In R (on the application of Reilly and Wilson) vs Secretary of State for Work and Pensions  EWCA Civ 66 the appellants - Caitlin Reilly and Jamieson Wilson - challenged the lawfulness of the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 ("the ESE Regulations"). Their challenge was successful. The effect of the Court's judgment is that the Department for Work and Pensions had no right to impose a sanction on claimants who had failed to meet their requirements. The Bill has been introduced to reverse the effects of the Court of Appeal's decision and it is being 'fast-tracked' through Parliament.
Overview of the Bill:
- It avoids the need to repay claimants who have been sanctioned for failure to comply with requirements under the ESE Regulations.
- Sanctions may be imposed in cases where decisions have been put on hold since the decision of the High Court or Court of Appeal. If sanctions had to be repaid / could not be imposed, the cost to the taxpayer is estimated to be up to £130 million.
- Any decision to sanction a claimant for failures to comply with the ESE Regulations cannot be challenged on the grounds that the ESE Regulations were invalid or the notices given under them inadequate, notwithstanding the Court of Appeal’s judgment.
- The Bill also addresses the risk that previous notifications to claimants made under the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 (S.I. 2011/688 – "the MWA Regulations"), which contain the same notification provisions as the ESE Regulations, may also be open to challenge on the basis of the Court of Appeal’s judgment.
The imposition of 'sanctions' on individuals is likely to result in enormous hardship to those who have, often through no fault of their own, come on hard times through loss of employment. On this, see (for example) The Guardian The jobseeker's story: I'm not proud to say that I've gone begging
and see the video at You're money is stopped, you go into freefall
On 21st March, The Guardian looked at the Bill in The Jobseeker's Bill: a shameful retroactive stitch-up. The article begins: 'Last Thursday, the justice secretary, Chris Grayling, lauded the role of the legal sector in driving the UK's economic growth. "British law has an unrivalled reputation in the world," he trumpeted , "a decision from a UK court carries a global guarantee of impartiality, integrity and enforceability. At the same time as Grayling was delivering his speech ...., his colleagues in Westminster were publishing the jobseekers (back to work schemes) bill, a piece of emergency legislation whose sole purpose is to make one particular court decision just that little bit less enforceable.'
The Labour Opposition in Parliament states that it finds the bill 'difficult' but they argue that their failure to oppose the bill is 'the right call' - Labour List This article, by Liam Byrne MP, is well worth reading in full. Byrne points out that the Bill restores to the Department of Work and Pensions its legal power to sanction anyone who gets Jobseeker’s Allowance if they did not take steps to find work. It’s a power that government has had since 1911.
That is so but there seems to be a new zeal with which, under pressure to achieve targets, DWP staff are applying sanctions - Government admits Jobcentres set targets to take away benefits. Citizens Advice Bureau argue that the only target should be to get it right.
The Bill is being fast-tracked through Parliament. The explanatory notes set out the government's reasons for this. The following is extracted from those notes:
The Department will be seeking permission to appeal the Court of Appeal’s judgment. If permission to appeal to the Supreme Court is not granted, or the Supreme Court finds against the Department, primary legislation would be needed to ensure that the Government does not have to make repayments to (and can impose sanctions where decisions have been stayed, on) all claimants who failed to take part in programmes comprised in the ESE Regulations. Fast-tracking the Bill is necessary in order to provide certainty and thus safeguard the Government’s position.
It is the Department’s view that emergency primary legislation is necessary. As soon as the litigation ends the Government would incur the above mentioned liability. The only way to ensure that the Department does not have to make any sanction repayments and can impose sanctions where decisions have been stockpiled is to press ahead with emergency legislation.
Fast-tracking is necessary to safeguard against the risk of having to repay sanctions to claimants, and of losing the ability to impose sanctions where decisions have been stockpiled, in the event of permission to appeal being refused and to provide certainty.
The legislation does not change the underlying policy. It restores the policy intention of the ESE Regulations and the intended effectiveness of the notices given under them. There is therefore no need for an external consultation to be considered.
The Bill does not include a sunset clause because the legislation is retrospective.
Are we seeing here a further example of lack of humanity at the heart of the present government or is this a necessary step to ensure that the ability to impose sanctions is maintained? In appropriate cases, the sanctions policy is no doubt required so to that extent the government's actions are necessary. However, there needs to be some recognition of the fact that it is now much harder for almost any person out of work to gain further employment and some factors (e.g. age) continue to definitely count against the individual even if such discrimination is, strictly speaking, unlawful. In the daily application of regulations, a recognition of - 'There but for the grace of God, go I' - would not be amiss.
Note: The Bill discussed in this post became the Jobseekers (Back to Work Schemes) Act 2013