R (Reilly and another) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FOSKETT |
| Judgment Date | 06 August 2012 |
| Neutral Citation | [2012] EWHC 2292 (Admin) |
| Docket Number | Case No: CO/260/2012 & CO/1087/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 August 2012 |
[2012] EWHC 2292 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: CO/260/2012 & CO/1087/2012
Nathalie Lieven QC and Tom Hickman (instructed by Public Interest Lawyers Limited) for the Claimants
Paul Nicholls QC (instructed by DWP/DH Litigation and Employment Division) for the Defendant
Hearing dates: 26–27 June 2012
Further written submissions: 24–30 July 2012
Introduction
These proceedings involve a challenge to the validity of the Jobseeker's Allowance (Employment and Enterprise) Regulations 2011 ('the Regulations') and two schemes made by the Secretary of State for Work and Pensions ('the Secretary of State') purportedly under the powers conferred by the Regulations. The two schemes or programmes directly under challenge are the sector-based work academy scheme (known as 'the sbwa scheme') and the Community Action Programme (known as 'the CAP') although it is clear that other schemes and programmes have been put in place pursuant to these regulations (see paragraph 25 below).
The proceedings are brought by Miss Caitlin Reilly in relation to the sbwa scheme and Mr Jamieson Wilson in relation to the CAP.
The matter came before me on a "rolled up" basis pursuant to a direction of Ouseley J made on 14 March 2012.
On the basis of the submissions I have received, both claims are arguable and I grant permission to apply for judicial review.
The challenges advanced
The first ground of challenge is that the Regulations are ultra vires the governing statutory provision, namely, section 17A of the Jobseekers Act 1995 ('the 1995 Act'), because the Regulations fail to prescribe a description of each scheme or the circumstances in which an individual can be required to participate in the scheme as, it is argued, section 17A requires. There is, it is argued, therefore, no legislative authority for either scheme. It is a root and branch challenge to the Regulations which, it is contended, should be quashed.
By way of an alternative contention if the first ground of challenge fails, it is argued that the Secretary of State must set out each scheme in a published policy that explains clearly the features of the scheme, including what type of work a person can be compelled to undertake, the circumstances in which they can be required to undertake such work and the period for which they can be required to do so, as well as the consequences of not participating, and that he has failed to do so in respect of either scheme. It is said that in consequence each scheme should be quashed.
The third ground for challenge arises from Regulation 4 of the Regulations which requires specific notice to be given to individuals of various matters including the details of what is required by way of their personal participation in a particular scheme and notice of the consequences of not participating. In Mr Wilson's case there is a dispute about whether this regulation was complied with which, it is said, gives rise to an issue of general importance as to what precisely Regulation 4 does require. In Miss Reilly's case it is accepted that there was non-compliance with Regulation 4, but there is a dispute about the consequences.
Finally, both Claimants raise issues about the scheme they either had embarked upon (in Miss Reilly's case) or was expected to embark upon (in Mr Wilson's case) under the Human Rights Act 1998, claiming that each scheme involved violation of Article 4 of the European Convention on Human Rights ('the ECHR') in that it required the performance of "forced or compulsory labour".
Each ground is contested by the Secretary of State.
For completeness I should record that during the hearing before me the question arose of whether the Regulations had been passed correctly in Parliament by using the negative resolution procedure. I gave the parties time to consider this after the completion of the hearing and it was confirmed subsequently that it was agreed that this was the correct procedure.
I will deal with the facts of each individual case later (see paragraphs 91–113) when I have considered the more general statutory and legislative background, but in summary Miss Reilly's case is that she participated in the sbwa scheme against her wishes, working for two weeks in a branch of Poundland, a budget retail outlet, and Mr Wilson's case is that he refused to participate in what for him was the compulsory CAP, under which he was required to undertake up to six months unpaid work for up to 30 hours per week, a refusal that led initially to the imposition of sanctions in the form of depriving him of his jobseeker's allowance for six months.
I should also say that I propose to deal with each of these grounds on its merits. I will return later to the arguments advanced by Mr Paul Nicholls QC on behalf of the Secretary of State that the claims are variously out of time, academic or are precluded by the availability of another remedy.
The statutory background
Section 1(1) and (2) of the 1995 Act make provision for a "jobseeker's allowance" to be payable to an individual if certain conditions are met which include that he or she is available for employment, has entered a jobseeker's agreement which remains in force and is actively seeking employment.
The Welfare Reform Act 2009 ('the 2009 Act'), section 1, introduced a new section 17A into the 1995 Act which provides as follows:
Schemes for assisting persons to obtain employment: "work for your benefit" schemes etc.
(1) Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment.
(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.
(3) In subsection (2) "work-related activity", in relation to any person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.
(4) Regulations under this section may not require a person to participate in a scheme unless the person would (apart from the regulations) be required to meet the jobseeking conditions.
(5) Regulations under this section may, in particular, make provision—
(a) for notifying participants of the requirement to participate in a scheme within subsection (1);
(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 specified in the regulations;
(c) for suspending any jobseeker's agreement to which a person is a party for any period during which the person is a participant;
(d) for securing that the appropriate consequence follows if a participant has failed to comply with the regulations and it is not shown, within a prescribed period, that the participant had good cause for the failure;
(e) prescribing matters which are, or are not, to be taken into account in determining whether a participant has good cause for any failure to comply with the regulations;
(f) prescribing circumstances in which a participant is, or is not, to be regarded as having good cause for any failure to comply with the regulations.
(6) In the case of a jobseeker's allowance other than a joint-claim jobseeker's allowance, the appropriate consequence for the purposes of subsection (5)(d) is that the allowance is not payable for such period (of at least one week but not more than 26 weeks) as may be prescribed.
(7) In the case of a joint-claim jobseeker's allowance, the appropriate consequence for the purposes of subsection (5)(d) is that the participant is to be treated as subject to sanctions for the purposes of section 20A for such period (of at least one week but not more than 26 weeks) as may be prescribed.
(8) Regulations under this section may make provision for an income-based jobseeker's allowance to be payable in prescribed circumstances even though other provision made by the regulations would prevent payment of it.
This subsection does not apply in the case of a joint-claim jobseeker's allowance (corresponding provision for which is made by section 20B(4)).
(9) The provision that may be made by the regulations by virtue of subsection (8) includes, in particular, provision for the allowance to be—
(a) payable only if prescribed requirements as to the provision of information are complied with;
(b) payable at a prescribed rate;
(c) payable for a prescribed period (which may differ from any period mentioned in subsection (6)).
(10) In this section—
"claimant", in relation to a joint-claim couple claiming a joint-claim jobseeker's allowance, means either or both of the members of the couple;
"the jobseeking conditions" means the conditions set out in section 1(2)(a) to (c);
"participant", in relation to any time, means any person who is required at that time to participate in a scheme within subsection (1)."
The word "prescribed" is defined in section 35 of the 2009 Act as "specified in or determined in accordance with regulations."
Section 17B is in these terms:
" Section 17A: supplemental
(1) For the purposes of, or in connection with, any scheme within section 17A(1) the Secretary of State may—
(a) make arrangements (whether or not with other...
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