Sanction busting: part 3

Issue 237 (December 2013)

Tessa Gregory from Public Interest Solicitors considers the implications of the Supreme Court judgment in R (Reilly and Wilson) v Secretary of State for Work and Pensions.

On 30 October 2013 the Supreme Court dismissed the government’s appeal against the Court of Appeal’s judgment in February 2013 that the regulations1 under which most of the government’s ‘back-to-work’ schemes were created were unlawful and should be quashed.2

The original case was brought by our clients Cait Reilly, who was made to stack shelves in Poundland for two weeks in the sector-based work academy, and Jamie Wilson, who was stripped of his jobseeker’s allowance for six months after refusing to participate in a scheme called the Community Action Programme which required him to work 30 hours a week for six months for free.

The Supreme Court held that:

  • the Court of Appeal had been right to quash the regulations on the basis that the Secretary of State, Iain Duncan Smith, had acted beyond the powers given to him by Parliament by failing to provide any detail about the various ‘back-to-work’ schemes in the regulations (paragraphs 43–52);
  • on the facts of Jamie Wilson’s case, he had, in any event, been provided with invalid notice under the regulations as the DWP failed to specify the details of what he was required to do by way of participation in the back-to-work scheme. In line with standard notices issued at that time, he was merely informed that he had to do perform ‘any activities’ requested of him by the private provider, Ingeus (paragraphs 53–57). It should be noted that if any similarly defective notices have been sent to claimants under the new regulations3 (which were passed as a result of the Court of Appeal’s judgment), then appeals against sanctions can be lodged on that basis.

In relation to a cross appeal brought by Cait Reilly and Jamie Wilson, the Court found that:

  • although the government does not have a duty to publish a policy about each of its back-to-work schemes, it is under a duty as a matter of fairness to provide jobseekers with enough information about available schemes so that they can make informed and meaningful representations as to the appropriateness of a scheme before they can be required to participate in it. This infor-mation must, of course, be provided before any notice requiring a jobseeker to participate on a particular scheme is served. Any failure to provide adequate information is likely to invalidate any notice given, making it unlawful for the DWP to require a person to participate in a scheme and impose benefits sanction if s/he does not participate (paragraphs 58–75);
  • the imposition of the work condition in this case does not fall within the ambit of Article 4 of the European Convention on Human Rights, which protects the right of individuals to be free from forced labour (paragraphs 76–90).

The judgment of the Supreme Court was complicated because in March 2013 the government rushed emergency legislation, The Jobseekers (Back to Work Schemes) Act 2013, through Parliament. This Act retrospectively amended the law and effectively overturned the Court of Appeal’s judgment, validating both the regulations and any defective notices served under the old regulations. The Supreme Court was moved to comment in its judgment that this placed the government in the ‘rather unattractive’ position of ‘taking up court time and public money to establish that a regulation is valid, when it has already taken up Parliamentary time to enact legislation which retrospectively validates the Regulation’ (paragraph 40).

We have already issued judicial review proceedings on behalf of Cait Reilly and others challenging the legality of the retrospective legislation, which we will now seek to expedite.4 We are likely to appeal the findings on Article 4 to the European Court of Human Rights in Strasbourg.

Notwithstanding the above, the findings of the Supreme Court on the claimants’ cross appeal were not academic and are not affected by the passing of the retrospective legislation. The requirement on the DWP to provide job-seekers with adequate information about the schemes has far-reaching implications for all jobseekers who, like our client Jamie Wilson, have not been, and continue not to be, provided with proper information.

Following the judgment, claimants may have a new ground on which to seek repayment of their benefits if they have not been provided with adequate information, and the DWP has a duty to provide adequate information to jobseekers about the schemes and the criteria for being placed on such schemes. It will not be enough for the DWP to simply have information downloadable on a website. It must ensure that each claimant is provided with that information whether verbally or in writing.

Next steps

In assessing whether a claimant has a new ground on which to appeal against a benefits sanction, the following questions should be asked.

What information was the claimant given about the back-to-work schemes available to him/her prior to being served with a notice of a requirement to participate on a given scheme?

In the case of Jamie Wilson and Cait Reilly, very little information was provided to them about the schemes which they were then required to participate in. Jamie Wilson was merely told he would be working 30 hours a week renovating reused furniture and that he must do whatever activities the private provider, Ingeus, told him to do. The object of the scheme, its goals and who it was designed for, or indeed what other schemes were available to him, were not explained at all. This meant that he was unable to make informed and meaningful representations about whether the Community Action Programme was appropriate and the most reasonable scheme for him.

If a claimant you are working with is similarly not provided with such information, then according to the judgment of the Supreme Court, the likely effect of that failure is to render ineffective any notice served requiring the claimant to participate in a given scheme. As such, any sanctions imposed following the notice will also be unlawful.

Are there representations the claimant would have made had s/he been provided with adequate information about the available schemes?

The Supreme Court found that a failure to provide information to a claimant will only render a notice ineffective where the failure materially affects the claimant. So on the facts of each case, it will need to be determined whether the failure materially affected the claimant, such that it removed from her/him the opportunity of making representations which could have led to a different outcome. Claimants will need to be prepared to argue that the lack of information caused them prejudice – eg, they agreed to go on a course that turned out to be no use to them, or would have chosen to participate in a different scheme if they had known about it.

There is uncertainty following the ruling as to exactly what will need to be shown to a tribunal but we consider that the burden of proof has to lie with the DWP to show that in any given case the claimant was not materially affected by the failure to provide adequate information. After all, unless the lack of information has been remedied, the claimant will not be able to say what representations s/he would have made and whether those representations might have led to a different outcome. The presumption must be that the failure to provide information has materially affected the claimant.

When was the sanction imposed?

Advisers need to make sure that appeals are lodged within the time limit of one month. We understand that the government is now seeking to impose sanctions on claimants for failure to participate in schemes as far back as August 2012 when it began to stockpile decisions due to the Reilly & Wilson proceedings. The time limit in these cases runs from the date of the letter notifying the claimant of the sanction, not the date of the alleged failure. Late appeals can still be lodged within the absolute time limit of 13 months from the date of the decision.

Where the decision appealed against was made more than a month ago, the claimant will need to explain on the appeal form that permission is requested to lodge an out-of-time appeal. The claimant should state that an out-of-time appeal is justified on the basis that s/he has only just become aware of the implications of the Supreme Court judgment in Reilly & Wilson dated 30 October 2013, which clarified that the DWP is under a duty, as a matter of fairness, to provide adequate information about the available schemes before it can require someone to participate in a scheme and lawfully impose a sanction.

Conclusions

Claimants whose sanctions decisions were declared unlawful by the Court of Appeal in February, but were retrospectively deemed lawful by the Jobseekers (Back to Work Schemes) Act passed in February 2013 can (if in time) make an appeal under the new ground for appeal explained above: that they have not received adequate information about the scheme they were required to participate in, and citing paragraphs 76–90 of the Supreme Court judgment. This includes cases where decisions have been stockpiled (see above), as any such decisions will be made under the 2011 regulations. Claimants in this situation who already have appeals lodged with either the First-tier Tribunal or the Upper Tribunal should raise this as an additional ground of appeal.

Claimants who have been sanctioned from 13 February 2013 onwards (ie, under the 2013 version of the regulations) can also appeal on the new ground of appeal explained above. In addition, they can use the finding of the Supreme Court and argue that the notice was unlawful as it required them to perform ‘any activities’. Again, claimants who have appeals lodged with either the First-tier Tribunal or the Upper Tribunal should raise this as an additional ground of appeal.

The Reilly and Wilson proceedings have highlighted how the current system is neither fair nor transparent, with jobseekers frequently being stripped of their subsistence-level benefits after receiving inadequate and inaccurate information. The judgment of the Supreme Court provides some redress for job-seekers, who should wherever possible lodge appeals.

 


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