R (Reilly and Another) v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Sumption,Lord Mance,Lord Neuberger,Lord Toulson,Lord Clarke
Judgment Date30 Oct 2013
Neutral Citation[2013] UKSC 68

[2013] UKSC 68

THE SUPREME COURT

Michaelmas Term

On appeal from: [2013] EWCA Civ 95

Before

Lord Neuberger, President

Lord Mance

Lord Clarke

Lord Sumption

Lord Toulson

R (on the application of Reilly and another)
(Respondents)
and
Secretary of State for Work and Pensions
(Appellant)

Appellant

James Eadie QC

Catherine Callaghan

Amy Rogers

(Instructed by Treasury Solicitors)

Respondent

Nathalie Lieven QC

Tom Hickman

(Instructed by Public Interest Lawyers)

Heard on 29 July 2013

Lord Neuberger AND Lord Toulson (with whom Lord Mance, Lord Clarke and Lord Sumption agree)

1

This is a judgment on (i) an appeal brought by the Secretary of State for Work and Pensions, against the Court of Appeal's decision in favour of Ms Caitlin Reilly and Mr Jamieson Wilson, that the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations ( SI 2011/917) ("the 2011 Regulations"), purportedly made under section 17A of the Jobseeker's Act 1995 ("the 1995 Act"), do not comply with the requirements of that section, and (ii) a cross-appeal brought by Miss Reilly and Mr Wilson against the Court of Appeal's rejection of two other attacks they made on the way in which the Secretary of State had caused the Employment, Skills and Enterprise Scheme ("the Scheme") to be operated.

2

The Secretary of State's appeal is complicated by the fact that, since the Court of Appeal's judgment was handed down, (i) the 2011 Regulations have been repealed and replaced by the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013/276) ("the 2013 Regulations"), and (ii) the Jobseekers (Back to Work Schemes) Act 2013 ("the 2013 Act") has come into force, and its effect is agreed to be to validate the 2011 Regulations retrospectively. We deal with this aspect in paras 33–41 below.

3

We will begin by describing the relevant statutory and regulatory provisions as they stood in 2011, and will then summarise the relevant facts relating to Miss Reilly and to Mr Wilson; after explaining the effect of the decision of the courts below, we will then turn to the effect of the 2013 Act and Regulations; after that, we will address the four sets of issues in turn, and will end by summarising our conclusions.

The relevant statutory and regulatory provisions in 2011
4

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". 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 Jobseeker's Agreement, and (iii) sanctions in the event of non-compliance. There were subsequently many amendments to and additions to these Regulations.

5

Section 1 of the 1995 Act provides, so far as material:

"(1) An allowance, to be known as a jobseeker's allowance, shall be payable in accordance with the provisions of this Act.

(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 jobseeker's agreement which remains in force;

  • (c) is actively seeking employment; ….

  • (e) is not engaged in remunerative work….".

6

Sections 17A and 17B were added to the 1995 Act by section 1(2) of the Welfare Reform Act 2009. 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 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.

(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 specified in the regulations; …

(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; …

(6) In the case of a 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

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 facilities".

8

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".

9

The circumstances in which a jobseeker's 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 avail himself of a reasonable opportunity of a place on a training scheme or employment programme;

(ii) after a place on such a scheme or programme has been notified to him by an employment officer as vacant or about to become vacant, refused or failed to apply for it or to accept it when offered to him;

(iii) given up a place on such a scheme or programme; or

(iv) failed to attend such a scheme or programme on which he has been given a place…"

10

The 2011 Regulations were purportedly made under section 17A, and they came into force in May 2011. 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 and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search)."

11

Regulation 3 of the 2011 Regulations provided:

"The Secretary of State may select a claimant for participation in the Scheme."

12

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).

(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 Secretary of State that C's participation is no longer required …;

(e) information about the consequences of failing to participate in the Scheme …."

13

Regulation 5 of the 2011 Regulations set out the circumstances in which the requirement to participate in a scheme ceases. 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."

Regulation 7 provided an opportunity for a claimant who fails to participate in the Scheme to show good cause for that failure.

14

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, the appropriate consequence for the purpose of section 17A … is as follows.

(2) In the case of a jobseeker's allowance …. the appropriate consequence is that C's allowance is not payable for the period specified in paragraphs (4) to (7) ('the specified period').

(4) The period is 2 weeks in a case which does not fall within paragraph … (6).

(6) … [T]he period is 26 weeks where —

(a) on two or more previous occasions the Secretary of State determined that C's 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 after the date on which C's jobseeker's allowance was not payable or was payable at a lower rate following the most recent previous determination. …"

The facts: general
15

In March 2012, jobseeker's 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. About 480,000 were aged under 24, of whom 55,000 had been in receipt of the allowance for more than a year. Forecast expenditure on the allowance in the year 2011/12 was just under £5bn.

16

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...

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