Income support – Jobseeker's allowance – Claimants claiming allowance

R (on the application of Reilly and another) v Secretary of State for Work and Pensions: Queen's Bench Division, Administrative Court (London): 6 August 2012

The instant proceedings concerned two separate claims which were heard together as they raised common issues. The claimant in the first proceedings, R, graduated from university and her ambition was to work in the museum sector. She claimed jobseeker's allowance, but subsequently received paid work experience in a museum. When the work experience ended, R continued to carry out voluntary work at the museum because of her ultimate career ambition. R made her second claim for jobseeker's allowance. She later claimed that her jobcentre adviser had told her of an opportunity to attend an open day at which retail jobs would be available and that it was her choice to attend. That was under the sector-based work academy scheme (the SBWA scheme).

R attended the open day, but was concerned that the required level of training meant that she would be unable to continue with her voluntary work. R raised her concerns with her jobcentre adviser and claimed that she was told that her participation was mandatory and that she might lose her jobseeker's allowance entitlement or have her payments reduced. Consequently, R participated in the training with a well-known retailer. That work consisted of one week of training, followed by unpaid work for two weeks, followed by further training. The claimant in the second action, W, was laid off by the employment agency he was employed through. Subsequently, W started receiving jobseeker's allowance. He continued to actively seek work.

W's jobcentre adviser informed him that in order for him to continue to receive his jobseeker's allowance, he would be required to take part in a new programme being trialled in his area. He was given a letter stating that if he had not found a job within three months he would be referred to the Community Action Programme (CAP), which involved six months of near full-time work experience and that if he did not participate his jobseeker's allowance might be stopped for up to 26 weeks. Having been told that he would need to participate in the CAP, W attended a meeting and was told that he would be required to work unpaid for 30 hours per week for six months or until he had found employment of 16 hours per week or more.

W was not prepared to work unpaid for such a long period of time and felt that that requirement had been particularly unfair. He was made subject to sanctions for non-compliance with the CAP. R and W sought judicial review of the SBWA scheme and CAP (the two schemes) as well as the validity of the Jobseeker's Allowance (Employment and Enterprise) Regulations 2011, SI 2011/917, which purportedly granted the defendant secretary of state the power to create the two schemes.

The claimants contended, first, that the Regulations were ultra vires the governing statutory provision, namely, section 17A of the Jobseekers Act 1995 (the act) because the Regulations failed to prescribe a description of each scheme or the circumstances in which an individual could be required to participate in the scheme as section 17A of the act required. Therefore, there was no legislative authority for either scheme. If the first ground failed, it was submitted that the secretary of state had had to set out each scheme in a published policy that explained clearly the features of the scheme, including, inter alia, the type of work, the circumstances in which they could be required to undertake work, the period required to work and consequences of non-participation.

The secretary of state, the claimants contended, had failed to publish such a policy in respect of either scheme with the consequence that each scheme should be quashed. Further, the secretary of state had, in W's case, failed to comply with the requirements of regulation 4 of the Regulations under which a jobseeker should be given written information about the consequences of failure to participate in a scheme. Although such breach was admitted in respect of R, there was a dispute as to whether R had an alternative remedy outside of the instant proceedings. Furthermore, it was submitted that the two schemes violated article 4 of the European Convention on Human Rights. Consideration was given to regulation 8 of the Regulations.

The court ruled: (1) On the true interpretation of the Regulations, those Regulations did comply with section17A of the act. The link between the Regulations and the act was sufficiently there to justify that conclusion (see [43], [49] of the judgment). Consequently, the Regulations were not ultra vires (see [49] of the judgment).

(2) Information on the SBWA scheme had been made available on the internet which stated, inter alia, that the scheme was voluntary and that anyone interested in the scheme should speak to a jobcentre adviser. Accordingly, it directed the interested person directly to that source of information. There was nothing unlawful about giving the information on the SBWA scheme in the form that had appeared on the internet and any discussion between the individual interested in the scheme and the jobcentre adviser. That was sufficient to discharge the secretary of state's legal obligation to make relevant information available to the person interested. In respect of CAP, it could not be said that utilising the jobcentre advisers and written correspondence had been an inadequate way of discharging the secretary of state's duty to make relevant details public (see [69], [75], [76], [86] of the judgment).

The challenge to the schemes on the ground of an alleged breach of duty by the secretary of state to make relevant details public would be dismissed (see [77], [87] of the judgment). R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same [2011] All ER (D) 262 (Mar) applied.

(3) In respect of the CAP, the initial letter to W had not met the obligations of regulation 4 of the Regulations. An individual was entitled to a straightforward letter which dealt with his position. It was not fair, sufficient or accurate to tell someone who, under regulation 8 of the Regulations, could only at that stage be sanctioned for two weeks that he could be sanctioned for up to 26 weeks. The letter should have spelt out that, having failed without good cause to participate in the CAP on one occasion, the sanction, if a sanction was applied, would be one of two weeks' loss of benefit and that thereafter the period would increase with further separate failures to participate.

By way of alternative remedy, in an ordinary case, the correct cause would be a complaint to the Independent Case Examiner before seeking judicial review. In the instant case however, there was no way that it could have been challenged the vires of the Regulations other than by judicial review (see [118], [119], [147], [153], [158] of the judgment).

It was only in respect of the sanction consequences of non-participation in the CAP that there had been non-compliance with regulation 4 of the Regulations in W's case and his application would be allowed on that ground. In respect of R, the breach of reg 4 had been admitted and, in the circumstances, she had been correct to bring her claim by way of judicial review (see [161], [167] of the judgment).

(4) Neither scheme was contrary to article 4 of the Convention. The SBWA scheme and the CAP scheme were a very long way removed from the kind of exploitation of labour that had led to the formulation of article 4 to the Convention (see [174], [176] of the judgment). Neither scheme was contrary to article 4 to the Convention (see [176] of the judgment).

Nathalie Lieven QC and Tom Hickman (instructed by Public Interest Lawyers Limited) for the claimants; Paul Nicholls QC (instructed by DWP/DH Litigation and Employment Division) for the secretary of state.