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On 30 October 2013, the Supreme Court handed down its judgment in R (Reilly & NN Profile pictureAnor) v Secretary of State for Work and Pensions [2013] UKSC 68. This case concerned a challenge to the legality of the Department for Work and Pensions’ controversial back-to-work schemes, which require benefits claimants to undertake unpaid work in order to continue receiving payments. Among other grounds, the challenge relied upon the European Convention on Human Rights, art 4, which prohibits slavery, servitude and forced labour.

Factual background

The original proceedings were brought by two individuals in receipt of Jobseeker’s Allowance. Caitlin Reilly, a geology graduate, unwillingly undertook an unpaid work placement at Poundland under the sector based work academy scheme. She had been informed that the scheme was mandatory even though this was not the case. Once she agreed to participate, she faced losing her benefits if she did not complete the placement.

Jamieson Wilson, a former Heavy Goods Vehicle driver, was told that if he did not find work within the next three months he would have to participate in the Community Action Programme in order to continue receiving his Jobseeker’s Allowance. Under this programme, he would be required to complete 30 hours a week of unpaid work renovating and distributing used furniture for six months or until he found work for 16 hours a week or more. He refused and as a result, his benefits payments were stopped for six months.

Legal background

Section 17A of the Jobseeker’s Act 1995 authorises the Secretary of State to make regulations which require claimants in “prescribed circumstances” to participate in work or work-related schemes of a “prescribed description” for a “prescribed period”. “Prescribed” is defined in s 35 as “specified or determined in accordance with the regulations.” The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, under which several back-to-work schemes were created, were made under s 17A.

Miss Reilly and Mr Wilson challenged the regulations on four grounds: (i) the regulations were ultra vires s 17A for failing to provide the prescribed details of the schemes; (ii) the Department for Work and Pensions failed to meet the notice requirements in regulation 4 by not giving them sufficient information about the schemes; (iii) the Government must set out details of the schemes in a published policy; and (iv) the schemes constitute forced or compulsory labour contrary to the ECHR, art 4.

In the High Court, Foskett J ruled that the regulations were lawful but that the Department for Work and Pensions had failed to comply with regulation 4 in relation to Miss Reilly and Mr Wilson. The Court of Appeal overturned the High Court’s findings on lawfulness and quashed the 2011 Regulations on the basis that they were ultra vires the Jobseeker’s Act.

Following the Court of Appeal decision, the 2011 Regulations were repealed and replaced the by the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013. In addition, the Jobseekers (Back to Work Schemes) Act 2013 was fast tracked through Parliament to retrospectively make sanctions against benefits claimants who opted out of a back-to-work scheme legal. The purpose of this legislation was to enable the Government to avoid repaying withheld benefits payments.

Supreme Court decision

The unanimous judgment of the Supreme Court was delivered by Lords Neuberger and Toulson. The Court found as follows:

–        Lawfulness: The Court acknowledged that the lawfulness of the 2011 Regulations had become an academic issue when Parliament retrospectively validated them, but considered that the question might be of importance to the drafting of regulations generally. The Court held that the 2011 Regulations did not satisfy the requirements of s 17A because they did not contain a sufficient “prescribed description” of the schemes. Notwithstanding the need for flexibility in the details of such schemes, legal certainty is particularly important when a statute provides for the making of regulations which significantly impact people’s lives. A prescribed description must add something to what is in the Act.

–        Compliance with notice provisions: Miss Reilly was not provided with written notice in contravention of regulation 4. The notice served on Mr Wilson was insufficient because it only informed him that he was required to perform “any activities” requested of him by the company operating the scheme without giving him any details about the nature, place or hours of work. The notice was therefore invalid. The Court dismissed the imperfections in the way that possible sanctions were communicated to Mr Wilson, as this did not prejudice or mislead him.

–        Publication of policy: The Court found that fairness requires a claimant to have sufficient information about the schemes to make meaningful representations on their own behalf before a decision is made. If the claimant is provided with this information by their Jobcentre adviser, then the duty to provide information will have been discharged.

–        Forced or compulsory labour: The Court held that the 2011 Regulations did not fall foul of ECHR, art 4. The regulations impose a condition on the benefit granted to job seekers; the purpose of the condition is directly linked to the benefit. This does not come close to the kind of exploitative conduct which art 4 addresses.  Previous European Court of Human Rights decisions have held that attaching a work condition to the payment of unemployment benefit does not convene art 4.

Comment

Article 4 was based on Convention 29 of the International Labour Organisation, the aim of which was to stop exploitation of labour in the colonies. Citing Strasbourg case law, the Supreme Court observed that to constitute forced labour, the work must not simply be compulsory and involuntary but also  “unjust”,  “oppressive”, “an unavoidable hardship”, “needlessly distressing” or “somewhat harassing”. There must be an element of exploitation. It is not enough that a scheme requires work to be performed under threat that the state will withhold a benefit.

Nevertheless, some benefits claimants may still have grounds on which to seek payment of their withheld benefits if they  have not been provided with adequate information. Claimants should be provided with enough information about the available schemes  to be able to make informed, meaningful representations about whether the proposed scheme is appropriate for them. This includes information about the features of the scheme and the criteria for selecting candidates for the scheme. A failure to provide this information to a claimant will render the notice ineffective if it materially affects the claimant by removing the opportunity to make representations which would have led to a different outcome.

Public Interest Lawyers, who represent Miss Reilly and others, have issued judicial review proceedings in the Administrative Court challenging the retrospective legislation. They argue that by retrospectively overturning the Court of Appeal’s ruling, the government has denied job seekers who have had their benefits withheld access to justice under ECHR, art 6, which protects the right to a fair hearing in both criminal and civil cases. They are also likely to appeal the findings on art 4 to the European Court of Human Rights.