Thursday, 31 October 2013

Supreme Court dismisses the Government’s Appeal on the “Back to Work” Regulations!

We are publishing a recent press release issued by Public Interest Lawyers (PIL) concerning the recent decision by the supreme court to dismiss the Government's appeal on the 'Back-to-Work' Regulations.

Today in a landmark decision the Supreme Court has dismissed the Government’s appeal against the Court of Appeal’s unanimous findings in February that the Regulations[1] under which most of the Government’s “Back to Work” schemes were created were unlawful and should be quashed.
The original case was brought by our clients Cait Reilly, who was made to stack shelves in Poundland for two weeks[2], and Jamie Wilson, who was stripped of his Jobseeker’s allowance for 6 months after refusing to participate in a scheme[3] which required him to work 30 hours a week for six months for free.
In an important judgment the Supreme Court held that:
  1. The Court of Appeal had been right to quash the Regulations on the basis that the Secretary of State, Iain Duncan Smith, has 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. (paras
  2. 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. (paras 43-52)
In relation to a cross-appeal brought by the Claimants, the Court found that:
  1. 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 the relevant scheme so that they can make informed and meaningful representations as to whether a scheme is appropriate before a decision is made. This information 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 on a scheme and impose benefits sanction if they do not participate. As a result of this finding we will be seeking the full repayment of benefits unlawfully stripped from our client Jamie Wilson. (paras 58 – 75)
  2. That the imposition of the work condition in this case does not fall within the ambit of Article 4 of the ECHR which protects the right of individuals to be free from forced labour. (paras 76-90)
The judgment of the Supreme Court has been complicated because in March 2013 the Government rushed emergency legislation - The Jobseekers (Back to Work Act) 2013 - through parliament. This Act retrospectively amended the law and effectively overturned the Court of Appeal’s judgment. 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” (para 40).
Public Interest Lawyers have already issued judicial review proceedings challenging the legality of the retrospective legislation which we will now seek to expedite.[4]
Notwithstanding the above, the findings of the Supreme Court on the Claimants’ cross appeal were not academic. The requirement on the DWP to provide jobseekers with adequate information about the schemes has far reaching implications as all jobseekers who, like Jamie, were not provided with adequate information will able to seek the repayment of their benefits. We will also be considering carefully whether we will appeal the Court’s finding on Article 4 ECHR to the European Court of Human Rights. 
Following the judgment, Cait Reilly stated:
“I am really pleased with today’s judgment which I hope will serve to improve the current system and assist jobseekers who have been unfairly stripped of their benefits. I brought these proceedings because I knew that there was something wrong when I was stopped from doing voluntary work in a local museum and instead forced to work for Poundland for free. I have been fortunate enough to find work in a Supermarket but I know how difficult it can be. It must be time for the Government to rethink its strategy and actually do something constructive to help lift people out of unemployment and poverty.” 
Phil Shiner, head of Public Interest Lawyers said:
“Once again the Department for Work and Pension’s flagship Back to Work schemes have been found wanting. Today’s ruling from the Supreme Court is of huge constitutional and practical significance. My firm will now get on with challenging, by judicial review, the retrospective legislation which was shamefully rushed through Parliament by Iain Duncan Smith in March of this year.” 

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