Upper Tribunal (Administrative Appeals Chamber), February 11, 2015, [2015] UKUT 56 (AAC)

Resolution Date:February 11, 2015
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:DB v Secretary of State for Work and Pensions v TJ (JSA) (Jobseekers allowance : other)
 
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SSWP -v-TG (JSA) [2015] UKUT 0056 (AAC)

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CJSA/1266/2013, CJSA/2431/2013 and CJSA/2542/2013

SSWP -v-TJ (JSA) [2015] UKUT 0056 (AAC)

Before: Mr Justice Charles

Upper Tribunal Judge Rowland

Upper Tribunal Judge Wright

DECISIONS

The Upper Tribunal dismisses the appeals of the Secretary of State against the decisions of the First-tier Tribunal sitting at Sutton on 6 November 2012 under reference SC131/12/00950 and at Chesterfield on 14 December under reference SC034/12/04292.

The appellant's appeal against the decision of the First-tier Tribunal sitting at Newcastle-upon-Tyne on 17 December 2012 under reference SC227/12/04831 is allowed and the decision of the First-tier Tribunal set aside. The Upper Tribunal gives the decision the First-tier Tribunal ought to have made and sets aside the Secretary of State's decision of 7 June 2012. In consequence, jobseeker's allowance remains payable to the appellant from 12 June 2012 to 10 December 2012.

Representation: James Eadie QC and Zoe Leventhal for the Secretary of State

Tristan Jones (instructed by FRU) for TJ

Tom Richards (instructed by CPAG) for DB

TG neither appeared nor was represented

REASONS FOR DECISIONS

Index

Sub-heading Paragraph numbers

Introduction 1-12

Summary of decisions 13

Relevant legislation 14-22

Reilly and Wilson and Reilly No.2. 23-42

The ``work for your benefit schemes'' 43-55

Factual background

SSWP -v- TJ 56-62

DB -v- SSWP 63-67

SSWP -v- TG 68-74

Legal issues 75-76

Majority decision

First issue - Retrospective extent of 2013 Act 77-98

Second issue - Section 12(8)(b) Social Security Act 1998 99-117

Third issue - Section 3 Human Rights Act 1998 118-126

Minority decision on first to third issues 127-172

Unanimous decision on all other issues

Fourth issue - Section 12(2) Tribunal, Courts and 173-175 Enforcement Act 2007

Fifth issue - Regulation 4 notices 176-220

Sixth issue - Prior information requirement 221-254

Seventh issue - ``Good cause'' under regulation 7 255-268

Conclusion 269-270

Grant of permission to appeal to Court of Appeal 271

Introduction

  1. These three appeals are concerned with a number of important issues which arise out of the litigation concerning a Ms Reilly and a Mr Wilson that ended with the Supreme Court's decision in R(Reilly and Wilson) -v- Secretary of State for Work and Pensions [2013] UKSC 68; [2014] AC 453 (``Reilly and Wilson'').

  2. In very broad terms at this stage, the litigation in Reilly and Wilson concerned the lawfulness of programmes under the Employment, Skills and Enterprise Scheme, or ``work for your benefit schemes'', that applied to people claiming jobseeker's allowance (``JSA''). Regulations purportedly made under section 17A of the Jobseekers Act 1995 - the Jobseeker's Allowance (Employment, Skills and Enterprise Schemes) Regulations 2011 (SI 2011/917) (``the 2011 Regs'') - provided, inter alia, by regulation 4 that where a JSA claimant had been selected to participate in one of the schemes he had to be provided with a notice specifying certain matters. If a claimant without good cause did not participate in a scheme he had lawfully been required to participate in, JSA would not be payable to him (i.e. would be sanctioned) for a period of time of 2, 4 or 26 weeks.

  3. The High Court held in Reilly and Wilson that the standard form notices used by the Secretary of State did not comply with the requirements of regulation 4 and were invalid. As a result there was no lawful basis for the sanctions imposed on Ms Reilly and Mr Wilson (they not having lawfully been required to participate in any schemes). On appeal, the Court of Appeal went further and held that the whole of the 2011 Regs were ultra vires the Jobseekers Act 1995; that is, they had not been properly made under section 17A of that Act.

  4. The Supreme Court in Reilly and Wilson, in effect, upheld the Court of Appeal's decision on the 2011 Regs being ultra vires, and it also varied the basis on which the notices failed to meet regulation 4 of the 2011 Regs (if those regulations had been made properly). It also held that the Secretary of State had failed to provide Ms Reilly and Mr Wilson with ``adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required'', and this would have provided an alternative basis for finding the notice served on Mr Wilson as being legally ineffective were it not for the whole of the 2011 Regs being ultras vires (or the terms of regulation 4 not having been met by that notice if that regulation had been found not to be ultra vires its parent Act).

  5. However, in the intervening period between the Court of Appeal's judgment on 12 February 2013 and the Supreme Court's decision on 30 October 2013, the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013/276), (referred to as the ``2013 Regulations'' by us and in the 2013 Act) had replaced the 2011 Regs (on the day of the Court of Appeal's judgment). More importantly for the purposes of these appeals, Parliament had passed the Jobseekers (Back to Work Schemes) Act 2013 (``the 2013 Act''). At this stage we do no more than set out, without comment, the Supreme Court's description at paragraph [36] of the 2013 Act as ``plainly intended to ``undo'' the decision of the Court of Appeal, in that ....it retrospectively validates (i) the 2011 Regulations, (ii) the programmes listed in regulation 3(2) of the 2013 Regulations, (iii) notices issued under regulation 4 of the 2011 Regulations, and (iv) the benefit sanctions imposed under those Regulations in relation to the schemes''.

  6. Given the way in which the arguments have developed before us, especially at the hearing, the first issue before us is whether the 2013 Act affects appeals that had already been brought before the First-tier Tribunal. We are divided on this issue.

  7. All of the appeals before us concern claimants where the sanction decisions were made well before the 2013 Act had come into effect. Moreover, two of the claimants had won their appeals before the First-tier Tribunal against the sanction decisions on the basis of the binding authority of the High Court in Reilly and Wilson. In deciding all three appeals the First-tier Tribunal was prohibited from taking into account ``any circumstances not obtaining at the time the decision appealed against was made'': per section 12(8)(b) of the Social Security Act 1998 (``SSA 1998'').

  8. The second issue we have to address is how the 2013 Act fits with section 12(8)(b) of the SSA 1998 given the 2013 Act was not in existence at the time of the decisions under appeal to the First-tier Tribunal. We are agreed on this issue but our reasoning does not fully overlap.

  9. Further, as the Supreme Court noted when describing the 2013 Act, the 2013 Act was the subject of a judicial review challenge in the High Court on the ground that it breached certain claimants' rights under Article 6(1) of the European Convention on Human Rights (``the Convention''). That challenge - R(Reilly (No.2) and Hewstone -v- SSWP [2014] EWHC 2182 (Admin) (``Reilly No.2'') - found that the 2013 Act did breach Article 6(1) of the Convention in respect of claimants who had appealed adverse sanctions decisions before the 2013 Act was on the statute book. However, the court held that the only remedy that could be afforded under the Human Rights Act 1998 (``the HRA'') was a declaration of incompatibility in respect of the 2013 Act. In addressing the first two issues, we have to consider whether the 2013 Act or the SSA 1998 Act can be read under section 3 of the HRA so as to avoid this incompatibility. We refer to this as the ``third issue''. We are divided on this issue.

  10. A fourth issue arises, also under the HRA, as to whether even if the first three issues are resolved against the claimants in these appeals, our discretion under section 12(2)(a) of the Tribunals, Court and Enforcement Act 2007 ought to be exercised so as not to set aside the decision of the First-tier Tribunals where the claimants were successful on the basis, so it is argued, that to do so would involve the Upper Tribunal infringing their Article 6 rights. We are agreed on this issue.

  11. There are then three other issues on which we are agreed. They need to be addressed in the light of the particular facts of the three appeals. These are: (a) whether a notice complying with the terms of regulation 4 of the 2011 was served (the ``fifth issue''); (b) whether there was a lack of sufficient ``prior information'' such that the requirement to participate in the relevant ``work for your benefit'' schemes was vitiated (the ``sixth issue''); and (c) whether the legal requirements for establishing ``good cause'' under regulation 7 of the 2011 regulations were met (the ``seventh issue'').

  12. As we have said, we are divided on the first and third issues: Judges Rowland and Wright forming the majority; Mr Justice Charles the minority. Our majority decision on those two issues is dispositive of the three appeals before us, and if not overturned on appeal will also dispose of many thousands of other appeals currently before the First-tier Tribunal and the Upper Tribunal which have been stayed behind these lead cases. On the basis of the majority decision on the first and third issues, our reasoning and conclusions on the other issues will have little or no bearing on these appeals and those that have been stayed. On the other hand, the majority decision on the first and third issues is very likely to be the subject of an appeal to the Court of Appeal, and if it is overturned what we say on the fifth to seventh issues is likely to be determinative of, or at least have a substantial bearing on, the stayed appeals As far as we can see, the fourth issue is unlikely to have any bearing one way or the other. . Given this, we have addressed...

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