"We cannot part with this case without paying tribute to the claimants\' legal advisers who although greatly outnumbered by the Secretary of State\'s legal team have persisted with their requests for disclosure skilfully and with commendable determination." (per Lord Justice Scott-Baker in  R (on the application of Al-Sweady and Others) v The Secretary of State for Defence [2009] EWHC 2387 (Admin)).
Lord Justice Scott-Baker
 
 

Court of Appeal Rules that the Government’s “Back to Work” Regulations are Unlawful and Must Be Quashed

12/02/2013
 

In a unanimous decision, three judges from the Court of Appeal have today ruled that the Regulations[1] under which most of the Government’s “Back to Work” schemes have been created are unlawful and must be quashed. The ruling is a huge setback for the Department for Work and Pensions (DWP) whose flagship reforms have been beset with problems since their inception.

The effect of the judgment is that all those people who have been sanctioned by having their jobseeker’s allowance withdrawn for non-compliance with the Back to Work Schemes affected will be entitled to reclaim their benefits. And until new regulations are enacted with proper Parliamentary approval nobody can be compelled to participate on the schemes.

The Government initially indicated that it would seek a stay of the order quashing the Regulations “because of the ramifications of the decision.” The Government’s Counsel[2] submitted that the effect of the decision would be immediate: “the original requirement imposed on claimants such as Mr Wilson that they participate in a programme would be unlawful and they could not be required to participate further.” People would be free to leave placements if they did not wish to continue with them, and all sanctions currently imposed would have to be immediately brought to an end. 

However, after objections from the Claimants, the Government today abandoned their request for a stay of the quashing order which means that the judgment takes immediate effect.

The case was brought by our clients Cait Reilly, who was made to stack shelves in Poundland for two weeks, and Jamie Wilson, who was stripped of his Jobseeker’s allowance for 6 months after refusing to participate in a scheme[3] which required him to work 30 hours a week for six months for free.

In a carefully reasoned judgment the Court found that the Secretary of State, Iain Duncan Smith, has acted beyond the powers given to him by Parliament[4] by failing to provide, any detail about the various “Back to Work” schemes in the Regulations. The Government had bypassed Parliament by introducing the Back to Work schemes administratively under an “umbrella” scheme knwons as the Employment, Skills and Enterprise Scheme, claiming the need for “flexibility’. The Court of Appeal held that this was contrary to what Parliament had required. Stanley Burnton LJ stated:

“any scheme must be such as has been authorised by Parliament. There is a constitutional issue involved. The loss of jobseekers’ allowance may result in considerable personal hardship, and it is not surprising that Parliament should have been careful in making provision for the circumstances in which the sanction may be imposed. There are well known legislative formulae for conferring complete flexibility of decision on a Minister.” (at [75])

The result is that over the past two years the Government has unlawfully required tens of thousands of unemployed people to work without pay and unlawfully stripped thousands more of their subsistence benefits.

The case has revealed the chaos and confusion at the heart of the DWP who have set up a web of schemes and sanctions so complex that their own jobcentre advisers are failing to implement them correctly. It has shown that the basic requirements of fairness dictated by Parliament, such as providing people with a clear explanation of what they are being asked to do, why they are being asked to do it and what the consequences are if they fail to do it, have not been complied with by the DWP.

What Next?

Tessa Gregory, solicitor, Public Interest Lawyers states:

Today’s judgment sends Iain Duncan Smith back to the drawing board to make fresh Regulations which are fair and comply with the Court’s ruling. Until that time nobody can be lawfully forced to participate in schemes affected such as the Work Programme and the Community Action Programme. All of those who have been stripped of their benefits have a right to claim the money back that has been unlawfully taken away from them from the DWP.

The case has revealed that the Department of Work and Pensions was going behind Parliament’s back and failing to obtain Parliamentary approval for the various mandatory work schemes that it was introducing. It also reveals a lack of transparency and fairness in the implementation of these schemes. The Claimants had no information about what could be required of them under the back to work schemes. The Court of Appeal has affirmed the basic constitutional principle that everyone has a right to know and understand why sanctions are being the threatened and imposed against them

 

Jamie Wilson

I am really pleased that the Court has found in our favour. I refused to participate in the Community Action Programme (CAP) because I objected to being made to clean furniture for 30 hours a week for 6 months when I knew it wouldn’t help me find employment. I was given next to no information about the programme, I was told simply that I had to do whatever the DWP’s private contractor instructed me to do and that if I didn’t I may lose my benefits. Being without jobseeker’s allowance was very difficult for me but I don’t regret taking a stand as the CAP is a poorly thought out and poorly implemented scheme which even according to the DWP’s own statistics is not helping anyone get people back to work.

I am now participating in the Work Programme but it doesn’t involve me working for free, I have to meet an advisor every 3 to 4 weeks who helps me look for work. I will continue to attend these sessions with my adviser regardless of whether or not I am required to attend because I want to find a job and the sessions are very helpful.

 

Cait Reilly

I am delighted with today’s judgment. I brought this case because I knew it was wrong when I was prevented from doing my voluntary work in a museum and forced to work in Poundland for free for two weeks as part of a scheme known as the sector based work academy. Those two weeks were a complete waste of my time as the experience did not help me get a job, I wasn’t given any training and I was left with no time to do my voluntary work or search for other jobs. The only beneficiary was Poundland, a multi-million pound company. Later I found out that I should never have been told the placement was compulsory.

I don’t think I am above working in shops like Poundland,  I now work part time at the in a supermarket, it’s just that I expect to get paid for working. I hope the Government will now take this opportunity to rethink its strategy and do something which actually builds on young unemployed peoples' skills and tackles the causes of long-term unemployment. I agree we need to get people back to work but the best way of doing that is by helping them, not punishing them. The Government ought to understand that if they created schemes which actually helped people get back into work then they wouldn’t need to force people to attend.



[1] Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011

[2] Paul Nicholls QC

[3] Community Action Programme

[4] under the Welfare Reform Act 2009 which amended the Jobseeker’s Allowance Act1995
 
 
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