Government’s back to work schemes ruled unlawful without rights to refuse
13 February 2013
Reilly & Anor, R (On the Application of)  EWHC Civ 66 – read judgment
Adam Wagner has also commented on this case in The Times (£) as well as on Newsnight (from the start)
The Court of Appeal has ruled that regulations under the Jobseekers Act 1995 were unlawful as not meeting the requirements of that statute.
This was an appeal against a decision by Foskett J that the regulations were lawful. The two appellants were unemployed and claiming the Jobseekers’s Allowance. After refusing to participate in schemes under the Regulations in which they were required to work for no pay ( the Sector-Based Work Academy in Miss Reilly’s case and the Community Action Programme (CAP) in Mr Wilson’s), they were told that they risked losing their allowance. Miss Reilly’s scheme involved working at Poundland for 5 hours a day, 5 days a week, and it became apparent that it involved no training element. She complained that the scheme impeded her voluntary efforts to maintain and advance her primary career ambition (working in a museum) and, having embarked on the scheme, she found that it did not offer any worthwhile experience on an alternative career path. Mr Wilson did not participate in his CAP scheme at all because it yielded no pay and lasted 26 weeks, and, most importantly, that it would not lead to any “concrete benefit” in the job market.
Section 19(5) of the Act specifies the circumstances in which a Jobseekers’ Allowance is not payable, including where the claimant “has, without good cause, refused or failed to carry out any jobseeker’s direction which was reasonable, has, without good cause, neglected to avail himself of a reasonable opportunity of a place on a training scheme or employment programme”.
The appeal was allowed.
Reasons behind the judgment
The Court accepted the need for a policy imposing requirements on persons receiving a substantial weekly sum, potentially payable for life. Pill LJ, giving the leading judgment, also appreciated the need for flexibility in devising arrangements which will achieve the statutory purpose of improving prospects of obtaining employment.
Claimants should be required to participate in arrangements which may improve their prospects of obtaining remunerative employment.
The problem with these particular schemes is that they did not, in the words of the Act, “assist [claimants] to obtain employment” or improve “their prospects of obtaining employment”, both expressions appearing in Section 17A. As a matter of statutory construction it was not possible to conclude that the Regulations met these statutory requirements. Simply to give a scheme a name could not, in context, be treated as a prescribed description of a scheme in which claimants could be required to participate, within Section 17A(1) of the Act. The statutory requirement was that the prescribed description was in the regulations: arrangements were not made by the secretary of state in accordance with regulations unless the statutory requirement for schemes of a prescribed description was met in the regulation itself. Since the central purpose was to impose “requirements” on claimants, with sanctions for failure to comply, the Regulations had to be ruled unlawful.
The Court rejected the appellants’ second argument, that these schemes could not be imposed without a formal policy statement from the secretary of state. The policy was stated in the statute. What was required was that appropriate statements of the types of arrangement to be made and on offer were made publicly available, and that an individual claimant, before embarking on an arrangement, was aware of his obligations.
The human rights ground did not add anything independently of the other grounds. In relation to unpaid work, provided that the arrangements made served the statutory purpose of s.17A, they did not necessarily infringe Article 4. Pill LJ referred to Van der Mussele v Belgium (8919/80) (1984) 6 EHRR 163 where the Strasbourg Court rejected the submission that there had been a breach of that Article when a pupil Avocat was compelled by regulations of the Order of Advocates to assist those in need of legal aid and represent clients without payment if so directed by the Order. But that was because the services fell within the ambit of the normal activities of an Avocat, so a compensatory factor was to be found in the advantages attaching to the profession and the services therefore contributed to the applicant’s training. This was very much not the case in relation to the schemes under challenge here.
Sir Stanley Burnton added that he was at pains to emphasise that this case was not about the social, economic, political or other merits of the Employment, Skills and Enterprise Scheme.
Parliament is entitled to authorise the creation and administration of schemes that, in the words of section 17A(1) of the 1995 Act, are designed to assist the unemployed to obtain employment, and provided that the schemes are appropriate for that purpose, it is not easy to see what objection there could be to them. Parliament is equally entitled to encourage participation in such schemes, by imposing sanctions, in terms of jobseekers’ allowance, on those who without good cause refuse to participate in a suitable scheme. This appeal is solely about the lawfulness of the Regulations made by the Secretary of State in purported pursuance of the powers granted by the 1995 Act as amended.
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I feel it would be far less strenuous (and certainly cheaper for the Taxpayer) to merely rid the state of this scheme altogether: this ‘rechauffe’ version of similar compulsory work experience schemes run by the Conservatives in the 1980s led directly to the deaths of over thirty young people, who were killed whilst undertaking responsibilities for which they had inadequate health & safety training . I think Hansard is reliable,but I forgot to add the number who died on YOP schemes during the same period too. Here is an article about Derek Cain – seen as the fire officers found him suffocated in an unventilated stock room () – his father went on to mount a campaign to raise awareness of the deaths of 85 young people on the YOPs scheme and the YTS scheme that followed it, and took out a successful prosecution for negligence against the government.’. He was initially offered £52 compensation.
I have just been on the Q&A blog with Shiv Malik in the Guardian. I ask if he would agree that Cait should bring this case to the European Court in order to get a judgement that Article 4 (2) of the HRA had been breached? Shiv directed me to James Ball’s reply to a similar question. James wrote: “my impression is it could prove quite difficult to get a victory on human rights grounds in this case, essentially as the compulsion in these mandatory schemes is not direct: no-one is forced to participate, they are merely required to do so if they wish to continue receiving JSA. There doesn’t seem to be anything saying that access to JSA is a universal right. And if there’s no right to receive JSA, then it seems difficult to build an argument around the Human Rights Act.” I argued that there is a right to receive it if you play by the rules by actively seeking work and gaining work experience. Cait played by the rules. She was actively seeking work and was doing unpaid work in a museum. There was no rational reason for forcing her to replace one unpaid job for another unpaid job, unless the government was making some sort of deal with Poundland. I also argued that she also stated that she intend to bring her case to judicial review, but David Cameron is planning to make it considerably harder for people to take cases to judicial review and is planning to scrap Equality Impact Assessments. All this is relevant to disabled people’s campaigns against Atos Work Capacity Assessments (but with particular reference to Article 3). Article 4 (2) of the Human Rights Act 1998 is unambiguous. “No one shall be required to perform forced or compulsory labour.” There was no rational reason for forcing her to replace one unpaid job for another unpaid job, unless the government was making some sort of deal with the company of the 2nd unpaid job. It has occurred to me that this ruling by the judge was made (with or without an MPs advice) that any judgement which admitted that the government had breached Article 4 of the HRA would not only affect all future legislation, but it would also be a great embarrassment to the PM, the Conservative Party & the Government. They are now hoping that she will be happy that she has won and not take the case to the European Court where a judge will declare that the Government has breached Article 4. They are also hoping that she realises that the Government acknowledge that it has been breached, but don’t want it to be recorded in final judgement document.
The artical states that no one is forced to participate in these mandatory schemes. If your only alternative is to starve to death on the street, is that really a choice or should it be considered as being fored to choose under duress. Can a choice still be cosidered as a choice if you are fored to choose under duress?
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