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20 SEP 2012

R (on the application of Reilly & Another) v Secretary of State for Work and Pensions [2012] EWHC 2292 (Admin) (2012) PLLR 123

Community Care - Jobseekers Allowance - Work scheme - Article 4

The Court held that schemes implemented pursuant to the Jobseeker's Allowance Regulations did not breach an individual's Article 4 ECHR rights, as the schemes did not constitute forced labour. The Court also found that inadequate detail had been provided in relation to the circumstances in which a person could be penalised with the withdrawal of their benefit.

6 August 2012

Administrative Court

Foskett J

(1)        This case concerned a challenge to the validity of the Jobseeker's Allowance (Employment and Enterprise) Regulations 2011 (‘the Regulations') and the two schemes made by the Secretary of State for Work and Pensions under the powers conferred by those regulations. The two schemes challenged were the sector-based work academy scheme (‘SWAS') and the Community Action Programme (‘CAP').

(2)        The first claim was brought by Miss Caitlin Reilly in relation to the SBWA scheme, and Mr Jamieson Wilson brought the second claim concerning the CAP scheme.

(3)        The first challenge alleged that the Regulations were ultra vires section 17A of the Jobseekers Act 1995 ('the 1995 Act') because, contrary to this, they failed to set out a description of each scheme or the circumstances in which a person would be required to participate in a scheme. It was submitted that there was no legislative authority for either scheme.

(4)        In the alternative, it was argued that the Defendant should have a published policy setting out each scheme, what it involved and what could be required from a person participating.

(5)        Mr Wilson disputed whether the Regulation requirement of the provision of information was complied with, whilst in Miss Reilly's case non-compliance with this was accepted, but the consequences remained in dispute.

(6)        Miss Reilly had been incorrectly told that her participation in the SBWA scheme was mandatory. She thus argued that she had been misinformed, and with correct information would have exercised her right not to take part. 

(7)        Mr Wilson was required to participate in the CAP scheme, which involved work experience. He was warned that failure to participate in this scheme could result in the loss of his jobseekers benefit. Mr Wilson claimed that he was not provided with details of the scheme, or the true consequences of failing to participate, contrary to Regulation 4(2)(e).

(8)        Each Claimant also argued that the schemes constituted ‘forced or compulsory labour', which violated their rights under Article 4 of the European Convention of Human Rights (‘ECHR').

(9)        HELD: The main submission on behalf of the Defendant in relation to the Claimants' primary issue was that the Regulations did provide a description of the schemes. In relation to the SBWA, the Court held upheld this submission, finding that the description provided was adequate. The Court stated that the Regulations contained a tenuous, but undoubtedly existent, link to the section 17A(2) of the 1995 Act, and this was sufficient to justify there being conformity with the legislation.

(10)     The Court considered that there was considerable force in the argument that it would be impractical to publically provide details of each scheme, due to the many different circumstances that have to be considered in each case. The Court concluded that directing individuals to a Jobcentre adviser was enough to discharge the Defendant's obligation to make relevant information available to the interested person.

(11)     The Court concluded that the SWBA scheme would not be quashed.

(12)     The Court stated that the evidence of the second Claimant, Mr Wilson, was that he had been fully informed of the CAP scheme, and the consequences of his non-participation had been spelt out. The Court could not see that the provision of information through Jobcentre advisors and correspondence was inadequate. The Court was satisfied that the information provided as to the tasks that should be undertaken was sufficient in light of the individual circumstances of each participant. Thus the challenge on the basis of the failure to make public details of what the scheme entailed failed.

(13)     The Court did not accept that all of the information provided to Mr Wilson in relation to the CAP scheme was clear and precise enough to comply with the Regulations. The Court found that the information had failed to adequately explain the sanctions that would be imposed in specific circumstances, and the duration of such sanctions.

(14)     The Court stated that it was not possible to say, based on the statutory and regulatory provisions, that a requirement of participation in a scheme was unlawful if the Regulations had been complied with.

(15)     The Court made clear that the schemes were far removed from the exploitation of labour that triggered the formulation of Article 4. The Court found that neither scheme was contrary to Article 4 and there had been no breach.

Claims succeeded in part.

Key paragraphs

[40] - Adequate description.

[43] - Link to legislation.

[49] - Compliance with section 17A.

[77] - Ground 2 failed.

[85] - Fully informed of CAP.

[87] - CAP details challenge failed.

[115] - Wording insufficiently precise and clear.

[119] - Explain sanction.

[122] - CAP sufficient detail as to tasks.

[176] - Article 4.

[183]-[184] - Conclusion.

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