Caitlin Reilly (No.2) and Daniel Hewstone) v The Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin), [2015] QB 573 (" Reilly"). ( 3) S.175 failed to make it clear that it was inten......
-
Reilly and Hewstone v Secretary of State for Work and Pensions
...and specifically under article 6 and article 1 of the First Protocol ("A1P1") 4. 16 By a judgment handed down on 4 July 2014 – [2014] EWHC 2182 (Admin), [2015] 1 QB 573– Lang J upheld the claim in so far as it was based on article 6 but not in so far as it was based on A1P1. She made a dec......
-
Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations
...and sequelae. Although the decisionin R (on the application of Reilly (No 2) and another) vSecretary of State for Work and Pen-sions [2014] EWHC 2182 (Admin), may cast some doubt on the ability of parliament to interferein litigation that is still proceeding – as long as Convention rights a......
-
Repressive Welfare States: The Spiral of Obligations and Sanctions in Social Security
...to the work schemes in other countries were critica lly scrutinised: the cu rious status of the labour relationship, the 40 [2014] EWHC 2182 (Admin).41 BSG, 16December 2008 A Z: B 4 AS 60/07 R.42 Available in the English language at: www.usoud.cz/ leadmin/user_upload/ustavni_soud_ww Repre......