England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham
		31st July 2015

Mr Justice Hickinbottom:

Introduction

1. The Claimant Mrs Jane Smith challenges the decision to require her to participate in the Skills Conditionality scheme under the provisions of the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013 No 276) ("the SAPOE Regulations"); and, more generally, the Jobseeker's Allowance Post Work Programme Support measures of which that requirement was part.
2. Before me, the Claimant appeared in person, presenting her submissions with moderation and clarity. Mr Andrew Sharland appeared for the Defendant Secretary of State. At the outset, I thank both for their contribution.

The Law

3. Jobseeker's allowance ("JSA") is a benefit deriving from the Jobseekers Act 1995 ("the 1995 Act"). In this judgment, statutory references are to the 1995 Act, unless the contrary appears.
4. The conditions of entitlement to JSA are set out in section 1(2) and are, so far as relevant to this claim, as follows:

"Subject to the provisions of this Act, a claimant is entitled to a [JSA] if he –

(a) is available for employment;

(b) has entered into a jobseeker's agreement which remains in force;

(c) is actively seeking employment…".

JSA is payable in respect of a week (section 1(3)).

5. "Actively seeking employment" is defined in section 7(1), thus:

"For the purposes of this Act, a person is actively seeking employment in any week if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment."

Section 7(2) gives the Secretary of State power to make regulations "with respect to steps which it is reasonable, for the purposes of subsection (1), for a person to be expected to have to take in any week"; and as to circumstances to be taken into account in determining whether, in relation to steps taken by any person, the requirements of subsection (1) are satisfied in any week.

6. The relevant regulations under that section are the Jobseeker's Allowance Regulations 1996 (SI 1996 No 207) ("the JSA Regulations"). Regulation 18(1) provides:

"For the purposes of section 7(1) (actively seeking employment) a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week."

Regulation 18(2) sets out examples of steps that it may be reasonable for a person to be expected to have to take in any week, e.g. applications for employment, seeking information about employment, registration with an employment agency etc. Regulation 18(3) sets out circumstances that should be taken into account in determining whether, in relation to any steps taken by a person, the actively seeking work requirements of section 7(1) are met, e.g. the claimant's skills, experience and abilities, any physical or mental limitations, and the time that has elapsed since he was last in employment.

7. Jobseeker's agreements are dealt with in section 9 of the 1995 Act. So far as relevant to this claim, section 9 provides:

"(1) An agreement which is entered into by a claimant and an employment officer and which complies with the prescribed requirements in force at the time when the agreement is made is referred to in this Act as 'a jobseeker's agreement'.

(2) A jobseeker's agreement shall have effect only for the purposes of section 1.

(3) A jobseeker's agreement shall be in writing and be signed by both parties.

(4) A copy of the agreement shall be given to the claimant.

(5) An employment officer shall not enter into a jobseeker's agreement with a claimant unless, in the officer's opinion, the conditions mentioned in section 1(2)(a) and (c) would be satisfied with respect to the claimant if he were to comply with, or be treated as complying with, the proposed agreement…".

8. If an employment officer and claimant cannot agree upon the terms of a jobseeker's agreement, the officer is therefore proscribed from entering into it. There is consequently a need for a deadlock-breaking provision because, without a jobseeker's agreement, a claimant cannot obtain JSA. That provision is made in section 9(6) and (7):

"(6) The employment officer may, and if asked to do so by the claimant shall forthwith, refer a proposed jobseeker's agreement to the Secretary of State for him to determine –

(a) whether, if the claimant concerned were to comply with the proposed agreement, he would satisfy –

(i) the condition mentioned in section 1(2)(a), or

(ii) the condition mentioned in section 1(2)(c); and

(b) whether it is reasonable to expect the claimant to have to comply with the proposed agreement.

(7) On a reference under subsection (6) the Secretary of State –

(a) shall, so far as practicable, dispose of it in accordance with this section before the end of the period of 14 days from the date of the reference;

(b) may give such directions, with respect to the terms on which the employment officer is to enter into a jobseeker's agreement with the claimant, as the Secretary of State considers appropriate;

(c) may direct that, if such conditions as he considers appropriate are satisfied, the proposed jobseeker's agreement is to be treated (if entered into) as having effect on such date, before it would otherwise have effect, as may be specified in the direction…".

9. The contents of a jobseeker's agreement are prescribed by regulation 31 of the JSA Regulations, to include:

"(e) the action which the claimant will take –

(i) to seek employment; and

(ii) to improve his prospects of finding employment.

(f) …

(g) a statement of the claimant's right –

(i) to have a proposed jobseeker's agreement referred to the Secretary of State

(ii) to seek revision or supersession of any determination of, or direction given by, the Secretary of State; and

(iii) to appeal to the First-tier Tribunal (Social Entitlement Chamber) against any determination of, or direction given by, the Secretary of State following a revision or supersession.

(h) … "

10. As can be seen, there is thus a comprehensive appeal route from a decision of an employment officer as to the contents of a jobseeker's agreement, through the Secretary of State, and thence to the First-tier Tribunal (Social Entitlement Chamber) and onwards on a point of law to the Upper Tribunal (Administrative Appeals Chamber) and Court of Appeal (Civil Division).
11. In November 2013, there were 1.16m people aged 18 or over in receipt of JSA, of whom 360,000 had been in receipt of the benefit for more than 12 months. In 2013-14, the public expenditure on the benefit was £4.35bn. Given those figures, it is understandable that the Government wish to help and encourage those on JSA to obtain work.
12. From 12 November 2009, section 1(2) of the Welfare Reform Act 2009 added section 17A to the 1995 Act, under the heading "Schemes for assisting persons to obtain employment: 'work for your benefit' schemes etc", in the following terms (again, insofar as relevant to this claim):

"(1) Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment.

(2) Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment.

(3) In subsection (2) 'work-related activity', in relation to any person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.

…

(5) Regulations under this section may, in particular, make provision –

(a) for notifying participants of the requirement to participate in a scheme within subsection (l);

(b) for securing that participants are not required to meet the jobseeking conditions or are not required to meet such of those conditions as are specified in the regulations;

. . .

(10) In this section –

…

'participant', in relation to any time, means a person who is required at that time to participate in a scheme within subsection (1)".

Section 35 provides that "prescribed" here means "specified in or determined in accordance with regulations".

13. Section 17B contains provisions empowering the Secretary of State to make arrangements for the implementation of schemes made under section 17A.
14. Various regulations have been purportedly made under section 17A from time-to-time, two of which have been subject to the scrutiny of the higher courts.
15. The first to be considered were the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (SI 2011 No 917) ("the ESES Regulations"). Regulation 2 defined "the Scheme" as "the Enterprise, Skills and Enterprise Scheme", which in turn it defined as follows:

"'The Enterprise, Skills and Enterprise Scheme' ['the ESE Scheme'] means a scheme within section 17A (schemes for assisting persons to obtain employment: 'work for your benefit' schemes etc) of the [1995] Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search)."

16. Seven "work for your benefit" schemes or programmes were purportedly made under the umbrella of the ESE Scheme, two of which specifically featured in the eventual challenge to those regulations – the sector-based work academy scheme, and the Community Action Programme – the details of which are not material to this claim.
17. In R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] EWCA Civ 66 ("Reilly (CA)"), the Court of Appeal quashed the ESES Regulations as ultra vires the 1995 Act. The court held that section 17A required any scheme to be described in the relevant regulations; and the ESES Regulations contained no description of the ESE Scheme at all – they merely prescribed that there should be a scheme and gave it a name. The court also held that the notices sent to the claimants requiring them to participate in the scheme were also unlawful, as not complying with the ESES Regulations: the notice to one of the claimants (Mr Wilson), for example, merely informed him that he had to perform "any activities" requested of him by the work provider over a period of six months (see, further, paragraph 80 below).
18. The Court of Appeal stressed that the schemes and programmes that are considered beneficial for JSA claimants are entirely a matter for Parliament. Both the Secretary of State and Parliament itself reacted quickly to the Court of Appeal decision in Reilly.
19. On the day the Court of Appeal judgments were handed down (12 February 2013), the ESES Regulations were replaced by the SAPOE Regulations, which set out descriptions of the seven schemes that had been brought in purportedly under the ESE Regulations. Regulation 3(1) stated that:

"The schemes described in the following paragraphs are prescribed for the purposes of section 17A(1)… of the [1995] Act."

20. Two of the listed schemes are relevant to the claim before me. First, regulation 3(8) provides:

"The Work Programme is a scheme designed to assist a claimant at risk of becoming long-term unemployed in which, for a period of up to 2 years, the claimant is given such support as the provider of the Work Programme considers appropriate and reasonable in the claimant's circumstances, subject to minimum levels of support published by the provider, to assist the claimant obtain and sustain employment which may include work search support, provision of skills training and work placements for the benefit of the community."

I shall refer to this as "the Work Programme".

21. Second, regulation 3(7) provides:

"Skills Conditionality is a scheme comprising training or other activity designed to assist a claimant to obtain skills needed to obtain employment."

I shall refer to this as "the SC Scheme".

22. The SAPOE Regulations have been amended from time-to-time to add and remove various schemes, but the Work Programme and the SC Scheme have remained unaltered.
23. Under regulation 4(1) of the SAPOE Regulations:

"The Secretary of State may select a claimant for participation in a scheme described in regulation 3";

and by regulation 5(1) and (2), subject to exceptions irrelevant to this claim:

"(1) … [A] claimant selected under regulation 4 is required to participate in the Scheme where the Secretary of State gives the claimant notice in writing complying with paragraph (2).

(2) The notice must specify –

(a) that the claimant is required to participate in the Scheme;

(b) the day on which the claimant's participation will start;

(c) details of what the claimant is required to do by way of participation in the Scheme;

(d) that the requirement to participate in the Scheme will continue until the claimant is given notice by the Secretary of State that the claimant's participation is no longer required, or the claimant's award of [JSA] terminates, whichever is the earlier; and

(e) information about the consequences of failing to participate in the Scheme".

24. For the purposes of this claim, it is the SAPOE Regulations (and particularly regulation 3(7) and the SC Scheme) that are relevant. However, to complete the legal chronology:

i) The ESE Regulations were replaced by the SAPOE Regulations from 12 February 2013. However, to ensure that decisions that had already been made under the ESE Regulations were regularised, on 26 March 2013, the Jobseekers (Back to Work Schemes) Act 2013 was passed, having been expedited through Parliament, retrospectively to validate the ESE Regulations, and notices issued and sanctions imposed under those Regulations.

ii) On 30 October 2013, the Supreme Court upheld the Court of Appeal decision in Reilly (CA) ([2013] UKSC 68) ("Reilly (SC)").

25. As I indicated in R (Smith) v Secretary of State for Work and Pensions [2014] EWHC 843 (Admin) at [19] ("Smith (Admin Ct)"): see below at paragraphs 26-28), in construing the ESES Regulations and in particular whether they made provision for a requirement for JSA claimants to participate in "schemes of any prescribed description that are intended to assist them to obtain employment", in Reilly the Court of Appeal and Supreme Court (which largely adopted the analysis and reasoning of the Court of Appeal) stressed the following.

i) Parliament is entitled to authorise the creation and administration of schemes designed to assist the unemployed to obtain work; and to encourage participation by imposing sanctions for refusal to participate without good cause.

ii) However, any scheme must be authorised by Parliament, which has not adopted any of the well-known formulae for conferring complete flexibility of decision-making on the Secretary of State.

iii) Although, by the words used in the statute, Parliament did not intend to confer complete flexibility on the Secretary of State, both the Court of Appeal and the Supreme Court recognised the need for considerable flexibility. Lord Neuberger PSC and Lord Toulson JSC, giving the judgment of the Supreme Court, said (at [46]):

"… The need for flexibility cannot be doubted. As Pill LJ said in the Court of Appeal, at [49], "[t]he needs of jobseekers will vary infinitely, as will the requirements of providers prepared to participate in arrangements with them".

iv) However:

"Where Parliament in a statute has required that something be prescribed in delegated legislation, it envisages, and I think requires, that the delegated legislation adds something to what is contained in the primary legislation. There is otherwise no point in the requirement that the matter in question be prescribed in delegated legislation…" (Reilly (CA) at [75] per Sir Stanley Burnton, approved and adopted by the Supreme Court at Reilly (SC) at [48]).

v) In the case of the ESE Scheme, the ESES Regulations added nothing to the statutory provisions except a bare name:

"In effect, the Secretary of State contends that any scheme he creates is a scheme within the meaning of section 17A notwithstanding that it is not described in any regulations made under the Act. Furthermore, it is not possible to identify any provision of the [ESES] Regulations that can be said to satisfy the requirement that the description be 'determined in accordance with' the Regulations…" (ibid).

vi) The Act differentiates between schemes (the subject of section 17A) and arrangements (the subject of section 17B). Section 17A requires the relevant description to be in the scheme regulations, not the arrangements outside the scheme (Reilly (CA) at [75] per Sir Stanley Burnton).

vii) As section 17A(1) requires a prescribed description, and the ESES Regulations provided no description of the scheme whatsoever, the Regulations were ultra vires; but both the Court of Appeal and Supreme Court declined to indicate precisely the detail that must be included for compliance (see Reilly (CA) at [61] per Pill LJ and [76] per Sir Stanley Burnton; and Reilly (SC) at [49]). However, while it is a fundamental duty of the courts to ensure that the executive carries out its functions in accordance with the requirements of Parliament as expressed in primary legislation, "it is also incumbent on the courts to be realistic in the standards they set for such compliance" (Reilly (SC) at [49]). In other words, in setting the right standard, the court must have in mind that these schemes operate in the real world.

26. The second set of regulations purportedly made under section 17A to have been considered by the higher courts are the Jobseeker's Allowance (Mandatory Work Activity Scheme) Regulations 2011 (SI 2011 No 688) ("the MWAS Regulations"). Regulation 2 of the MWAS Regulations provides that "the Scheme" means "the Mandatory Work Activity Scheme" ("the MWA Scheme") which is defined as follows:

"'The Mandatory Work Activity Scheme' means a scheme within section 17A (schemes for assisting persons to obtain employment: 'work for your benefit' schemes etc) of the [1995] Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to provide work or work-related activity for up to 30 hours per week over a period of four consecutive weeks with a view to assisting claimants to improve their prospects of obtaining employment;...".

27. In Smith, the Claimant's husband, Mr Nicholas Smith, challenged the sufficiency of the description of that scheme on similar grounds to those raised in Reilly. At first instance, I refused the claim on the grounds that, unlike the ESE Scheme in the ESES Regulations, there was some description of the MWAS Scheme prescribed in the MWAS Regulations; and the description given was sufficient for the purposes of section 17A(1). In particular, the Regulations provided (i) that the scheme be designed to provide "work-related activity", and (ii) a duration for the scheme.
28. That was upheld on appeal ([2015] EWCA Civ 229: "Smith (CA)"). In dismissing the appeal, Underhill LJ (with whom Richards and Briggs LJ agreed), said this:

"25. In my view the [MWAS] Regulations do prescribe a description of the [MWA] Scheme within the meaning of section 17A(1). On a natural reading of the phrase 'prescribed description' seems to me to connote no more than an indication of the character of the scheme provided for, such as a scheme in which the claimant was required to undergo training or education or to work with a mentor, or – as here – to do work or work-related activity. I see nothing in the scheme of sections 17A and 17B to suggest that Parliament intended that the Regulations should go into any further detail. If that had been the intention I would have expected that section (or section 17B) to specify the particular matters which they were intended to cover.

26. It is in fact in my view reasonably clear that Parliament did not go down that path because it recognised the need for the schemes which were to be provided to allow for considerable flexibility in their application to particular groups of claimants….

27. Mr Smith contended that a construction of section 17A(1) which allows regulations to be made with so little detail as to the work to be done would contravene the principle of legal certainty, to which Lord Neuberger and Lord Toulson refer at [47] of their judgment. I do not accept this. It is necessary to distinguish the different questions which a claimant might ask when presented with a requirement to participate in what is said to be an MWA Scheme. It is of course of the first importance that he should know with specificity what he was being required to do; but that is achieved by the notice provisions in regulation 4, and in particular by paragraph (2)(d), under which he must be given notice in writing 'details of what [he] is required to do by way of participation in the scheme' (as to this, cf the observations of Lord Neuberger and Lord Toulson at [51] of their judgment). Secondly, he might legitimately want to know whether that requirement fell within the terms of the Regulations, but that question will be answerable by reference to the definition in regulation 2(1): it will fall within the scheme if it constitutes 'work or work-related activity' and the prescribed period of participation is not exceeded. I see no uncertainty there: the fact that the description is wide does not mean that it is uncertain. Thirdly, there is the question whether the Regulations providing for such a scheme fall within the scope of the powers given by section 17A. As to that, once it is decided, as I would decide, that section 17A allows for regulations to be made which describe a scheme in such general terms, there is again no problem of uncertainty…".

With that analysis, I respectfully agree. Although more elegant, as Underhill LJ noted (at [29]), it is in essentially the same terms as my own reasoning at first instance.

29. I have referred to "sanctions" that might be imposed upon a claimant for failing to participate in a scheme in which he has been required to participate. Sections 19 and 19A set out circumstances in which an award of JSA is to be reduced for a "sanctionable failure", as defined in sections 19(2) and 19A(2) to include where a claimant:

i) "without a good reason fails to participate in any scheme within section 17A(1) which is prescribed for the purposes of this section (section 19(2)(e));

ii) "without a good reason fails to comply with regulations under section 17A" (section 19A(2)(b));

iii) "without a good reason refuses or fails to carry out a jobseeker's direction which was reasonable having regard to his circumstances" (section 19A(2)(c));

iv) "without a good reason neglects to avail himself of a reasonable opportunity of a place on a training scheme or employment programme" (section 19A(2)(d));

v) "without a good reason refuses or fails to apply for, or accept if offered, a place on such a scheme or programme which an employment officer has informed him is vacant or about to become vacant" (section 19A(2)(e)); and

vi) "without a good reason gives up a place on such a scheme or programme or fails to attend such a scheme or programme having been given a place on it (section 19A(2)(f)).

30. By section 19(4) and 19A(4), regulations are to provide for the amount of reduction and the period for which such a reduction has effect. Regulation 69 and 69A of the JSA Regulations (as amended from 22 October 2012 by regulation 2 of the Jobseeker's Allowance (Sanctions) (Amendment) Regulations 2012 (SI 2012 No 2568)) provide for both amount and period, in various circumstances.
31. Of this sanctions regime, two points are of note:

i) The regime does not provide for a reduction in JSA if a claimant is not actively seeking work. It does not have to do so; because, by virtue of section 1(2)(c), actively seeking work is a specific condition of entitlement.

ii) There is no sanction for a claimant breaching a jobseeker's agreement, i.e. failing to perform in respect of the matters to which he has committed in the agreement. However:

a) Where a claimant fails to take steps to which he has committed in the agreement such that he is regarded as not actively seeking employment, then his entitlement to JSA will come to an end because he will not be in compliance with the condition of entitlement in section 1(2)(c). I return to the relationship between the requirement actively to seek work and jobseekers' agreements below (see paragraphs 87-106).

b) Where an employment officer gives a "jobseeker's direction" (defined in section 19A(11) as a direction in writing to assist the claimant to find employment or improve his prospects of being employed), and without a good reason the claimant fails to comply, that is a sanctionable failure (section 19A(2)(c)). It is open to an officer to give a direction in the terms of a commitment in a jobseeker's agreement which the claimant has not met.

Post Work Programme Support and the SC Scheme

32. The Claimant makes no complaint about the Work Programme, either generally or her participation in it from 2011 to 2013. The focus of her claim is upon (i) the Secretary of State's regime for Post Work Programme Support ("PWPS"), and (ii) the SC Scheme which, in the Claimant's case, formed part of that regime.
33. The press release issued by the Department of Work and Pensions ("the DWP") on the inception of the PWPS measures on 31 May 2013 – upon which Mrs Smith relied – indicated that PWPS targeted Work Programme leavers "as part of a tough new approach to get them into a job". They would be expected to go on training schemes, work placements and intensive work preparation within days of finishing the Work Programme, with close monitoring to ensure full participation. That monitoring included more regular attendances at the Jobcentre.
34. Ms Pauline Crellin is the Deputy Director for Universal Credit Labour Market & Partnerships Division of the DWP. In paragraph 37-41 of her statement of 1 May 2015, by reference to the internal DWP Post Work Programme Support Guidance (March 2015), she explains the nature of PWPS.
35. PWPS is not a programme in its own right. It has no discrete statutory basis, relying upon powers already present elsewhere in the JSA regime. It applies (as its name suggests) to a JSA claimant when his participation in the Work Programme ends. At that stage, a Work Programme Exit Report is compiled by the programme provider, and a Work Programme Completer Interview ("WPCI") with an employment officer or adviser at the relevant Jobcentre booked to take place within 15 days of the Work Programme completion date. The WPCI is a 40 minute full diagnostic interview which is required to be face-to-face between the claimant and an adviser, with a view to determining the appropriate route for the claimant. Each claimant is assigned to either the standard Jobcentre Plus Offer route or the Mandatory Intervention Regime ("MIR", an intensive regime of at least 26 weeks). At the WPCI, the adviser is required to (i) explain to the claimant the support available, (ii) conduct skills screening and consider the need for skills assessment, (iii) update the claimant's jobseeker's agreement and (iv) update the administrative computer system (the Labour Market System).
36. Ms Crellin explains the policy behind the SC Scheme – which is also used for other claimants than those who are just completing the Work Programme – as follows (paragraphs 31 and following of her statement of 1 May 2015):

"31. Skills Conditionality policy plays a pivotal role in integrating employment and skills support delivered by Government (skills being the responsibility of the Department of Business, Innovation and Skills). The aim is to identify and address barriers preventing benefit claimants achieving their job goals as early as possible; and to get claimants to think beyond immediate job goals by encouraging work-related learning or training.

32. The primary role of Jobcentre Plus is to screen claimants for possible skills needs, which is done as part of a jobseeker's work-focused interview. DWP has issued internal guidance to Jobcentre Plus advisers setting out administrative processes and what factors should be considered when making Skills Conditionality referral. The section on skills screening is introduced as follows:

Conducting Skills Screening Jobcentre Plus

13. Explain the importance of skills, including reading, numeracy and language in finding and sustaining work; and that help is available if needed.

14. Be aware that claimants may feel uncomfortable discussing educational ability.

15. Advisers should:

Undertake Skills Screening whilst gathering skills information in relation to the claimant's job goals;

Use evidence gathered through screening to make informed decisions on the appropriate action required to help the claimant find work and to develop the [jobseeker's agreement] or Action Plan.

33. Work-focused interviews are a chance for the claimant and Jobcentre adviser to talk about any barriers to work, including skills gaps. Where an adviser believes a referral to training or another scheme may be appropriate, the claimant has the opportunity to discuss this. It is in the interests of the clamant to engage fully with the adviser.

34. While staff guidance is not in the public domain, on 28 November 2013 the DWP published 'Jobseeker's Allowance Back to Work Schemes' on www.gov.uk, a guide to the different schemes and what is expected from participants. This guide contains information on a wide range of DWP schemes designed to develop a jobseeker's skills and work experience, including Skills Conditionality. Jobcentre Plus advisers provide an overview of back-to-work schemes at the New Jobseeker Interview at the start of a claim. Claimants are directed to read the online guide and told to come back to their adviser if they have any queries.

35. In brief, where evidence gathered at a claimant's work-focused interview suggests there may be a clear skills need which is a barrier to keeping them from moving into work, the claimant is referred on a mandatory basis to an appropriate local training provider for an initial provider interview for further assessment. The training provider then confirms whether training would be suitable and if a fully-funded place is available. The 'Skills Conditionality Toolkit' issued to training providers by the Skills Finding Agency in preparation for Skills Conditionality roll-out in 2011, states:

'8. Individuals are mandated first to the initial skills assessment by Jobcentre Plus and then mandated a second time to attend the provision. Before an individual can be mandated to attend provision, the college or training organisation must confirm to Jobcentre Plus that they have a suitable fully-funded place available. Providers do not have the power to mandate individuals – this is done by Jobcentre Plus.'

36. The SAPOE Regulations require that appropriate notifications are issued to claimants upon referral. The two [SC Scheme] letters relevant to Mrs Smith's case, which are handed to claimants during the preliminary discussion with a Jobcentre adviser, are

(i) Notice of mandatory referral to a skills assessment interview with a training provider or National Careers Service (letter SC02); and

(ii) Notice of mandatory referral to start training following an earlier skills assessment (letter SC04)."

37. In the Skills Conditionality Toolkit (July 2011), a joint publication by the DWP and the Skills Funding Agency, it is said (at paragraph 1) that:

"1. … [A]ll individuals claiming active benefits will be required to attend training as a condition of receiving benefits where a Jobcentre Plus adviser considers skills to be the main barrier preventing them from finding employment. All referrals from Jobcentre Plus to training provision will be done on a mandatory basis and advisers have no discretion.

…

8. Individuals are mandated first to the initial skills assessment by Jobcentre Plus and then mandated a second time to attend the provision…".

38. That is the general picture so far as SC Scheme policy is concerned. However, Ms Crellin explains that the Claimant's local Jobcentre in Telford uses a locally-produced flow-chart to guide employment officers undertaking WPCIs (paragraph 43 of her statement). That shows that, in respect of claimants who have completed the Work Programme without obtaining a job:

i) Claimants who have numeracy and/or literacy skill levels below level 1 are referred to specific numeracy/literacy training under the SC Scheme.

ii) Claimants who have recent work experience are placed on the Jobcentre Plus Offer route.

39. Claimants who have (i) numeracy and literacy skill levels of level 1 or above, and (ii) no recent work experience are placed within the Mandatory Intervention Regime ("MIR"). This mandates the following (all emphasis in the original flowchart):

i) Weekly face-to-face interviews with an officer at the Jobcentre.

ii) A referral to a two-week course called "Getting that Job" (or, if the claimant is a young person, the youth equivalent). The flowchart says:

"This referral is a mandatory skills conditionality referral and must be made at the [WPCI] or when the claimant joins MIR."

The flowchart shows that, for those who are required to undertake numeracy/literacy training to get them up to at least level 1, they then enter the MIR and are referred to the Getting that Job course.

iii) On return from the Getting that Job course:

"[C]heck if any additional support/provision is needed. Refer the claimant to the appropriate provision of needed (remember to use Jobseeker's Directions)".

iv) In the meantime, weekly face-to-face interviews are to continue until week 13:

"At this stage the claimant will have DAILY CONTACT and a weekly face-to-face adviser interview."

v) The regime ends after week 26. However, the flowchart says:

"Week 17: The claimant is now entitled to DAILY SIGNING and a weekly face-to-face interview."

"Week 21: The claimant is now entitled to a DAILY ADVISER INTERVIEW".

40. It is therefore clear that the SC Scheme is used as an integral part of the PWPS regime in Telford, to provide those who end the two-year Work Programme without a job with (i) numeracy/literacy training for those who require it, and (ii) the Getting that Job course for all those who do not have recent work experience. Thus, for all adults who have completed the Work Programme and who do not have recent work experience, participation in the Getting that Job course is a mandated requirement; and, if a claimant does not attend and participate, then he is liable to a JSA-reduction sanction.

The Facts

41. The Claimant first claimed and received JSA from 29 November 2005.
42. She signed a jobseeker's agreement, in the following form:

"About this agreement

This agreement sets out my availability for work and the things I need to do each week to actively seek work.

I understand looking for work often and in the right way improves my chances of finding work quickly.

I know it will be reviewed regularly and that I or an adviser can ask to change this agreement at any time.

My responsibilities

I know I must do everything I can to

find work

improve my chances of finding work and

overcome things that might be making it harder for me to look for and get a job.

I know I must

actively see work by doing at least ? things a week (emphasis added)

show I have been actively seeking work every week, everytime I attend the Jobcentre

be available for work for the hours I have set out in this agreement

apply for all jobs that Jobcentre Plus tells me to apply for.

I know I may lose my [JSA] if I

do not actively seek work each week

am able to show I have been actively seeking work each week

am not available for work for the hours stated in this agreement

refuse, or fail to apply for, or do not accept a job that I am capable of doing, including one that I have been told about by Jobcentre Plus

do anything that reduces my chances of getting work

do not attend the Jobcentre when asked to do so.

…

My rights

I know if there is any doubt about my benefit claim or disagreement about my jobseeker's agreement, my case may be sent to a decision-maker, which could result in the loss of my [JSA]. If this happens I will be told. If I am not satisfied with the decision I can ask for it to be explained or reconsidered or I can appeal to an independent appeals tribunal.

…"

That form did not materially change over the period the Claimant claimed JSA, although at some stage there was added into the initial rubric as to her understanding:

"Looking for work will be a significant part of my every day activities, taking several hours each day.

43. In the initial agreement, the box in the sentence I have italicised (which I shall refer to as "the actively seeking work steps box") was completed in hand with the figure "3", so it read:

"I know I must… actively seek work by doing at least 3 things a week."

44. The agreement was completed with the addition of (e.g.) the types of job the Claimant was looking for, and her available hours for work. By the side heading, "What I will do to identify and apply for jobs", it said that the Claimant would, each week, write to at least two employers, phone at least one employer, search the jobseekers direct website at least twice and look in each of two local newspapers at least once. She also agreed to keep a written record of her job search activities, and keep in weekly contact with two employment agencies. In that section, she therefore committed herself to doing at least seven things per week.
45. By 2011, the Claimant had been claiming JSA for six years. She was placed on the Work Programme, which she completed on 15 July 2013, still without having found a job.
46. On 28 May 2013 – about six weeks before the end of the Work Programme – her programme provider adviser (Ms Cathy Collins) completed a review of the Claimant's Personal Profile and Employment Plan. In her personal profile, it showed that the Claimant was regarded as having a number of strengths, such as interview skills and educational qualifications – but, in respect of "Job search activities" that was marked as a "Need" with a status of "In progress". In the section, "Is there any other need which impacts on your ability to secure employment?", the adviser said:

"Motivated and able to apply for jobs – has updated cv and good letters to go with it. Applies for around 15 jobs each week. Wants admin – only the length of time since last employment is going against her. Has taken part in supergreen sessions. Lives with husband private rental no children. Has done everything she ahs been asked of in terms of applications and job search had some interviews but no offers yet. Customer has registered with universal job match but has not given dwp to have permission to look at her account. Customer had had several interviews in last few months. Customer feels that her interviews go well but people with more relevant experience get the roles." "

I understand "supergreen sessions" are sessions considered appropriate for those claimants who are "job ready".

47. The Claimant's Work Programme Exit Report (also completed by Ms Collins) indicated that the Claimant was "job ready", and had "Complied with everything whilst on Work Programme"; but the author of the report considered the Claimant was not "Capable of independently job searching using methods relevant in [her] chosen field", i.e. administration.
48. On 1 July 2013, the Claimant was invited to a WPCI on 16 July 2013. The letter said:

"How can the appointment help me?

Now you have completed your time on the Work Programme, your personal adviser will assess the support you will need, based on your needs and skills, to help you find work and stay in suitable work.

What is the appointment about?

The interview is to talk about the steps you are taking to look for and prepare for work and the help you may still need to improve your chances of success. As part of this, your personal adviser will:

talk to you about jobs, training and other ways of helping you back to work;

answer any questions you might have about looking for work;

look at your jobseeker's agreement to see if it is still relevant; and

tell you about the help you may be able to get when you find work.

… "

49. At the 16 July interview and a further interview on 30 July 2013, the adviser discussed the Exit Report and the long-term nature of the Claimant's unemployment. She told the Claimant that, as opposed to once a fortnight previously, she would be required to attend the Jobcentre at least once a week and increasing: she was later told that, after 13 weeks, the required attendance would increase to once a day which could be in the form of a telephone call. The Claimant was also required to sign an updated jobseeker's agreement. This said that she would write to at least two employers a week, and telephone at least two employers a week, as well as taking other steps such as looking at identified websites three time a week. The actively seeking work steps box on the other side of the form was completed with the figure "14", that figure having risen from the previous "3".
50. At the 16 July 2013 interview, the Claimant was told by the adviser that she was being referred to a two-week training scheme called Skills Conditionality, that would consist of "Getting that Job" training, to improve her chances of employment. The Claimant's evidence is that there was no discussion at the meeting as to the appropriateness of that course for her, and the adviser told her that the course was mandatory and that "all Work Programme leavers were being referred to Skills Conditionality training, and that she had no discretion in this matter" (paragraph 11 of the Claimant's statement of 10 September 2013). The Claimant was handed a SC04 letter, largely in standard form, which indicated that the training started on 12 August at 9am and ended on 23 August 2013. The letter confirmed that the Claimant was required to attend the course and, if she did not do so, her JSA would not be paid or would be paid at a reduced rate.
51. The Claimant faxed a complaint to the DWP later that day, saying that Parliament had been told that the SC Scheme was for claimants with an identified skills need, and that advisers would take into account the views of a claimant before putting a that claimant on such a scheme. She asked for identification of her skills need that required addressing. She also complained that a requirement such as this, which exceeded the job search steps required by the 1995 Act, was unlawful.
52. Further correspondence ensued, but none that answered the Claimant's substantive points. At the 30 July 2013 interview, the Claimant signed a new jobseeker's agreement, which included the commitments to which I have already referred, and also, under the heading "Other activities I will do to improve my chances of finding a job":

"I will attend Getting that Job course at TCAT on Monday 12 August at 9am for 2 weeks."

By her signature on the agreement, the Claimant wrote: "Signed under duress".

53. Later that day (30 July 2013), the Claimant sent a pre-action protocol letter.
54. On 1 August, the District Manager of the Staffordshire and Shropshire District Office of the DWP sent the Claimant a letter responding, not to the pre-action letter, but to earlier correspondence. It said:

"… I am sorry that you feel this referral is inappropriate, and I would like to clarify the reasoning behind making the referral as well as the relevant [JSA] regulation which covers Skills Conditionality referrals.

The adviser who spoke to you on 16 July identified that the support offered through the Getting that Job provision will improve your chances of getting employment. In addition it will provide an opportunity for you to identify and address any occupationally related skill needs that may have affected your ability to gain employment during your time on the Work Programme and your period on benefit immediately prior to that. This decision to refer to the provision was based upon the discussion which took place between yourself and the adviser, and that you do not have any recorded work history since 1 July 2005.

Skills Conditionality relates to the process whereby [JSA] claimants who have a skills need which is the main barrier preventing them moving into work are referred to training provision to address that need.

As part of the Skills Conditionality offer a claimant can access provision comprising training or other activity designed to assist them to obtain the skills needed to gain employment, or to help them prepare for or keep work. The type of training and length of course will depend on their individual needs. For a claimant without a recent work history, a referral to Getting that Job provision and subsequent weekly interventions with their adviser is the most appropriate course of action to overcome any specific barriers to employment."

The letter went on to remind the Claimant of the adverse effect on her benefits if she did not attend or participate in the course for which she had been booked.

55. However, on 9 August 2013, the District Manager's Office telephoned the Claimant, saying that, on 16 July, she had been given "the wrong notice" and she did not have to attend the course the following week – although she may be required to attend a similar course in the future. That was confirmed by a letter dated 12 August 2013. In paragraph 49 of her statement of 1 May 2015, Ms Crellin explains:

"Skills Conditionality relies upon an initial assessment to determine whether remedial training is appropriate. If a claimant's lack of skills is obvious, skills screening can be done by the Jobcentre adviser. In Mrs Smith's case, who did not lack relevant skills in other areas, an independent assessment was preferable. Unfortunately, an error by the Jobcentre led to her being referred to a training course without having first attended an initial skills assessment with the training provider."

In other words, the Claimant ought to have been given letter SC02 (notice of mandatory referral to a skills assessment interview with a training provider) rather than the letter SC04 (notice of mandatory referral to start training following an earlier skills assessment) that she had in fact been given (see paragraph 36 above). As a result, the Claimant was not mandated (i.e. required) to attend the Getting that Job course prior to an initial assessment by the provider of the court (Telford College of Arts and Technology ("TCAT")). She could have attended the course voluntarily, but declined to do so, on the basis that she did not consider the course appropriate, necessary or helpful for her.

56. On 13 August, the Treasury Solicitor on behalf of the Secretary of State wrote to the Claimant saying that it was understood that the concerns expressed in the pre-action letter had been addressed, and it was assumed that the Claimant would not be proceeding with a judicial review claim. However, that prompted a further letter before action dated 15 August 2015, in which the Claimant set out grounds of challenge to the SAPOE Regulations, the form of the notice of referral for the SC Scheme and the wider PWPS regime. The Treasury Solicitor responded to the grounds set out in that letter on 4 September.
57. This claim was issued on 24 September 2013. In it the Claimant challenged (i) the decision on 16 July 2013 to refer her to the SC Scheme, and (ii) the PWPS measures introduced by the Secretary of State on 31 May 2013.
58. To complete the chronology, on 15 October 2013, at a further interview with an adviser, the Claimant was told that daily contact with the Jobcentre Plus office was now required, and the Claimant received her first telephone the following afternoon.
59. At the same interview on 15 October, the Claimant was referred by her Jobcentre Plus adviser for an initial skills assessment to determine whether the Getting that Job course was suitable for her. That assessment was conducted by TCAT. The Claimant was required to take a number of tests to assess the level of her language and numeracy skills, and complete a form on which she said that she considered the Getting that Job course inappropriate for her. The Claimant says that the college staff member who conducted the course agreed, and said she would recommend to the Claimant's adviser that she should not be referred to it (paragraph 3 of her statement of 17 November 2013).
60. However, on 12 November 2013, the Claimant attended a further interview at the Jobcentre, and was told that she was considered an appropriate subject for the course and was handed a letter SC04. That said:

"As part of the [SC] Scheme, we have arranged for you to attend Getting that Job training with TCAT.

Your participation in the [SC] Scheme will start on the same date as your training which is detailed below:

You training starts on 18/11/13 at 9.00am.

You should report to [the Main Reception at Telford College].

The training is expected to end on 29/11/13."

The letter then said that participation was mandatory, and set out in some detail the sanctions for non-participation in terms of loss of benefit, detailing both sanctionable failures and periods of loss of benefit.

61. Although she considered the course entirely unsuitable for her, the Claimant duly attended and participated in the Getting that Job course between those dates, she says "under duress" (paragraph 1 of her statement of 1 December 2013). The Claimant considered that the course was "well-structured and taught for its level", but that it was of no benefit to her personally (paragraph 12 of that statement).
62. At a further interview with her adviser on 3 December 2013, the Claimant signed a new jobseeker's agreement with the actively seeking steps box completed with the figure "20" (a further increase from "14"). On the other side of the form, it said that, each week, she would write to at least two and phone at least two employers, and look at each of three websites at least five times, as well as keeping in weekly contact with two employment agencies. By her signature, the Claimant wrote "Under duress and not binding", because she considered that that exceeded the statutorily required level of conditionality by a considerable margin and this was unlawful (paragraphs 2-3 of her statement of 20 April 2014). She was also told that, from four weeks' hence, she would be required to attend the Jobcentre daily.
63. On 19 December, her adviser spoke to her and said that, if she did not sign the jobseeker's agreement without caveat, then it would have to be referred to a decision-maker for adjudication. She did not sign, and the matter was duly referred to the DWP's Decision Making and Appeals Team, for adjudication on behalf of the Secretary of State.
64. The Claimant made representations that she considered the number of steps required was unreasonably high, and unlawful as being higher than that required in the statute. In the meantime, the Claimant's JSA continued uninterrupted: indeed, it was made clear to the Claimant that her JSA would continue unaffected pending the adjudication decision.
65. On 31 December 2013, the decision-maker made the following determination:

"I determine that if Mrs Jane Smith were to comply with the proposed variation of the jobseeker's agreement dated 15.12.2007 she would satisfy the condition that she is actively seeking employment and it would be reasonable to expect Mrs Smith to comply with the terms of the proposed variation of the jobseeker's agreement.

I direct that the jobseeker's agreement should be varied and that the terms of the variation are to be those proposed by Mrs Smith on 15.12.2007."

66. There is evidence that the local office intended to seek a reconsideration of that determination; but that was pre-empted because, on 14 January 2014, with her husband, the Claimant ceased claiming JSA. She has not claimed the benefit since.
67. In the meantime, this claim continued. On 2 December 2013, the Claimant filed amended grounds relying on six grounds, to which the Secretary of State responded on 20 December. However, on 10 December, apparently without having seen the amended grounds, Stewart J refused permission to proceed. On 19 May 2014, at an oral hearing, Foskett J granted permission on three grounds but, in doing so, expressly restricted the grant "solely in relation to the [SC] Scheme…", i.e. he refused permission in respect of the broader challenges to the PWPS measures. The Claimant sought permission to appeal in respect of two aspects of that refusal, and Lewison LJ granted permission on those two grounds on 21 February 2015.

The Grounds of Challenge

68. Following those various applications, the Claimant is left with four grounds of challenge in respect of which she has permission to proceed, which I will deal with in turn, namely:

Ground 1: Regulation 3(7) of the SAPOE Regulations is ultra vires the 1995 Act, in that it provides no prescribed description of the SC Scheme as required by section 17A (see paragraphs 71-77 below).

Ground 2: The SC04 notices of 16 July and 12 November 2013, requiring the Claimant to participate in the SC Scheme by attending the Getting that Job course at TCAT, were unlawful in that they failed to comply with the notice requirements in regulation 5(2) (paragraphs 78-86 below).

Ground 3: The Secretary of State acted unlawfully by compelling the Claimant and other JSA claimants, through jobseeker's agreements and "under the menace of penalty", to exceed the statutory requirements of "actively seeking work" laid down in sections 1(2) and 7 of the 1995 Act and regulation 18 of the JSA Regulations (paragraphs 87-100 below).

Ground 4 (originally Ground 6): The Secretary of State acted unlawfully in failing to provide a published policy and/or description of the PWPS and SC Scheme, thus rendering it impossible for the Claimant and other individuals subject to the measures and/or scheme to make meaningful representations as to the appropriateness of the measures and/or scheme for them (paragraphs 101-108 below).

69. If I might say so, the Claimant (who is acting in person) generally maintained appropriate focus in her skeleton argument and oral submissions before me. However, in a number of respects she did stray outside the legitimate boundaries of the permission she had obtained; and, at times, approached the claim more in terms of a general enquiry into how the PWPS regime is implemented, rather than how any unlawfulness on the part of the Secretary of State has affected her rights and interests. I have generally restricted this judgment to the issues that this court is properly required to determine in respect of the grounds of challenge upon which the Claimant has permission to proceed.
70. However, the Claimant raised two particular issues which, although neither appears to be in the scope of the permission to proceed which has been granted, I will consider briefly after I have dealt with the formal grounds of challenge, namely:

i) The Secretary of State acted unlawfully (and misused public funds) by compelling her and other JSA claimants, "under the menace of a penalty", to participate in the SC Scheme without consideration of her/their individual circumstances including skills needs, which resulted in her and other claimants attending the course without any benefit or potential benefit.

ii) The PWPS measures are unlawful because they are not authorised by the SAPOE Regulations or any other statutorily based authority.

I deal with those issues in paragraphs 109-115 below.

Ground 1: Ultra Vires

71. Section 17A(1) authorises the Secretary of State to make regulations:

"… imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment."

72. For the purposes of that provision, regulation 3(1) and (7) of the JSA Regulations prescribe the SC Scheme with the following description:

"Skills Conditionality is a scheme comprising training or other activity designed to assist a claimant to obtain skills needed to obtain employment."

73. The Claimant submits that (i) the scheme is not described in terms of "work or work-related activity" (and so this case is distinguishable from Smith): and (ii) "training or other activity" is so vague as to be meaningless: "It literally means anybody could be made to do anything, for any reason" (paragraph 12 of the Claimant's skeleton argument). Consequently, the description used – just as the description of the ESE Scheme in the ESES Regulations was found to be in Reilly – amounts to no description at all. I am therefore bound by Reilly to find regulation 3(7) ultra vires.
74. However, regulation 3(7), whilst short and succinct, clearly contains some elements of description of the SC Scheme over and above section 17A(1), namely the scheme must comprise "training or other activity designed to assist [the] claimant to obtain skills needed to obtain employment". Therefore, this case is distinguishable from Reilly, in which the description on the regulations did not add anything to the primary statute and, in effect, there was no description of the scheme at all. The question here – as in Smith – is whether the description in regulation 3(7) constitutes a sufficient description to satisfy the requirements of section 17A(1).
75. In my judgment, the description is sufficient. In coming to that conclusion, I have taken into account particularly the following.

i) I respectfully agree with Underhill LJ, in Smith (CA) at [24], that the reasoning in Reilly is generally of limited value in determining the necessary degree of detail to constitute a sufficient description for the purposes of section 17A(1) – because the court in that case did not have to consider that issue, there being no description at all. Indeed, the Supreme Court in Reilly (at [49]) expressly disavowed any intention of giving any view as to the lawfulness of the schemes listed in regulation 3 of the SAPOE Regulations. I do not accept Mr Sharland's submission that the Supreme Court's reference to the SAPOE Regulation descriptions supports his submissions in this respect.

ii) However, both the Court of Appeal and Supreme Court in Reilly emphasised the importance of flexibility in description parameters, to enable the Secretary of State to provide assistance tailored to a claimant's individual needs and circumstances. That theme was taken up and helpfully developed by Underhill LJ in Smith (CA), where he made clear that, in his view, that need for flexibility was reflected in the limited requirement for there to be a "prescribed description" which (he said) "connote[s] no more than an indication of the character of the scheme provided for…" (Smith (CA) at [25]). As I stressed in Smith (Admin Ct) at [26(ii)], section 17A(1) refers to "schemes of any prescribed description" (emphasis added); and "prescribed" is defined in terms "specified in or determined in accordance with regulations" (emphasis added). Both imply that, although there must be some description over and above that found in the primary legislation, the legislation gives the Secretary of State considerable discretion in respect of the description of schemes set up in regulations; and he is able to describe a scheme in quite general terms leaving greater detail (particularly as to the application of the scheme to an individual JSA claimant) to other parts of the statutory scheme such as arrangements made under section 17B. That is entirely different from relying upon section 17B arrangements (and other things outside the prescribed description in the regulations) to constitute a sufficient description which, as Reilly makes clear, section 17A does not allow.

iii) In the evidence of Ms Crellin which I have quoted (see paragraph 36 above), she explains how Skills Conditionality requires assessment of an individual claimant's skills need, which the SC Scheme is designed to address. I accept that some of her general evidence is not directly applicable to the particular PWPS regime operated by the Claimant's local Jobcentre in Telford. However, that does not mean that that regime is unlawful. It is not true to say that attendance at and participation in the Getting that Job course is mandatory for all Telford Work Programme leavers. Those who have recent employment experience – I accept, probably very few of this cohort – are the subject of a different regime. All others are entered into the SC Scheme, but not all are required to go to the same course(s). Only those who are assessed as having a particular numeracy and/or literacy skill deficit are sent to numeracy/literacy training. Those who do not have that deficit, but are young people, are required to take part in a course designed for youths. Otherwise, adults are required to attend the Getting that Job course. As I understand it, this course has been designed to assist the long-term unemployed – and thus long-term JSA claimants – who have the necessary hard skills (numeracy/literacy) but are likely to lack some of the soft skills through lack of confidence and lack of recent employment experience. Ms Crellin confirms the self-evident point that employers value soft skills (see paragraph 8 of her statement).

iv) The Claimant emphasised the breadth of activity covered by the regulation 3(7) description – "training or other activity" – which, looked at discretely, would cover any and all activity. That, submitted the Claimant, means that the description is so wide as to be meaningless. But, in my judgment, properly to construe it, the description has to be looked at as a whole. I do not accept the Claimants contention that the reference to the activity alone – in a vacuum, as it were – must be adequately prescribed. The phrase "training or other activity" is governed by the following phrase, "designed to assist [the] claimant to obtain skills needed to obtain employment". All of the activities must therefore be aimed at assisting the claimant to obtain skills he needs to obtain employment. The Claimant's submission that the description could encompass any activity "for any reason" is therefore patently incorrect: the activity must be designed to assist the claimant to obtain skills needed to obtain employment. When the description is considered as a whole, it is clear that all of the activity referred to is a "work-related activity". As Reilly and Smith emphasise, a description is not uncertain merely because it is broad; but, again when regulation 3(7) is looked at as a whole, broad as it is, the description is narrower than "work or work-related activity".

v) This description does not contravene the principle of legal certainty for the same reason that the MWA Scheme did not do so in Smith. In this case, the Claimant (and others who are required to participate in the SC Scheme) will know with specificity precisely what is being required of them in the mandatory regulation 5(2) notice. Such claimants will know whether what they are being required to do falls within the scope of regulation 3(7), i.e. if it is training or other activity designed to assist the claimant to obtain skills needed to obtain employment.

vi) The Claimant submitted that the description in regulation 3(7) was insufficient because it does not require a claimant who is required to participate in the scheme to have an identified specific skill need. However, I do not consider there is any force in that submission. The activity comprising the scheme must be "designed to assist a claimant to obtain skills needed to obtain employment", and that necessarily presupposes that the particular claimant has a skills need in respect of which the activity is designed to assist him obtain. Whilst, again, there is a need for flexibility – and appreciation that these provisions have to be applied in the real world – that necessarily requires the skills need to be identified, even if only in a broad way.

vii) I draw some comfort (albeit, I accept, faint) from the fact that the SAPOE Regulations were the subject of the negative Parliamentary procedure; and were therefore laid before Parliament (albeit for only half an hour) before they came into force.

76. For those reasons, I consider regulation 3(7) of the SAPOE Regulations provides a sufficiently prescribed description of the SC Scheme for the purposes of section 17A(1); and thus the regulation is intra vires.
77. Ground 1 therefore fails.

Ground 2: The Notice of Referral

78. I have already set out the text of regulation 5 of the SAPOE Regulations (see paragraph 23 above): a claimant is only required to participate in a scheme where a valid notice has been served on him. To be valid, that notice must specify those matters identified in regulation 5(2) including, "(c) details of what the claimant is required to do by way of participation in the Scheme". The Claimant submits that the various notices served on her merely required her to report to reception or report to a specified individual. Participation in the SC Scheme clearly involved more than that; but the notices did not provide the required details.
79. However, I am again unpersuaded. Although each of the notices is in similar form (i.e. letter SC04), the effective notice was that of 12 November 2013. As I have described (see paragraph 60 above), that notice indicated that the Claimant was required to go to the Getting that Job training course at TCAT, beginning on 18 November 2013 at 9am and ending on 29 November 2013. At the start of the course, she was required to report to a named individual at the Main Reception at TCAT. On its face, that notice made entirely clear what the Claimant had to do.
80. During the course of debate, the Claimant's submissions on this ground narrowed to a single, short point. She submitted that the notice was defective because it was obliged to have the hours of required attendance in it, and it did not. She relied upon Reilly (SC) at [44] in which Lords Neuberger and Toulson, in dealing with the notice requirements of regulation 4(2)(c) of the MWAS Regulations (which were in identical terms to regulation 5(2)(c) of the SAPOE Regulations) in relation to the claimant Mr Wilson, said:

"In our opinion, there was a failure to comply with regulation 4(2)(c). The [relevant letter] merely informed Mr Wilson that he had to perform 'any activities' requested of him by [the work provider', without giving him any idea of the likely nature of the tasks, the hours of work, or the place or places of work. It seems to us, therefore, that the letter failed to give Mr Wilson 'details of what [he was] required to do by way of participation'." (emphasis added)

81. However, the SAPOE Regulations do not expressly require hours of participation to be set out in the notice: regulation 5(2)(c) merely requires "details of what the claimant is required to do by way of participation in the Scheme". Where, as in Reilly, the relevant scheme involved work in the form of activities as requested by the work provider, without time or place identified, it is understandable that the Supreme Court had no difficulty in finding the notice inadequate. But that does not mean that a notice is inevitably bad if it does not contain details of required hours of attendance, irrespective of the scheme involved and the circumstances of the case. The extreme facts of Reilly, and the need for flexibility, was emphasised in [44] of the judgment in Reilly (SC), immediately following the passage upon which the Claimant relied:

"Again, it is necessary to balance practicality, in the form of the need for the Secretary of State and his agents for flexibility, against the need to comply with the statutory requirement, which was plainly included to ensure that the recipient of any such letter should have some idea where he or she stood. A requirement as general and unspecific as one which stipulates that the recipient must 'complete any activities that [the work provider] asks you to do', coupled with the information that the course will last about six months falls some way short of what is required by the words of regulation 4(2)(c), even bearing in mind the need for practicality."

82. In the Claimant's case, the required participation was in respect of a specific course at a specific college. The daily times were, of course, fixed. The Claimant was required to attend at 9am on the first day, and was informed, in the notice, that the course would last 11 days. There was no uncertainty here: in practical terms, from the face of the notice, the Claimant knew exactly what was required of her.
83. In any event, although I consider the notice on its face was sufficient, as Mr Sharland submitted, the notice cannot be viewed in a vacuum: in assessing the adequacy of the notice, the surrounding circumstances are of course a material factor. In this case, the SC Scheme requirement was limited to attending and participating in a specific course over an 11-day period. The nature and content of the course had been explained to the Claimant both in Jobcentre interviews and in the 1 August 2013 letter from the DWP (quoted at paragraph 54 above). The notice was given to the Claimant at the 12 November 2013 interview by an adviser, from whom the Claimant could have sought further information or clarification, if she had considered it necessary. As the chronology makes clear, the Claimant well-knew what the course entailed, to the extent that she was able to come to her own firm judgment as to its appropriateness for her.
84. In fact, with regard to the course hours which became the focus of her submissions on this ground, the Claimant frankly accepts that she asked about the hours of the course and, although not in the notice, she was told at the interview that they were 9am to 4.30pm. In respect of the Claimant's main submission on this ground, this evidence robs it of any merit.
85. Although not pursued with vigour at the hearing, in her skeleton argument the Claimant specifically complains that the notice did not identify the specific regulations that provide for the amount and period of sanction in the event of non-compliance; but regulation 5(2) does not require that. Regulation 5(2)(e) requires the notice to provide "information about the consequences of failing to participate in the scheme" – which the notice clearly did (see paragraph 60 above).
86. For those reasons, this ground fails.

Ground 3: Unlawful Compulsion in respect of Conditionality Requirement

87. The Claimant submitted that the Secretary of State acted unlawfully by compelling her, and other JSA claimants, through jobseeker's agreements and "under the menace of penalty", to exceed the statutory requirements of "actively seeking work" laid down in sections 1(2)(c) and 7 of the 1995 Act and regulation 18 of the JSA Regulations.
88. In her own case, the Claimant contends that the unlawfulness primarily comprised the Jobcentre adviser, on two occasions (July and December 2013), proposing a jobseeker's agreement committing the Claimant to take more than three steps in search of work; but also in threats of sanction made by the adviser if the Claimant failed to sign the agreement as proposed, and/or failed thereafter to satisfy the commitment to the number of steps in the agreement.
89. To recap on the relevant statutory provisions, by section 1(2)(c), a claimant is only entitled to JSA if he is "actively seeking employment". "Actively seeking employment" is defined in section 7(1), thus:

"For the purposes of this Act, a person is actively seeking employment in any week if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment."

Regulation 18(1) of the JSA Regulations provides:

"For the purposes of section 7(1) (actively seeking employment) a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week."

90. On the basis of these provisions, the Claimant submitted that, in requiring more than three steps in any week as a jobseeker's agreement commitment from her (and other claimants), the Secretary of State acted unlawfully, because the conditionality test for actively seeking work (which, she contends, such an agreement seeks to satisfy) was restricted to three steps per week. She submitted that, on a true construction of the statutory provisions, a jobseeker's agreement could not go beyond the "actively seeking employment" parameters in section 7 and regulation 18 of the JSA Regulations.
91. In support of that proposition, the Claimant relied upon the decision of Social Security Commissioner Williams of 13 September 2007 in Case No CJSA/1814/2007. That appeal concerned a JSA claimant who objected to the Secretary of State's decision that he was not actively seeking employment for a one week period, because he failed to comply with his jobseeker's agreement that required him to write to at least one employer per week, phone at least two employers, and contact Jobcentre Plus Direct, as well as other steps. He also had to record at least three steps on the back of the form.
92. The appeal was not contested by the Secretary of State, and therefore it is necessarily of limited weight. However, in allowing the appeal, Commissioner Williams did say that regulation 18 of the JSA Regulations "is the benchmark for judging the reasonableness of the claimant's actions" (paragraph 11). He continued (at paragraph 13):

"13. … [T]here is nothing in the Act or Regulations requiring that a claimant must comply with everything in the [jobseeker's] agreement. The reverse is the case. The agreement must comply with the law. To be valid, a jobseeker's agreement must comply 'with the prescribed regulations in force': section 9(1) of the Act. The pattern of the legislation is that a jobseeker's agreement must comply with the test of actively seeking work in sections 1(2)(c) and 7 of the Act and regulation 18 of the regulations and not the other way round.

14. That is illustrated by this appeal. [The appellant] was required by his agreement to take six steps each week and several other steps from time to time. That is clearly more steps than the regulation requires of him to meet the test of 'actively seeking work'. And it is more steps than the agreement asked him to record. On the facts, the Secretary of State's representative now accepts that [the appellant] took four steps in the week and that those steps met the test in section 7(1).

15. The questions to be asked where it is alleged that someone is not actively seeking work are those following from section 7(1) and regulation 18(1), not from the agreement. They pose three questions, to be answered by the claimant's actions that week:

(a) Should the claimant be expected to take at least three jobsearch steps that week, or is it reasonable that only one or two be taken?

(b) What steps were taken?

(c) In the light of that reasonable expectation and those findings, were the steps taken by the claimant 'such steps as he can reasonably be expected to have take in order to have the best prospects of securing employment? (section 7(1))

If the steps taken by the claimant meet that test, it is irrelevant that the claimant did not also take some other step, whether or not it is in the jobseeker's agreement".

93. For reasons to which I shall shortly come, on the facts of this case, even if the interpretation of the statutory provisions pressed by the Claimant were true, I would still not conclude that this ground is made good; but, in any event, I do not consider that that construction is correct.
94. Entering into a jobseeker's agreement may, of course, assist in identifying what a claimant needs to do to demonstrate that he is actively seeking work – because, if he agrees that he must actively seek work by doing something specific (e.g. by doing at least X things a week), it will be difficult for him to say that he is actively seeking work if, without good reason, he does not do what is identified. However, I do not agree with the Claimant's proposition that the only purpose of a jobseeker's agreement is to scope actively seeking work. As Mr Sharland emphasised, actively seeking employment and entering into a jobseeker's agreement are discrete conditions of JSA entitlement, expressed in section 1(2)(c) and (b) respectively. Thus, section 9(6) (quoted at paragraph 8 above) is based on the premise that, in particular circumstances, the available for employment condition of section 1(2)(a) may be satisfied when the jobseeker's agreement condition of section 1(2)(c) is not, and vice versa; and that it might be reasonable to expect a claimant to have to comply with a proposed jobseeker's agreement irrespective of whether it would satisfy the available for employment condition. Section 9(2) makes clear that a jobseeker's agreement only has effect for the purposes of section 1; if commitments in the agreement are not fulfilled, that is not a sanctionable failure; and, in pursuit of the mutually beneficial activity of encouraging JSA claimants to obtain employment, having a claimant entering into soft commitments that are not (or may not be) legally enforceable is understandable and certainly not irrational. The Claimant herself accepts that not all jobseeker's agreement commitments are enforceable; because, whilst she contends that the actively seeking work steps box cannot contain a number larger than three, she concedes that other parts of the agreement may refer to commitments which, if added up, amount to more than three steps.
95. Nor, despite the deference to specialist tribunals which this court rightly observes, am I able to agree with Commissioner Williams' analysis of the relevant regulatory provisions, notably regulation 18 of the JSA Regulations. His interpretation is based on the premise that, in that regulation (quoted at paragraph 89 above), "more than two" means "three and no more than three"; which, as the Claimant conceded before me, is not right as a matter of either grammar or mathematics. If the draftsman of the regulation had intended to say that, for the purposes of actively seeking employment, a person shall be expected to have to take three steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week, then he could – and, I have no doubt, would – have said so. The obvious meaning of regulation 18 is that it sets a presumptive norm for the minimum number of steps that any claimant might be required to do to demonstrate that he is actively seeking work; but the number of steps above two that will be reasonable in a particular case will necessarily depend upon the circumstances of that case. Section 7(1) leaves what might be reasonable entirely open; and I am satisfied that, properly construed, the Secretary of State did not restrict the number of steps that a claimant could reasonably be expected to take to three.
96. Consequently, in my view, on the true construction of regulation 18, a claimant may reasonably be expected to take more than three steps per week to demonstrate compliance with the actively seeking work condition in section 1(2)(c); and, subject to the adjudication appeals process, the adviser in the Claimant's case was entitled to propose a figure of fourteen or twenty in the actively seeking work steps box on her jobseeker's agreement.
97. However, as I have indicated, even if, contrary to my firm view, my construction of regulation 18 is wrong – and a jobseeker's agreement cannot lawfully require a claimant to undertake more than three steps per week – I do not consider that the Secretary of State acted unlawfully and, if he did, then any error on his part was immaterial. I draw that conclusion for the following reasons.

i) The regime does not allow for sanctions to be imposed on a claimant simply because he does not perform a commitment as set out in his jobseeker's agreement. Furthermore, simply because a claimant does not comply with his jobseeker's agreement, that does not mean that he is not actively seeking work or in breach of section 1(2)(c); and, in the Claimant's case, she could not be sanctioned for not having a jobseeker's agreement, because she did have such an agreement signed years previously. Whatever she was told, the Claimant could not be sanctioned for either not signing the new proposed jobseeker's agreement or, per se, for failing to comply with a commitment in any agreement she did sign.

ii) However, as I have described, failing to meet a commitment in a jobseeker's agreement can indirectly lead to a sanction. As Mr Sharland accepted, on the basis of the jobseeker's form in use, the only potentially sanctionable failure that could arise from a failure to meet a commitment in the agreement, was in respect of the commitment to "actively seek work by doing at least [X] things a week" – because, although a failure to carry out commitments in a jobseeker's agreement is not of itself sanctionable, that is an acceptance by a claimant that it is reasonable to expect him perform X steps per week to demonstrate that he is actively seeking work; and actively seeking work is a condition of entitlement to JSA.

iii) Although she was not actually at risk of sanction, I am concerned by the compelling evidence from the Claimant that she was nevertheless threatened with sanctions (i.e. a reduction in her JSA) if she did not sign the jobseeker's agreements that were put before her by the Jobcentre adviser with the actively seeking steps box completed with "14", and later "20", steps; or, having signed, she failed to meet that commitment. I accept that evidence.

iv) However, on the facts of this case, that concern is alleviated by a number of matters. The Claimant was never in fact sanctioned. Whilst I am sensitively aware that even threat of discontinuance of JSA may cause significant suffering or misery in a particular case (see Reilly (SC) at [64]), the Claimant accepts that from 2005 until July 2013, she was under no threat: her jobseeker's agreement was lawful, in setting the actively seeking work steps figure at three. As Mr Sharland emphasised, of the December 2013 twenty actively seeking work steps figure, fifteen of the steps per week comprised checking websites – which would only have taken a matter of minutes: the requirements were not, in practice, onerous. The Claimant accepts that she voluntarily took at least twenty relevant steps per week; and there was consequently no or very limited potency in any sanction threat if less than fourteen or twenty steps were taken. There is no evidence that the Claimant was unduly anxious about the threat of sanction. The Claimant ceased to claim JSA in January 2014: the challenge to the jobseeker's agreement thereafter became academic.

v) Furthermore, the Claimant already had a jobseeker's agreement (with the number of steps in the actively seeking steps box as "3"). If the Jobcentre adviser wished to increase that number and the Claimant considered that the proposed jobseeker's agreement was unreasonable in its requirements – as she clearly did in July and December 2013 – then she had the right to refer the matter to a decision-maker on behalf of the Secretary of State for adjudication (as eventually happened). In this case, given that it was clear that the Claimant did not in fact agree to the terms of the agreement that she was signing then, as Mr Sharland frankly conceded, it would no doubt have been better if the matter had been referred earlier that it was. However, although I accept that the form of the jobseeker's agreement does not offer any encouragement to a claimant to make a referral – indeed, it is positively discouraging – the Claimant had a right to refer any disputed term and the form of agreement made clear, as it was required to do, that the Claimant had such right.

vi) In relation to the possible unlawful acts identified by the Claimant, this right is crucial. It gave the Claimant a remedy for any actual or perceived wrong in relation to proposed new terms of jobseeker's agreements that were put to her. It robbed the threat of sanction for not signing the new proposed terms of any force. The right to an adjudication decision on the terms of a jobseeker's agreement applies whatever the nature of the claimant's ground of dispute, including the ground that the agreement as proposed is unlawful as contravening the terms of the statutory scheme. Indeed, that was one of the grounds relied upon by the Claimant in the adjudication in this case.

vii) When the matter was eventually referred; and the Claimant was successful in that adjudication. The jobseeker's agreement was thus to be written – with retrospective effect – upon the terms that the Claimant wished.

98. To summarise, insofar as any of the acts identified under this ground were indeed unlawful, although I understand that mere threats of JSA sanction may in a particular case be distressing, there is no evidence that, in this case, the Claimant was in fact caused any significant level of suffering or misery. But, in any event, insofar as there was any unlawfulness, there was an alternative remedy open to the Claimant, namely a referral to a decision-maker for adjudication. That was indicated in the agreement itself. Indeed, we now know that that adjudication would have resulted in a determination that the jobseeker's agreement should stay in the form previously agreed by the Claimant, with the number in the actively pursuing work steps box as "3". That appears to be a complete answer to the claim based on the identified acts by the agents of the Secretary of State, if and insofar as those acts were unlawful.
99. For those reasons, if and insofar as the Secretary of State acted unlawfully as claimed, I would not in any event be minded to grant any relief to the Claimant, even in terms of a declaration.
100. Consequently, this ground also fails.

Ground 4: Failure to Publish Policy or Description of PWPS Measures

101. The Claimant submitted that the Secretary of State acted unlawfully in failing to provide a published policy and/or description of the PWPS and/or SC Scheme, thus rendering it impossible for the Claimant and other individuals subject to the measures and/or scheme to make meaningful representations as to the appropriateness of the measures and/or scheme for them.
102. Again, this ground is founded upon comments, made obiter, in Reilly (SC). At [65], Lords Neuberger and Toulson said:

"Fairness therefore requires that a claimant should have access to such information about the scheme as he or she may need to make informed and meaningful representations to the decision-maker before a decision is made. Such claimants are likely to vary considerably in their levels of education and ability to express themselves in an interview at a Jobcentre at a time when they may be under considerable stress. The principle does not depend on the categorisation of Secretary of State's decision to introduce a particular scheme under statutory powers as a policy: it arises as a matter of fairness from the Secretary of State's proposal to invoke a statutory power in a way which will or may involve a requirement to perform work and which may have serious consequences on a claimant's ability to meet his or her living needs."

103. However, again, that passage cannot be looked at in isolation. At [74] in the same judgment, with reference back to [65], it is said:

"For the reasons already explained, the Secretary of State owed a duty as a matter of fairness to see that [the claimants] were respectively provided with sufficient information about the [relevant schemes], in order for them to be able to make informed and meaningful representations to the decision-maker before a notice requiring their participation was served on them. However, it would be wrong to be prescriptive as to how that information should be given. It is a proper matter for a court to determine whether, and if so what, information is required to be communicated by the government, and whether a particular means of communication satisfied that requirement. However, it should not, absent unusual circumstances, be for the court to prescribe a specific means of communication. In this case, it would involve the court going too far if it was to rule that descriptions of the schemes must, as a matter of law, be published to the world at large. The desirability of publication in the manner prescribed in [65] above is obvious, but practical desirability does not equate to legal requirement…".

104. Whether there has been unfairness is always a fact-specific question. In my judgment, this ground founders on the facts of this case.
105. The main PWPS measure to which the Claimant was subject was the SC Scheme, which required her to attend and participate in the Getting that Job course. The Secretary of State has a wide discretion in requiring JSA claimant to participate in described schemes: the question here is whether the Secretary of State acted unlawfully by not informing the Claimant of the course in such detail and at such a time that it led to her suffering prejudice and unfairness because she had no opportunity to make representations on the appropriateness of her participating in that course.
106. I deal with the mandatory nature of the Claimant's participation in that course below (see paragraphs 110-112). The Claimant fell within a category of long-term JSA claimants for whom participation in that course was a requirement. However:

i) As I have described, prior to the 12 November 2013 referral, the Claimant was well-aware of the course that she was required to participate in; and, if she had not been, she had more than adequate opportunity to request further particulars of it. She was not only aware of the nature of the Getting that Job course, she made informed representations about the appropriateness of it. She did not consider it was appropriate for her to attend that course, and made that clear. Those representations were made prior to the 12 November 2013 referral notice. They resulted in an appraisal to ensure that another type of course – to remedy defects in numeracy/literacy – was not more appropriate for her.

ii) Even if (at least hypothetically) there might have been some claimants who had no skills need that might be addressed by participation in the Getting that Job course, the Claimant had had need identified in both her last review and her Exit Report in relation to the capability of independently job searching using methods relevant in her chosen field (see paragraphs 46-47 above), that would or might be addressed by the course.

107. In respect of the other PWPS measures, the Claimant does not have permission to pursue a challenge on this ground in respect of them. However, the Secretary of State had specific statutory powers in relation to each of the other PWPS measures about which the Claimant complains, with which I deal below (paragraphs 113-115). In respect of each of the matters, the Claimant was made well aware of the requirements being imposed upon her, and in advance. The Secretary of State was under no legal obligation to publish the measures in public form.
108. For those reasons, the Secretary of State did not arguably act unlawfully by failing to publish a policy or description of PWPS Measures. This last ground also thus fails.

Two Final Issues

109. In addition to the grounds for which she had permission to proceed, the Claimant raised two further issues, with which I shall briefly deal.
110. First, the Claimant submitted that the Secretary of State acted unlawfully (and misused public funds) by compelling her and other JSA claimants, "under the menace of a penalty", to participate in the SC Scheme without consideration of her/their individual circumstances including skills needs, which resulted in her and other claimants attending the course without any benefit or potential benefit.
111. However, it seems to me that there is nothing wrong or unlawful in the Secretary of State requiring those who have failed to gain employment after participating in a two-year Work Programme then to participate in an intensive course focused on soft skills, nor in the assumption that claimants in that cohort will all obtain some benefit – no doubt, to differing degrees – from such a course. It is of course not necessary for every participant to benefit from every part of the course.
112. In any event, in the Claimant's case – although I accept that she was put onto the course because of the assumption, and not because of a detailed consideration of her individual needs (except to the extent that her numeracy and literacy skills were assessed, and she was found not to have specific needs in this areas) – she had in fact been identified, in both her last review and her Exit Report, as someone who had a skill need in respect of the capability of independently job searching using methods relevant in her chosen field (see paragraphs 46-47 above), that would or might be addressed by the course. I understand that the Claimant does not agree with that assessment; but it was made by an experienced Work Programme provider, and is sufficient legal justification for requiring her to participate in the Getting that Job course.
113. Second, she submitted that the PWPS measures are unlawful because they are not authorised by the SAPOE Regulations or any other statutorily based authority.
114. However, this is to misunderstand the nature of the regime. The PWPS measures are not a discrete statutory scheme: they are a set of intensive measures, applied to those who come out of the Work Programme still job-less, the powers for which are derived from various parts of the statutory scheme. In paragraph 3 of her skeleton argument, the Claimant identified five PWPS measures, all mandatory, as follows:

i) Referral to one of three types of scheme: enabled by the SAPOE Regulations.

ii) Increase in the number of steps contained in jobseeker's agreement: subject to the issues concerning constraint by regulation 18 of the JSA Regulations (with which I have already dealt), enabled by section 9.

iii) Registration and use of the claimant's Universal Jobmatch website: enabled by the jobseeker's direction provisions, including section 19A(2)(e) and (11).

iv) Increased attendance and contact: enabled by regulations 23 and 24 of the JSA Regulations.

v) All measures to be enforced by sanctions: enabled by sections 19 and 19A and regulations made thereunder.

115. Each of the measures is therefore authorised by disparate provisions within the statutory regime. The fact that there is not one source of enabling power does not, of course, affect the lawfulness of the regime as a whole.

Conclusion

116. For those reasons, this claim, in each of its grounds, fails; and I shall direct judgment be entered for the Defendant.