Reilly and Hewstone v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill |
| Judgment Date | 29 April 2016 |
| Neutral Citation | [2016] EWCA Civ 413 |
| Docket Number | Case Nos: C1/2014/2476 C3/2015/0822 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 2016 |
[2016] EWCA Civ 413
Lord Justice Underhill
Lord Justice Burnett
and
Dame Janet Smith
Case Nos: C1/2014/2476
C1/2014/2474
C3/2015/0822
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Queen's Bench Division, Administrative Court
Mrs Justice Lang DBE
AND FROM The Upper Tribunal (Administrative Appeals Chamber)
(Charles J, UTJJ Rowland and Wright)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Eadie QC, Ms Amy Rogers and Ms Zoe Leventhal (instructed by the Treasury Solicitor) for the Appellant in Reilly
Mr James Eadie QC and Ms Zoe Leventhal (instructed by the Treasury Solicitor) for the Appellant in Jeffrey
Mr Tom Hickman and Mr Ravi Mehta (instructed by Public Interest Lawyers) for the Respondents in Reilly
Mr Tristan Jones for Ms JeffreyMr Thomas de la MareQC and Mr Tom Richards for Mr Bevan (in both cases instructed by Child Poverty Action Group)
Hearing dates: 24–26 November 2015
Witten submissions: 7, 9 and 10 December 2015
Lord Justice Underhill (giving the judgment of the Court):
INTRODUCTION
Table of Contents
| Introduction | Paragraphs 1 to 23 |
| History | [2] – [14] |
| The Judicial Review Appeal | [15] – [17] |
| The Upper Tribunal Appeal | [18] – [22] |
| Representation | [23] |
| The Judicial Review Appeal | Paragraphs 24 to 126 |
| The Provisions of the 2013 Act | [24] – [28] |
| The effect of the 2013 Act | [29] – [31] |
| The Parties' cases | [32] – [40] |
| The Authorities | [41] – [76] |
| The judgment of Lang J | [77] – [82] |
| The Appeal: Article 6 | [83] – [110] |
| The Cross-Appeal: A1P1 | [111] – [126] |
| The Upper Tribunal Appeal | Paragraphs 127 to 179 |
| The Construction of the 2013 Act | [127] – [141] |
| Ms. Jeffrey: s.6 HRA and s.12 TCEA | [142] – [148] |
| Ms. Bevan | [149] – [178] |
| Conclusion on the Upper Tribunal Appeal | [179] |
| Overall Conclusion | Paragraph 180 |
***
There are before the Court two appeals, to which we will refer as "the judicial review appeal" and "the Upper Tribunal appeal", about the effect of the Jobseekers (Back to Work Schemes) Act 2013. That Act is avowedly retrospective legislation which purports to validate the imposition of sanctions on claimants for jobseeker's allowance which had been held in the courts to be invalid. At the risk of some over-simplification, the principal question raised by the appeals is whether the retrospective validation of those sanctions would contravene the rights under the European Convention of Human Rights of claimants affected by it; and if so whether its provisions can be read down so as to avoid that contravention, or whether the only remedy of the claimants affected is by way of a declaration of incompatibility under section 4 of the Human Rights Act 1998. In order to explain the issues more fully it is necessary to start by setting out the complicated legislative and litigation history.
THE LEGISLATIVE AND LITIGATION HISTORY
Jobseeker's allowance. Entitlement to jobseeker's allowance (" JSA") is governed by the Jobseekers Act 1995. Section 1 (2) gives claimants an entitlement to JSA if they satisfy a series of conditions there set out, which we need not summarise. Section 19 sets out various circumstances in which JSA is not payable notwithstanding that the conditions of entitlement are satisfied.
Section 17A of the 1995 Act: "schemes". Section 1 (2) of the Welfare Reform Act 2009 introduced (with effect from 12 November 2009) a new section 17A into the 1995 Act. Sub-section (1) empowers the Secretary of State for Work and Pensions (who is the Appellant in both appeals) to make regulations requiring persons claiming JSA to "participate in schemes of any prescribed description that are designed to assist them to obtain employment [emphasis supplied]". Sub-section (5) specifies certain particular matters for which regulations may provide, including (at (d)) securing that "the appropriate consequence" follows a failure to comply with the regulations in the absence of good cause. Sub-section (6) defines "the appropriate consequence" as being "that the allowance is not payable for such period (of at least one week but not more than 26 weeks) as may be prescribed".
The 2011 Regulations: the ESE scheme. The Secretary of State made various regulations purportedly pursuant to section 17A, including the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 ("the 2011 Regulations"), which purported to empower him to select claimants for participation in a scheme known as the Employment, Skills and Enterprise Scheme ("the ESE scheme"). Importantly for what follows, contrary to the requirements of section 17A (1) the Regulations contained no "description" of the ESE scheme beyond the name. Two other features of the 2011 Regulations are also central to these appeals: we set them out in the following paragraphs.
The 2011 Regulations: regulation 4 notices. By regulation 4 claimants were required to participate in the ESE scheme only if they were given written notice complying with requirements prescribed in paragraph (2). We are concerned only with two of those requirements, namely that the notice should specify –
"(c) details of what the claimant is required to do by way of participation in the Scheme"; and
"(e) information about the consequences of failing to participate in the Scheme".
We will refer to these as "the details requirement" and "the consequences requirement".
The 2011 Regulations: Consequences/Sanctions. By regulation 8, reflecting section 17A (5) and (6) of the 1995 Act, claimants who failed to participate in the ESE scheme without "good cause" (defined in regulation 7) were liable to "consequences" in the form of losing their entitlement to subsequent payments of JSA for a specified period up to 26 weeks. We need not set out the terms of regulation 8, but we should note that they follow the language of section 17A (6) in providing that where the Secretary of State determines that there has been non-participation JSA "is not payable" for the specified period. Regulation 8 was revoked with effect from 22 October 2012 by regulation 7 of the Jobseeker's Allowance (Sanctions) (Amendment) Regulations 2012 ("the 2012 Regulations"). These regulations, which introduced a different scheme for the imposition of "sanctions" for (among other things) non-participation in the ESE scheme, derived not from section 17A (5) of the 1995 Act but from section 19. However, the sanctions still took the form of rendering JSA not payable for specified future periods, though the periods could in some circumstances be considerably longer than under the 2011 Regulations. Before us both "consequences" under regulation 8 of the 2011 Regulations and "sanctions" under the 2012 Regulations were referred to as "sanctions", and we will do the same. There is a right of appeal to the First-tier Tribunal (Social Entitlement Chamber) ("the FTT") against a sanction decision: see section 12 (2) of the Social Security Act 1998.
"Sub-schemes". The Department of Work and Pensions ("the DWP") developed a number of particular "schemes" or "programmes" which were treated as constituting part of the overall ESE scheme, though they were not themselves referred to in the Regulations: we will refer to them as "sub-schemes". The sub-schemes which feature in the appeals before us were called the "sector-based work academy scheme" ("the sbwa scheme" 1), the Community Action Programme ("CAP") and the Work Programme. They were run by private companies, referred to as "providers".
"Reilly 1". Caitlin Reilly, one of the Respondents in the judicial review appeal, was a jobseeker who was required by the DWP to, and did, participate in the sbwa. Jamieson Wilson was another jobseeker who had been required to participate in the CAP. They commenced proceedings for judicial review of the lawfulness of those requirements. We will refer to those proceedings as " Reilly 1". There were various grounds of challenge, but for present purposes we need identify only two, namely:
(a) that the 2011 Regulations were ultra vires because they did not contain a description of the ESE scheme as required by section 17A (1) of the 1995 Act – "the vires challenge"; and
(b) that the standard-form written notice purportedly given in accordance with regulation 4 (2) did not comply with the requirements of the regulation – "the notice challenge".
As regards (b), we should set out the relevant part of the standard-form letter sent to Mr Wilson purportedly in compliance with regulation 4. The only part giving any details of what he was required to do by way of participation in the Scheme, as required by paragraph 2 (c), read:
"At your interview today, your adviser explained that you had to take part in the [CAP] from 16 November 2011. Ingeus [the provider] will be in touch with you shortly to arrange this. 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]."
The decision of Foskett J. By a judgment handed down on 6 August 2012 – [2012] EWHC 2292 (Admin)– Foskett J dismissed the vires challenge. As regards the notice challenge, it transpired that no written notice at all had been given to Ms Reilly: she had participated in the sbwa scheme on the basis of oral instructions. The requirement in her case was thus...
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