Upper Tribunal (Administrative Appeals Chamber)
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Cite as: [2015] UKUT 56 (AAC)
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IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER |
Appeal Nos: CJSA/1266/2013 CJSA/2431/2013 CJSA/2542/2013 |
Before: Mr Justice Charles
Upper Tribunal Judge Rowland
Upper Tribunal Judge Wright
DECISIONS
The Upper Tribunal dismisses the appeals of the Secretary of State against the decisions of the First-tier Tribunal sitting at Sutton on 6 November 2012 under reference SC131/12/00950 and at Chesterfield on 14 December under reference SC034/12/04292.
The appellant’s appeal against the decision of the First-tier Tribunal sitting at Newcastle-upon-Tyne on 17 December 2012 under reference SC227/12/04831 is allowed and the decision of the First-tier Tribunal set aside. The Upper Tribunal gives the decision the First-tier Tribunal ought to have made and sets aside the Secretary of State’s decision of 7 June 2012. In consequence, jobseeker’s allowance remains payable to the appellant from 12 June 2012 to 10 December 2012.
Representation: James Eadie QC and Zoe Leventhal for the Secretary of State
Tristan Jones (instructed by FRU) for TJ
Tom Richards (instructed by CPAG) for DB
TG neither appeared nor was represented
REASONS FOR DECISIONS
Index
Sub-heading Paragraph numbers
Introduction 1-12
Summary of decisions 13
Relevant legislation 14-22
Reilly and Wilson and Reilly No.2. 23-42
The “work for your benefit schemes” 43-55
Factual background
SSWP -v- TJ 56-62
DB –v- SSWP 63-67
SSWP –v- TG 68-74
Legal issues 75-76
Majority decision
First issue - Retrospective extent of 2013 Act 77-98
Second issue - Section 12(8)(b) Social Security Act 1998 99-117
Third issue - Section 3 Human Rights Act 1998 118-126
Minority decision on first to third issues 127-172
Unanimous decision on all other issues
Fourth
issue – Section 12(2) Tribunal, Courts and 173-175
Fifth issue - Regulation 4 notices 176-220
Sixth issue - Prior information requirement 221-254
Seventh issue – “Good cause” under regulation 7 255-268
Conclusion 269-270
Grant of permission to appeal to Court of Appeal 271
Introduction
1. These three appeals are concerned with a number of important issues which arise out of the litigation concerning a Ms Reilly and a Mr Wilson that ended with the Supreme Court’s decision in R(Reilly and Wilson) –v- Secretary of State for Work and Pensions [2013] UKSC 68; [2014] AC 453 (“Reilly and Wilson”).
2. In very broad terms at this stage, the litigation in Reilly and Wilson concerned the lawfulness of programmes under the Employment, Skills and Enterprise Scheme, or “work for your benefit schemes”, that applied to people claiming jobseeker’s allowance (“JSA”). Regulations purportedly made under section 17A of the Jobseekers Act 1995 – the Jobseeker’s Allowance (Employment, Skills and Enterprise Schemes) Regulations 2011 (SI 2011/917) (“the 2011 Regs”) – provided, inter alia, by regulation 4 that where a JSA claimant had been selected to participate in one of the schemes he had to be provided with a notice specifying certain matters. If a claimant without good cause did not participate in a scheme he had lawfully been required to participate in, JSA would not be payable to him (i.e. would be sanctioned) for a period of time of 2, 4 or 26 weeks.
3. The High Court held in Reilly and Wilson that the standard form notices used by the Secretary of State did not comply with the requirements of regulation 4 and were invalid. As a result there was no lawful basis for the sanctions imposed on Ms Reilly and Mr Wilson (they not having lawfully been required to participate in any schemes). On appeal, the Court of Appeal went further and held that the whole of the 2011 Regs were ultra vires the Jobseekers Act 1995; that is, they had not been properly made under section 17A of that Act.
4. The Supreme Court in Reilly and Wilson, in effect, upheld the Court of Appeal’s decision on the 2011 Regs being ultra vires, and it also varied the basis on which the notices failed to meet regulation 4 of the 2011 Regs (if those regulations had been made properly). It also held that the Secretary of State had failed to provide Ms Reilly and Mr Wilson with “adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required”, and this would have provided an alternative basis for finding the notice served on Mr Wilson as being legally ineffective were it not for the whole of the 2011 Regs being ultras vires (or the terms of regulation 4 not having been met by that notice if that regulation had been found not to be ultra vires its parent Act).
5. However, in the intervening period between the Court of Appeal’s judgment on 12 February 2013 and the Supreme Court’s decision on 30 October 2013, the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013/276), (referred to as the “2013 Regulations” by us and in the 2013 Act) had replaced the 2011 Regs (on the day of the Court of Appeal’s judgment). More importantly for the purposes of these appeals, Parliament had passed the Jobseekers (Back to Work Schemes) Act 2013 (“the 2013 Act”). At this stage we do no more than set out, without comment, the Supreme Court’s description at paragraph [36] of the 2013 Act as “plainly intended to “undo” the decision of the Court of Appeal, in that ….it retrospectively validates (i) the 2011 Regulations, (ii) the programmes listed in regulation 3(2) of the 2013 Regulations, (iii) notices issued under regulation 4 of the 2011 Regulations, and (iv) the benefit sanctions imposed under those Regulations in relation to the schemes”.
6. Given the way in which the arguments have developed before us, especially at the hearing, the first issue before us is whether the 2013 Act affects appeals that had already been brought before the First-tier Tribunal. We are divided on this issue.
7. All of the appeals before us concern claimants where the sanction decisions were made well before the 2013 Act had come into effect. Moreover, two of the claimants had won their appeals before the First-tier Tribunal against the sanction decisions on the basis of the binding authority of the High Court in Reilly and Wilson. In deciding all three appeals the First-tier Tribunal was prohibited from taking into account “any circumstances not obtaining at the time the decision appealed against was made”: per section 12(8)(b) of the Social Security Act 1998 (“SSA 1998”).
8. The second issue we have to address is how the 2013 Act fits with section 12(8)(b) of the SSA 1998 given the 2013 Act was not in existence at the time of the decisions under appeal to the First-tier Tribunal. We are agreed on this issue but our reasoning does not fully overlap.
9. Further, as the Supreme Court noted when describing the 2013 Act, the 2013 Act was the subject of a judicial review challenge in the High Court on the ground that it breached certain claimants’ rights under Article 6(1) of the European Convention on Human Rights (“the Convention”). That challenge – R(Reilly (No.2) and Hewstone –v- SSWP [2014] EWHC 2182 (Admin) (“Reilly No.2”) - found that the 2013 Act did breach Article 6(1) of the Convention in respect of claimants who had appealed adverse sanctions decisions before the 2013 Act was on the statute book. However, the court held that the only remedy that could be afforded under the Human Rights Act 1998 (“the HRA”) was a declaration of incompatibility in respect of the 2013 Act. In addressing the first two issues, we have to consider whether the 2013 Act or the SSA 1998 Act can be read under section 3 of the HRA so as to avoid this incompatibility. We refer to this as the “third issue”. We are divided on this issue.
10. A fourth issue arises, also under the HRA, as to whether even if the first three issues are resolved against the claimants in these appeals, our discretion under section 12(2)(a) of the Tribunals, Court and Enforcement Act 2007 ought to be exercised so as not to set aside the decision of the First-tier Tribunals where the claimants were successful on the basis, so it is argued, that to do so would involve the Upper Tribunal infringing their Article 6 rights. We are agreed on this issue.
11. There are then three other issues on which we are agreed. They need to be addressed in the light of the particular facts of the three appeals. These are: (a) whether a notice complying with the terms of regulation 4 of the 2011 was served (the “fifth issue”); (b) whether there was a lack of sufficient “prior information” such that the requirement to participate in the relevant “work for your benefit” schemes was vitiated (the “sixth issue”); and (c) whether the legal requirements for establishing “good cause” under regulation 7 of the 2011 regulations were met (the “seventh issue”).
12. As we have said, we are divided on the first and third issues: Judges Rowland and Wright forming the majority; Mr Justice Charles the minority. Our majority decision on those two issues is dispositive of the three appeals before us, and if not overturned on appeal will also dispose of many thousands of other appeals currently before the First-tier Tribunal and the Upper Tribunal which have been stayed behind these lead cases. On the basis of the majority decision on the first and third issues, our reasoning and conclusions on the other issues will have little or no bearing on these appeals and those that have been stayed. On the other hand, the majority decision on the first and third issues is very likely to be the subject of an appeal to the Court of Appeal, and if it is overturned what we say on the fifth to seventh issues is likely to be determinative of, or at least have a substantial bearing on, the stayed appeals[1]. Given this, we have addressed all issues fully, giving first the majority reasoning on the first to third issues, then the dissenting reasoning on those issues and finally our unanimous reasoning on the fourth to seventh issues.
Summary of our decision on the issues
13. We have arrived at the following conclusions on the seven issues.
(i) First issue – by a majority, on ordinary, non-HRA canons of construction the 2013 Act does not apply to cases where an appeal had already been brought before the First-tier Tribunal before that Act came into effect.
(ii) Second issue – assuming we are wrong on the first issue, unanimously, section 12(8)(b) of the SSA 1998 does not assist so as to prevent the retrospective effect of the 2013 Act as being a “circumstance obtaining” at the time of the decisions under appeal to the First-tier Tribunal.
(iii) Third issue – if the majority are wrong on the first issue, by that majority the 2013 Act can and must be read under section 3 of the HRA so as to prevent it applying to those who had already brought appeals before the First-tier Tribunal and thus to stop it interfering with their rights under Article 6(1) of the Convention.
(iv) Fourth issue – if the majority conclusions on the first and third issues are wrong, we are of the unanimous view that section 12 of the Tribunals, Court and Enforcement Act 2007 cannot be used so as not to set aside the decisions of the First-tier Tribunals which had found favour of claimants based on Reilly and Wilson.
(v) Fifth issue – unanimously, a notice under regulation 4(2) of the 2011 Regs, as read with the 2013 Act, is met by the provision of a WP05, but may be constituted in more than one document. Further, on the balance of the evidence DB got the WP05 and the First-tier Tribunal therefore did not err in law by not having the WP05 before it when it decided his appeal.
(vi) Sixth issue – in the case of “work for your benefit schemes” which are mandatory both at the stages of referral onto them and once on them (such as the Work Programme in most JSA cases and the Community Action Programme), unanimously, we can identify no basis upon which meaningful representations could be made prior to the decision to refer, in the sense of those representations being able to affect the decision to refer. We are therefore driven to conclude that the Supreme Court wrongly decided this aspect of Mr Wilson’s case in Reilly and Wilson based on a false factual premise. Further, even if requirements of fairness may require information to be provided in respect of steps to be taken or decision to be made once referred onto one of the schemes, no such case arose on any of the cases before us.
(vii) Seventh issue – unanimously, properly construed regulation 7 of the 2011 Regs requires “good cause” to be shown within five working of a claimant being notified of their failure to participate in the relevant scheme and no later period.
Relevant legislation
Jobseekers Act 1995
14. As we have already noted, the basis of the “work for your benefit” jobseeker’s allowance schemes is found in section 17A of the Jobseekers Act 1995, which at the relevant time provided, so far as is material, as follows:
“17A (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…..
(5)Regulations under this section may, in particular, make provision—
(a)for notifying participants of the requirement to participate in a scheme within subsection (1)……
(d)for securing that the appropriate consequence follows if a participant has failed to comply with the regulations and it is not shown, within a prescribed period, that the participant had good cause for the failure…”
The 2011 Regulations
15. The 2011 Regs were purportedly made under these section 17A powers and provided, so far as is relevant to these appeals, as follows:
“2(2) For the purpose of these regulations, where a written notice is given by sending it by post it is taken to have been received on the second working day after posting.
3. The Secretary of State may select a claimant for participation in the Scheme.
4. (1)……, a claimant (“C”) selected under regulation 3 is required to participate in the Scheme where the Secretary of State gives C a notice in writing complying with paragraph (2).
(2) The notice must specify—
(a)that C is required to participate in the Scheme;
(b)the day on which C’s participation will start;
(c)details of what C is required to do by way of participation in the Scheme;
(d)that the requirement to participate in the Scheme will continue until C is given notice by the Secretary of State that C’s participation is no longer required, or C’s award of jobseeker’s allowance terminates, whichever is earlier;
(e)information about the consequences of failing to participate in the Scheme.
(3) Any changes made to the requirements mentioned in paragraph (2)(c) after the date on which C’s participation starts must be notified to C in writing.
6. A claimant who fails to comply with any requirement notified under regulation 4 is to be regarded as having failed to participate in the Scheme.
7. (1) A claimant (“C”) who fails to participate in the Scheme must show good cause for that failure within 5 working days of the date on which the Secretary of State notifies C of the failure.
(2) The Secretary of State must determine whether C has failed to participate in the Scheme and, if so, whether C has shown good cause for the failure.
(3) In deciding whether C has shown good cause for the failure, the Secretary of State must take account of all the circumstances of the case, including in particular C’s physical or mental health or condition.
8. (1) Where the Secretary of State determines that a claimant (“C”) has failed to participate in the Scheme, and C has not shown good cause for the failure in accordance with regulation 7, the appropriate consequence for the purpose of section 17A of the Act is as follows.
(2) In the case of a jobseeker’s allowance other than a joint-claim allowance, the appropriate consequence is that C’s allowance is not payable for the period specified in paragraphs (4) to (7) (“the specified period”).
(3) In the case of a joint-claim jobseeker’s allowance, the appropriate consequence is that C is to be treated as subject to sanctions for the purposes of section 20A (denial or reduction of a joint-claim jobseeker’s allowance) of the Act for the specified period.
(4) The period is 2 weeks in a case which does not fall within paragraph (5), (6) or (7).
(5) The period is 4 weeks where—
(a)on a previous occasion the Secretary of State determined that C’s jobseeker’s allowance was not payable or was payable at a lower rate because C failed without good cause to participate in the Scheme (“the first determination”), and
(b)a subsequent determination is made no more than 12 months after the date on which C’s jobseeker’s allowance was not payable or was payable at a lower rate following the first determination.
(6) Subject to paragraph (7), the period is 26 weeks where—
(a)on two or more previous occasions the Secretary of State determined that C’s jobseeker’s allowance was not payable or was payable at a lower rate because C failed without good cause to participate in the Scheme, and
(b)a subsequent determination is made no more than 12 months after the date on which C’s jobseeker’s allowance was not payable or was payable at a lower rate following the most recent previous determination.
18.—(1) Any function of the Secretary of State specified in paragraph (2) may be exercised by, or by employees of, such person (if any) as may be authorised by the Secretary of State.
(2) The functions are any function under—
(a) regulation 4 (requirement to participate and notification);
(b) regulation 5(2)(a) (notice that requirement to participate ceases); and
(c) regulation 8(8)(b) and 8(11) (requirements and notices after failures).”
The Jobseekers (Back to Work Schemes Act) 2013
16. The 2013 Act was passed and came into force on 26 March 2013 and section 1 provides–
“1 (1) The 2011 Regulations are to be treated for all purposes as regulations that were made under section 17A of the Jobseekers Act 1995 and other provisions specified in the preamble to the 2011 Regulations and that came into force on the day specified in the 2011 Regulations.
(2) The Employment, Skills and Enterprise Scheme mentioned in the 2011 Regulations is to be treated as having been, until the coming into force of the 2013 Regulations, a scheme within section 17A(1) of the Jobseekers Act 1995.
(3) The following are to be treated as having been, until the coming into force of the 2013 Regulations, programmes of activities that are part of the Employment, Skills and Enterprise Scheme—
(a)the programmes described in regulation 3(2) to (8) of the 2013 Regulations, and
(b)the programme known as the Community Action Programme,
and references to the scheme are to be read accordingly.
(4) A notice given for the purposes of regulation 4(1) of the 2011 Regulations (requirement to participate and notification) is to be treated as a notice that complied with regulation 4(2)(c) (details of what a person is required to do by way of participation in scheme) if it referred to—
(a)the Employment, Skills and Enterprise Scheme, or
(b)a programme of activities treated under subsection (3) as part of the scheme.
(5) A notice given for the purposes of regulation 4(1) of the 2011 Regulations is to be treated as a notice that complied with regulation 4(2)(e) (information about the consequences of failing to participate) if it described an effect on payments of jobseeker's allowance as a consequence or possible consequence of not participating in the scheme or a programme of activities…..
(10)The penalty provisions are to be treated (notwithstanding the amendments made by the 2012 Regulations) as having effect after the relevant time as they did before the relevant time, in relation to a failure to comply with the 2011 Regulations…. that occurred or began to occur before the relevant time.
(11)In subsection (10) and this subsection—
“the penalty provisions” means—
…..in the case of a failure to comply with the 2011 Regulations, the
provisions relating to the imposition of a penalty for such a failure that
had effect before the relevant time….
“the relevant time” means the time at which the 2012 Regulations came into force.
(12)A penalty imposed on a person before or after the coming into force of this Act for—
(a)failing to participate in a scheme within section 17A(1) of the Jobseekers Act 1995, or
(b)failing to comply with regulations under section 17A of that Act,
is to be treated as lawfully imposed if the only ground or grounds for treating it as unlawfully imposed is or are removed by subsections (1) to (10).
(13)Subsection (12) does not affect a person's ability to apply for a revision or supersession of, or to appeal against, a decision to impose a penalty by reference to other grounds.
(14)Subject to subsection (10), the 2011 Regulations are to be treated as having been revoked by the 2013 Regulations on the coming into force of the 2013 Regulations.
(15)In this section—
“the 2011 Regulations” means the provisions known as the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (S.I. 2011/917);
“the 2012 Regulations” means the Jobseeker's Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2568);
“the 2013 Regulations” means the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (S.I. 2013/276)….
17. Subject to the arguments as to the proper legal effect of the 2013 Act, it was accepted before us that the “work for your benefit” schemes with which these three appeals are concerned – the “Work Programme” and the “Community Action Programme” – fall within section 1(3) of the 2013 Act.
Social Security Act 1998
18. Adjudication in respect of entitlement to and payability of JSA is governed by the SSA 1998, the two most relevant sections of which are sections 8 and 12. These provide, inter alia, as follows.
“8 (1)Subject to the provisions of this Chapter, it shall be for the Secretary of State—
(a)to decide any claim for a relevant benefit……
(2)Where at any time a claim for a relevant benefit is decided by the Secretary of State—
(a)the claim shall not be regarded as subsisting after that time; and
(b)accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.
12 (1)This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which—
(a)is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act;
(b)is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act.
(2) In the case of a decision to which this section applies, the claimant and such other person as may be prescribed shall have a right of appeal to the First-tier Tribunal, but ….
(8)In deciding an appeal under this section, the First-tier Tribunal—
(a)need not consider any issue that is not raised by the appeal; and
(b)shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”
19. Sections 17 and 27 of the SSA 1998 are also relevant. We do not set out the terms of section 17 here. It is broadly to the effect that, subject to revision or supersession under sections 9 and 10 or appeal, decisions under the Act are final.
20. Section 27 provides as follows:
“27 (1)…..this section applies where—
(a)the effect of the determination, whenever made, of an appeal to the Upper Tribunal or the court (“the relevant determination”) is that the adjudicating authority’s decision out of which the appeal arose was erroneous in point of law; and
(b)after the date of the relevant determination a decision falls to be made by the Secretary of State in accordance with that determination (or would, apart from this section, fall to be so made)—
(i)in relation to a claim for benefit;
(ii)as to whether to revise, under section 9 above, a decision as to a person’s entitlement to benefit; or
(iii)on an application made under section 10 above for a decision as to a person’s entitlement to benefit to be superseded….
(3)In so far as the decision relates to a person’s entitlement to a benefit in respect of—
(a)a period before the date of the relevant determination….,
it shall be made as if the adjudicating authority’s decision had been found by the Upper Tribunal or court not to have been erroneous in point of law…..
(5)Subsection (1)(a) above shall be read as including a case where—
(a)the effect of the relevant determination is that part or all of a purported regulation or order is invalid; and
(b)the error of law made by the adjudicating authority was to act on the basis that the purported regulation or order (or the part held to be invalid) was valid.
(6)It is immaterial for the purposes of subsection (1) above—
(a)where such a decision as is mentioned in paragraph (b)(i) falls to be made, whether the claim was made before or after the date of the relevant determination;
(b)where such a decision as is mentioned in paragraph (b)(ii) or (iii) falls to be made on an application under section 9 or (as the case may be) 10 above, whether the application was made before or after that date
Tribunals, Courts and Enforcement Act 2007
21. Section 12(2) of the Tribunals, Courts and Enforcement Act 2007 is concerned with the powers and duties of the Upper Tribunal in deciding an appeal on a point of law from the First-tier Tribunal. If it decides that the First-tier Tribunal erred on a point of the law, then s.12(2)(a) provides that the Upper Tribunal “may (but need not) set aside the decision of the First-tier Tribunal”.
Human Rights Act 1998
22. Lastly, in terms of statutory provisions, are sections 3, 4 and 6 of the HRA, which provide:
“3 (1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2)This section—
(a)applies to primary legislation and subordinate legislation whenever enacted;
(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c)does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
4 (1)Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2)If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3)Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4)If the court is satisfied—
(a)that the provision is incompatible with a Convention right, and
(b)that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
(5)In this section “court” means—
(a)the Supreme Court;
(b)the Judicial Committee of the Privy Council;
(c)the Court Martial Appeal Court;
(d)in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
(e)in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
(f)the Court of Protection, in any matter being dealt with by the President of the Family Division, the Vice-Chancellor or a puisne judge of the High Court.
(6)A declaration under this section (“a declaration of incompatibility”)—
(a)does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b)is not binding on the parties to the proceedings in which it is made.
6 (1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2)Subsection (1) does not apply to an act if—
(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3)In this section “public authority” includes—
(a)a court or tribunal, and
(b)any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(4) . . . . .
(5)In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
(6)“An act” includes a failure to act but does not include a failure to—
(a)introduce in, or lay before, Parliament a proposal for legislation; or
(b)make any primary legislation or remedial order.”
The cases
Reilly and Wilson
23. The case of Reilly and Wilson was first decided in the High Court on 6 August 2012 ([2012] EWHC] 2292). In short, Mr Justice Foskett found in favour of the claimants on one ground only, namely that the initial letter to Mr Wilson stating that he could be sanctioned for “up to 26 weeks” if he did not participate in the scheme he had been selected to participate in did not comply with regulation 4(2)(e) of the 2011 Regs and was invalid. (Ms Reilly succeeded on the agreed basis that the regulation 4 letter she received was invalid because it wrongly said that she was required to participate in the scheme she had been selected to participate in when in fact it was a voluntary scheme.[2])
24. On appeal, the Court of Appeal ([2013] EWCA Civ 66; [2013] 1 WLR 2239) on 12 February 2013 upheld the High Court on the notices having breached regulation 4(2)(e) of the 2011 Regs, but also held that they breached regulation 4(2)(c) of the same Regulations. However, the Court of Appeal went further and held the 2011 Regs were ultra vires section 17A of the Jobseekers Act 1995, and therefore of no legal effect, because they did not provide any “description” of the schemes made under section 17A.
25. The judgment of the Court of Appeal led immediately to the 2013 Regulations, which were made on the same day as the Court of Appeal’s judgment – 12 February 2013 - and came into effect at 6.45pm on that day (see regulation 1 of the 2013 Regulations). However, these regulations are prospective in their effect only. The 2013 Act, as we have seen passed and coming into effect on 26 March 2013, is the legislative provision under which the Court of Appeal’s judgment was addressed retrospectively.
26. These legislative steps had been taken by Parliament before the Supreme Court considered the Secretary of State’s appeal and the cross-appeal of the claimants in Reilly and Wilson. This led to the comment we have set out in paragraph 5 above. The Supreme Court had referred to the 2013 Act earlier in its judgment, at paragraph 2. The Supreme Court said that the Secretary of State’s appeal against the decision of the Court of Appeal was complicated by the fact that, inter alia, the 2013 Act had come into force, and went on to note that its effect was agreed (by the parties) to validate the 2011 Regulations retrospectively.
27. We consider it appropriate to note here that, again prior to the appeal hearing before the Supreme Court in Reilly and Wilson, the President of this Chamber of the Upper Tribunal had written to the solicitor for the Secretary of State for Work and Pensions on 12 July 2013 to raise with him:
“……a potential concern about the interplay between the Reilly and Wilson case in the Supreme Court, the Jobseekers (Back to Work Schemes) Act 2013 (“the 2013 Act”) and the fifty or so cases (to date) at the Upper Tribunal in which the same issues as to the validity of the relevant regulations and the relevant notification letters will be central to deciding the cases. It is unclear whether the legal effect of the 2013 Act is to have any role in the arguments presented to the Supreme Court in Reilly and Wilson. However, if the effect of the 2013 Act is not in issue before the Supreme Court, I seek your assurance that either through your office or counsel conducting the case for the Secretary of State the Supreme Court will be made aware that it is a live issue on appeals before both the Upper Tribunal (Administrative Appeals Chamber) and the First tier Tribunal (Social Entitlement Chamber).
At present the Upper Tribunal has twenty six Reilly and Wilson look-alike appeals or applications for permission to appeal which have been stayed by the Upper Tribunal pursuant to notices served on the Upper Tribunal by the Secretary of State under section 26 of the Social Security Act 1998, and we have a further thirty five cases in which notices have been a served and where stays will be made in due course. If the Supreme Court allows the Secretary of State’s appeal and sets aside the order of the Court of Appeal in Reilly and Wilson then it is likely that these appeals and applications for permission to appeal will fall to be decided in the Secretary of State’s favour on any Reilly and Wilson ground.
However, if the Court of Appeal’s decision is upheld by the Supreme Court then the scope and legal effect of the 2013 Act will become a very relevant consideration for the Upper Tribunal in deciding the stayed look-alike appeals and applications. It is likely that significant arguments will arise as to the true retrospective effect of the 2013 Act and the relationship of that Act with section 12(8)(b) of the Social Security Act 1998 in the context of deciding whether the First-tier Tribunal erred in law when it decided the appeal before it before the 2013 Act was in place.
It is for these reasons that the Upper Tribunal is concerned that if the effect of the 2013 Act is not an issue that the Supreme Court needs to resolve, it is made aware that it is a an issue that may require to be resolved elsewhere.”
28. In reply, the solicitor to the Secretary of State confirmed that:
“The Respondents in the Reilly/Wilson appeal sought to put in issue the legal effect of the 2013 Act in their Notice of Objection, but the Supreme Court has not granted permission to appeal on that point. Nevertheless, in their written case, the Respondent’s have sought to argue that the 2013 Act renders academic the issues on the appeal, so its effect is likely to be addressed, at least to a certain extent, in the arguments presented to the Supreme Court.
In any event, there is now a judicial review challenge to the legality of the 2013 Act, which has been stayed pending the outcome of Reilly/Wilson in the Supreme Court. In the event that the Court of Appeal decision in Reilly/Wilson is upheld in the Supreme Court, the judicial review proceedings will consider the effect and legality of the 2013 Act.
I can confirm that counsel for the Secretary of State intends, in introducing the appeal, to inform the Supreme Court of these matters, and has been sent a copy of your letter together with a copy of this response.”
The “judicial review” referred to in this letter became what we have termed Reilly No.2.
29. Mr Eadie appeared before the Supreme Court in Reilly and Wilson. He could not recall in any detail what he had said to the Supreme Court about the Upper Tribunal’s cases or Reilly No.2. However, he did accept that there was no argument before the Supreme Court as to the (retrospective) legal effect of the 2013 Act.
30. Given this context, it is accepted by the represented parties that the words “its effect is agreed” in paragraph 2 of the Supreme Court’s decision are to be read as meaning that the Supreme Court proceeded on an unargued premise as to the retrospective effect of the 2013 Act and that therefore the Supreme Court’s description of the intended effect of the Act (as set out in paragraph 5 above) was not part of any binding ratio of its decision: see, if necessary, R(Kadhim) – Brent London Borough Council HBRB [2001] 1QB 955. Mr Eadie therefore did not seek to rely on the Supreme Court’s decision in Reilly and Wilson as being binding on us in this respect: his argument was that the terms of the 2013 Act alone were sufficient to make good the result he contended for in terms of retrospectivity.
31. We note that shortly after what we have termed its description of the effect of the 2013 Act in paragraph 36 of its decision, the Supreme Court did return to the matter – under The issues before this court – in paragraphs 38-41. Having noted that the legal issues it had to address were the same as had been before the High Court and the Court of Appeal, the Supreme Court went on to say (paragraph 39-41) that:
“39….before doing so, it is necessary to address the effect of the 2013 Regulations and the 2013 Act on this appeal and cross-appeal. On behalf of Miss Reilly and Mr Wilson, Ms Lieven QC submits that we should not consider the Secretary of State’s appeal on issue (a), as that issue is now academic, because, even if the Court of Appeal was right to hold that, prior to the 2013 Act coming into force, the 2011 Regulations were ultra vires, Parliament has now validated those regulations through the 2013 Act.
40. The submission has obvious force as a matter of principle. This court, like other courts, is normally concerned with stating the law as it is, not as it was. Further, it is rather unattractive for the executive to be taking up court time and public money to establish that a regulation is valid, when it has already taken up Parliamentary time to enact legislation which retrospectively validates the regulation. That very point was made on behalf of Miss Reilly and Mr Wilson in order to oppose the Secretary of State’s application for permission to appeal to this court, and, at least viewed from our present perspective, we consider that there was considerable force in the point.
41. However, permission to appeal has been given to the Secretary of State, the issue concerned is not the only point at stake in the appeal, the issue may be of some significance to the drafting of regulations generally, and the retrospectively validating legislation is under attack. Bearing in mind those factors, we are of the view that issue (a) should be considered, although the precise formulation of any order that is made will have to be carefully considered, bearing in mind the effect of the 2013 Act.”
32. We read this as saying no more than that the Supreme Court was prepared to rule on the four issues before it – which did not include the legal effect of the 2013 Act – even though on the agreed basis that the 2013 Act had retrospectively validated the 2011 Regulations, the issues were academic. Indeed, the Supreme Court expressly contemplated that a ruling on the issues might still have relevance if the 2013 Act were found not to have the effect agreed by the parties. These passages, in our judgment, support the view that the Supreme Court did not determine the legal effect of the 2013 Act.
33. On the issues the Supreme Court did determine, for our purposes it: (i) upheld the Court of Appeal’s decision that the 2011 Regulations were ultra vires the Jobseekers Act 1995 and therefore, subject to the 2013 Act, of no legal effect; (ii) upheld the Court of Appeal on the notice served on Mr Wilson being invalid, but on the basis that it did not comply with regulation 4(2)(c) of the 2011 Regulations only and not regulation 4(2)(e); and (iii) contrary to the High Court and Court of Appeal, found in favour of the claimants on the “prior information requirement”.
34. As the last issue goes to the heart of one of the issues we have to determine, it is important to set out what the Supreme Court held on the “prior information requirement”.
“65. Fairness therefore requires that a claimant should have access to such information about the scheme as he or she may need in order 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 the 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.
"Give the claimant full details of the sbwa. This should include as much information as possible about the course, the employer, the role etc. The customer must be given full information about the sbwa to ensure they can make an informed decision about taking part, especially as there are mandatory elements once the claimant has agreed to participate."
35. Because the 2013 Act was passed before the Supreme Court’s decision, that Act says nothing about this “prior information” requirement. We must consider how it applies to those on the Work Programme like TJ and DB and what implication the Supreme Court’s decision has for TG whose case, it is accepted, is indistinguishable from Mr Wilson’s because he, too, was on the CAP.
Reilly No.2
36. The second of the cases we need to refer to is Reilly No.2 ([2014] EWHC 2182 (Admin); [2015] 2 WLR 309). This was decided by Mrs Justice Lang on 4 July 2014. It is under appeal to the Court of Appeal. What the claimants sought on the judicial review was a declaration of incompatibility, under section 4 of the HRA, on the ground that the 2013 Act was incompatible with their rights under, inter alia, Article 6 of the Convention (see paragraph 1 of Reilly No.2) . It is important to stress what was being argued for on the judicial review. The High Court was not concerned with deciding, and importantly did not have argued before it (see Kadhim above), what the legal effect of the 2013 Act was or what effect section 12(8)(b) of the SSA 1998 might have on the scope of the 2013 Act, nor was it asked to determine whether either the 2013 Act or section 12(8)(b) of the SSA 1998 could be “read down” under section 3 of the HRA so as to avoid the need for a declaration of incompatibility.
37. The High Court in such judicial review cases is exercising a jurisdiction coordinate with, and not superior to, the Upper Tribunal: Chief Supplementary Benefit Officer –v- Leary [1985] 1 W.L.R. 85 and Secretary of State for Justice –v- RB [2010] UKUT 454 (AAC); [2012] AACR 31. However, this case has proceeded on the basis that we ought to follow the decision in Reilly No.2 on the issue it has decided since it is under appeal and our decision was likely to also end up before the Court of Appeal (whichever way it is decided).
38. Thus, we should follow the High Court’s decision in Reilly No.2 only to the extent of its conclusion, founded crucially in our judgment on an assumed basis, that the 2013 Act breached Article 6 of the Convention. The assumption which lay behind this conclusion, which may have been based on the agreement of the parties in Reilly No2, was that 2013 Act had the legal effect of retrospectively changing all decisions which following the High Court or Court of Appeal in Reilly and Wilson had overturned in claimants’ favour sanction decisions, including such decisions made on appeal by the First-tier Tribunal.
39. A witness statement was put before the High Court in Reilly No. 2 which addressed these Upper Tribunal proceedings (albeit in Mr Hewstone’s case, which is stayed behind these three lead cases). That statement in substance provided the High Court with the Secretary of State’s submissions in these appeals, and thus indicated that the Upper Tribunal was seised of appeals in which the inter-relationship between the 2013 Act and section 12(8)(b) of the SSA 1998 was likely to be a key issue and where argument was to be made on the legal effect of the 2013 Act.
40. Additionally, Mr Eadie, who also appeared for the Secretary of State in Reilly No.2, accepted before us that no argument had been made in Reilly No.2 as to the legal effect of the 2013 Act, its relationship with section 12(8)(b) of the SSA 1998 or whether either could be read down under section 3 of the HRA. The sole focus of the argument was whether the 2013 Act, on the assumption set out above, was contrary to Article 6 of the Convention.
41. It is in this context – assumption and without argument made – that we therefore read Mrs Justice Lang’s comments about (i) the retrospective effect of the 2013 Act (paragraphs 11 and 88), and (ii) these proceedings and their likely outcome (paragraph 88 – “there is no doubt that the Upper Tribunal must now overturn the determination of the [First-tier Tribunal in Mr Hewstone’s favour] which was based upon the invalidity identified in [Reilly and Wilson]”).
42. The approach set out in paragraph 38 above, which we consider we were entitled to take and it was sensible for us to take (in order to allow all relevant arguments to be decided), left us free to hear argument on and then determine what we have termed above issues (i) to (iii).
Relevant Background – the “work for your benefit” schemes
43. It is convenient at this stage to set out some detail on the “Work Programme”, which applies in the cases of TJ and DB. We do so in order to give context to the arguments made about whether notices requiring TJ and DB to participate in the Work Programme were provided to them (the fifth issue) as well as to set out the (mandatory) nature of the scheme. We take the detail from the witness statements (and exhibits) of Allan Whittaker of the Provision, Assisting Communities, Employer Team of the Department for Work and Pensions at Hartshead Square in Sheffield, on behalf of the Secretary of State. Their contents were not disputed.
44. We will return to explain the salient features of the “Community Action Programme” - which applies in the case of TG (and also applied to Mr Wilson in Reilly and Wilson) - when we address the facts in TG’s case.
Work Programme
45. The Work Programme is the main scheme under the “work for your benefit” schemes for the long-term unemployed. It was introduced from 1 June 2011. For the purposes of these appeals, the detail was set out in the May 2011 version of the operational guidance for referral to the Work Programme. Mr Whittaker is the “owner” of this guidance and has been responsible for its publication and maintenance since March 2012. The operational guidance was the subject of change in October 2012, but it is the original form with which we are concerned in these appeals. For ease of expression, and to avoid confusion (as it seems the Work Programme remains as mandatory now as it was in its original incarnation), in the main we use the present tense when speaking of the May 2011 version of the operational guidance.
46. Crucially, this operational guidance shows that in most cases the Work Programme is a mandatory programme. For example, if a person is aged 25 or over and has spent 12 months on JSA then, subject to limited exemption or deferral criteria, referral to the Work Programme is mandatory as is their participation once on the Work Programme (paragraph 17 of the operational guidance). For those aged 18 to 24 years, both stages are mandatory, but the period of claiming JSA prior to referral is reduced to 9 months.
47. An example of where the referral is optional, but once referred participation is mandatory, is those people with what are termed “early entry characteristics” – e.g. ex-offenders, carers, people with disabilities, care leavers and the homeless - claiming JSA. They are “informed at the earliest point of referral [to the Jobcentre on a new claim for JSA] about the Work Programme and offered early entry [after 3 months on JSA]”.
48. There are then categories of claimant for whom both stages are voluntary. For present purposes we need say no more than that none of these categories encompassed people claiming JSA. (e.g. one category involves a pension credit claimant with a health condition, who could choose to go onto the Work Programme at any time). (It is worth also noting that there are categories of non-JSA claimant for whom both stages (i.e. referral and participation once on) are mandatory, but we are not concerned with any such cases here.)
49. The only JSA claimants, therefore, where both stages are not mandatory are those with “early entry characteristics”. However, it is instructive to note that the “optional” aspect for these people is limited to early (i.e. after 3 months) referral to the Work Programme; but once on their participation is mandatory. Accordingly, if such a person is not referred at this stage and then by reasons of age and time on JSA they reach their mandatory referral point (e.g. after 12 months if aged 26), the fact that they are homeless or an ex-offender does not prevent them from being referred or provide them with any additional route out of referral: indeed their status never provided them a route out of referral at all.
50. A central feature of the Work Programme is that it is delivered by a range of organisations external to, and under contract to, the Department for Work and Pensions (e.g. Avanta Enterprises Limited in TJ’s case).
51. Those claimants of JSA who at the material time were expressly exempt from the Work Programme are set out at paragraph 24 of the operational guidance, and were: (i) women who were pregnant and within 3 months of their expected date of confinement; (ii) victims of domestic violence, and (iii) those for whom “Work Choice” had been identified as a more suitable option and who had been referred to that scheme. Paragraph 25 of the operational guidance does go on to provide:
“Other than where stated, advisers should use their discretion to determine the exemption period based on the facts of the individual case, e.g exempt until the customer’s child reaches age 5” (our underlining added for emphasis).
However, this passage seems not to be suggesting a discretion to exempt other groups, but rather is dealing with the period of the exemption in relation to the defined exempt categories where the period of the exemption is not provided for.
52. The mandatory referral onto the Work Programme could also be deferred for a maximum period of 3 months from the date of eligibility for referral (that is, for example, 3 months from the date when a 26 year old has been claiming JSA for 12 months). The operational guidance sets out that deferral should only be considered if the staff member is confident either that the person would come off JSA within the 3 months (e.g. because they would start paid work), or that they would meet one of the exemption criteria within 3 months. Thus there may be a short deferral where the claimant provides evidence that they have a job interview. Further examples where deferral may be appropriate are where the claimant is due to leave Great Britain and will be ending their claim for benefit, where they are to take part in the New Enterprise Allowance Scheme, or if the “[personal adviser] believes that referral and completion of other provision would be more beneficial to the customer” (paragraph 39).
53. When a claimant is around three weeks before the “mandatory referral point” to the Work Programme, a meeting is held with him or her to arrange a “Work Programme Referral Interview”. At this interview the claimant’s eligibility for referral to the Work Programme is checked (i.e. if aged 26, has he been claiming JSA for 12 months), as are whether any of the exemption of deferral criteria apply. The key features of the Work Programme have to be communicated to the claimant at this interview (i.e. his or her responsibilities under it and the sanctions that could be applied). At this stage the claimant is to be given an opportunity to raise any concerns or questions about the Work Programme. This is dealt with in paragraphs 42 and 43 of the operations guidance, which set out:
“About the Work Programme
42. Explain to all customers, whether their referral to the WP is mandatory (including optional early access) or voluntary, what support they can expect
from participation in the WP, highlighting the benefits for them.
43. This must include:
the WP lasts for 2 years (104 weeks), regardless of changes in benefit
or employment
the provider is randomly allocated by the system and not determined by
the adviser or customer preference
the support will be tailored to the customer’s individual needs and
circumstances
that the provider will discuss and work with the customer to decide what
help they need to find work and what they can do to improve their
chances of obtaining work
that the customer may be asked to take part in work-related activities
such as work experience, training and further support
the provider will give all the work-focused support the customer needs
during this time, even if they change benefits
once in employment the provider will continue to offer support to help
them stay in a job
that expenses will be covered by the provider e.g. childcare and
replacement care costs, travel expenses etc as customers on the WP
do not have access to the Flexible Support Fund (FSF)
in England for IS and IB customers the WP is funded by the ESF
for customers who have optional access to the WP you must explain that their participation will be mandatory and the implications of sanctions if they fail to carry out the activities directed by the provider
inform Lone Parents there are a number of additional support initiatives
available via JCP to support their transition in to work and career progression once in work, “In Work Advisory Support” (IWAS) and “In-Work Credit”(IWC)
Inform IB and ESA customers about the Return to Work Credit (RTWC), the financial incentive offered to all eligible customers moving back to work.”
54. Mr Whittaker explains that as part of the referral the claimant is provided with a Work Programme leaflet (WPO1), and ought also be provided, where available to the Personal Adviser within the Jobcentre, with a “provider service note” detailing the support and standards which they would deliver.
55. If a decision is taken to refer to the Work Programme, the personal adviser issues the claimant by hand with the notice under regulation 4 of the 2011 Regs (“the WP05” – see the Appendix to this decision for the wording of a WP05), together with the WP01 and, if available, the provider service note.
Relevant background – factual
SSWP –v-TJ
56. The claimant in this appeal, TJ, appealed the Secretary of State’s decision dated 25 June 2012 to the First-tier Tribunal on 4 July 2012. The Secretary of State’s decision under appeal was to the effect that TJ’s jobseeker’s allowance was not payable for two weeks from 28 June 2012 to 11 July 2012 because she had failed without good cause to participate in the Work Programme. A witness statement provided to the Upper Tribunal by TJ’s Personal Adviser at the relevant time sets out that as TJ had been claiming JSA as a lone parent for over 52 weeks she was “eligible to be referred to the [Work Programme] from 18 April 2012 on a mandatory basis”. This was not disputed.
57. It was said in the Secretary of State’s appeal response to the First-tier Tribunal that TJ had been referred by her jobcentre to the Work Programme run by Avanta Enterprises Limited by way of a letter dated 9 May 2012. This would have been a “WP05 letter” in terms set out in the Appendix to this decision It is now common ground that this letter was not in fact issued to TJ.
58. TJ was, however, given a letter of the same date (9 May 2012). The terms of this “Opportunity letter” are also set out in the Appendix to this decision.
59. The Work Programme provider – Avanta – then wrote to TJ in a letter dated 14 May 2012 asking her to attend at 9.30am on 21 May 2012 at Avanta’s office in Chatham. The terms of this appointment letter are also set out in the Appendix. It was because TJ did not attend this appointment that a sanction was imposed for the two week period set out above.
60. Avanta brought TJ’s non–attendance on 21 May 2o12 to the Secretary of State’s attention in a form WP08 on 22 May 2012. This set out, inter alia, that TJ had been issued with the mandatory attendance letter on 14 May 2012 by first class post and set out the details of when she had been due to attend. This information then led a Secretary of State decision maker to write to TJ on 6 June 2012 asking her to give her reasons to explain why she did not undertake the activity (to attend on 21 May 2012) and return these in the envelope provided by 18 June 2012. Believing that there had been no reply to that letter, the Secretary of State made the above sanction decision of 25 June 2012 on the ground that no good cause had been shown within five working days. TJ appealed saying that she had “phoned the number provided and explained”.
61. The First-tier Tribunal allowed TJ’s appeal, on the papers, on 6 November 2012 on the ground that “the possible sanction was not communicated to [TJ] appropriately and therefore the sanction is not valid”. This was expanded upon in the tribunal’s statement of reasons to show that the First-tier Tribunal followed the High Court’s decision in Reilly and Wilson to the effect that the notice letter served on TJ was inadequate. What notice that was was not identified, but given the Court of Appeal’s and Supreme Court’s later holdings as to the vires of the 2011 Regs (absent the 2013 Act) it would seem not to be a material omission if the 2013 Act did not have retrospective effect in relation to this case.
62. The Secretary of State appeals against the First-tier Tribunal’s decision with the permission of that tribunal.
DB –v- SSWP
63. The Secretary of State decision under appeal to the First-tier Tribunal in DB’s case is dated 7 June 2012. This imposed a 26 week sanction on DB – from 12 June 2012 to 10 December 2012 – because he had failed without good cause to participate in the Work Programme. The length of this sanction was dictated by DB having had two previous sanctions within the previous 12 months.
64. The alleged breach was DB’s failure to attend an appointment with Triage Central Limited (“Triage”) in Middlesbrough on 17 May 2012 at 11am, which he had been notified about in a letter from Triage dated 8 May 2012. It is relevant to refer to three passages in this letter. The first told DB that if he could not attend he must contact Triage as soon as possible to arrange a new appointment. The second passage told him that Triage would refund his travel costs for appointments as long as he had retained proof of purchase. The third informed him that it was a mandatory appointment and that if he did not undertake the activities required in the letter (i.e. attend on 17 May 2012 at 11am) his benefits could be affected.
65. As in TJ’s case, the WP08 form from Triage to the Jobcentre, dated 18 May 2012, gave details of when the mandatory appointment was and how DB had been notified of it (1st class post), and it also referred to four past failures to attend by DB. That too then led to a WP12 letter being issued to DB, on 28 May 2012, in which he was asked to contact the Jobcentre before 6 June 2012 to explain why he did not undertake the activity (of attending on 17 May 2012). DB having made no contact within 5 working days, the decision of 7 June 2012 was made.
66. The relevant parts of DB’s grounds of appeal were as follows:
“Upon attending a appointment I was told I’d to attend Triage Work [Programme]. I asked could arrangements be made closer to which I was told yes and to speak with Triage – I did this to be told that this is not possible. I have no knowledge of the [Middlesbrough] area and was provided with no maps and only a verbal guide over the phone. This led to a 2 week sanction done over 4 weeks…..During them weeks I got more appointments from Triage on which I called them and the Jobcentre explaining I had no money to get there – they suggested I borrow on which I could not leaving no means to get there. I suggested on many occasions to be moved to Avanta in Stockton were I could walk if I did not have a way to get there. I was told it was not possible the system chooses the appointment. I have not chose to not take advantage of a work programme – more so had it forced upon me.”
67. The First-tier Tribunal dismissed the appeal on the papers, despite having had its attention drawn to the High Court’s decision in Reilly and Wilson. It found as a fact that DB had been notified in writing of the appointment on 17 May 2012 at 11am, that he had failed to attend that appointment, and that he had failed within 5 working days to explain his reasons for non-attendance. With the assistance of Stockton CAB, DB sought permission to appeal, inter alia, on the basis of the First-tier Tribunal’s failure to explain why it had not had regard to, or applied, the High Court’s decision in Reilly and Wilson. No ground was advanced by the CAB that DB had never been properly referred onto the Work Programme. General permission to appeal was given by Upper Tribunal Judge Rowland on 17 June 2014.
SSWP –v- TG
68. The facts of the third appeal, concerning TG, differ in that the scheme in issue is not the Work Programme but the Community Action Programme (the “CAP”).
69. The decision under appeal to the First-tier Tribunal in TG’s case was made on 26 March 2012 and was to the effect that JSA was not payable to TG for the 2 week period from 27 March 2012 to 9 April 2012 because he had failed without good cause to participate in the CAP. TG had been in receipt of JSA since April 2009. Following his failure to attend four previous CAP appointments, on 10 February 2012 the CAP provider – Ingeus – wrote to TG on 10 February 2012 telling him of an appointment he needed to attend with them on 21 February 2012 at 9.30am. The letter in all other relevant particulars was identical to the one sent by Triage (which is part of Ingeus) to DB, as set out in paragraph 64 above.
70. The CAP7 form (equivalent to the WP08 forms in relation to the Work Programme - see above) issued by Ingeus to the Jobcentre on 28 February 2012 recited that TG had failed to attend CAP induction days on 13 December 2011, 3 and 20 January 2012, 10 February 2012, and 21 February 2012, at 9.30am on each occasion. This then led the Jobcentre to ask TG for his reasons for not attending in a letter (cap6 11/11 – very similar to the WP12 letters in relation to the Work Programme) dated 14 March 2012. Reasons were to be provided by 22 March 2012. TG responded on that date. His reasons for not attending were that he had been having personal and financial difficulties, and he knew travel expenses were refunded “but it’s finding the travel cost in the first place….and all my benefit money goes on living expenses”.
71. This was not accepted as “good cause” by the Secretary of State because TG had last “signed-on” for JSA on 6 February 2012 and would have received his fortnightly award of JSA of £115.32 two or three days later, and therefore TG ought to have had money to pay for his fare in advance on 21 February 2012. Further, TG had made no contact with Ingeus before 21 February 2012 to explain any difficulty in attending. TG’s grounds of appeal to the First-tier Tribunal repeated what he had said earlier about not being able to meet the travel expenses in advance.
72. The First-tier Tribunal allowed the appeal on 14 December 2012. In terms, the tribunal allowed TG’s appeal by following Reilly and Wilson in the High Court and holding that the phrase in the appointment letter “This is a mandatory appointment. If you do not undertake the activities required in this notification your benefits could be affected”, did not meet regulation 4(2)(e) of the 2011 Regulations.
73. The Secretary of State appeals against the First-tier Tribunal’s decision with the permission of Judge Rowland, given on 17 June 2014.
74. Although TG was not represented, we listed it for hearing with the other cases because, as is accepted by the Secretary of State, his case is indistinguishable on the “prior information requirement from Mr Wilson’s case in the Supreme Court”. We wished to hear argument from the Secretary of State as to where the Supreme Court’s decision ought to lead.
The Legal Issues
75. We will address the rival arguments of the parties in the course of our discussion on the seven legal issues which we have to decide. We seek to decide each issue, even though our decision on an earlier issue may be determinative of the appeals, as we are aware that these cases are likely to be appealed further. Mr Jones bore the burden of arguing matters on the first to fourth issues for all the claimants, and the fifth issue insofar as it related to TJ, with Mr Richards arguing the fifth to seventh issues. Mr Eadie addressed the first to fourth issues for the Secretary of State with Ms Leventhal dealing with the fifth to seventh issues.
76. The numbering and characterisation of the issues differs from the way in which the arguments were framed to begin with but accord, we consider, with the way in which the arguments concluded before us.
The reasoning and conclusions of the majority on the first to third issues
77. The issue of retrospectivity was initially addressed by us in relation only to section 12(8)(b) of the SSA 1998 in directions made on 31 January 2014 in which the following was set out:
“Assuming that the 2013 Act is retrospective, and putting to one side the arguments arising in the [Reilly No 2] judicial review, a discrete legal issue arises as to how the 2013 Act is to be read with sections 8(2)(b) and 12(8)(b) of the Social Security Act 1998.
Put shortly, in the context where the claimant “won” below because the First-tier Tribunal followed either the High Court’s or Court of Appeal’s decision in Reilly and Wilson (as the tribunal was then as matter of law bound to do), in what sense did it err in law by not taking account of the 2013 Act when it was prohibited by section 12(8)(b) from taking into account “any circumstances not obtaining at the time when the decision appealed against was made”?
This may apply also to those appeals where the claimant “lost” below ….[DB’s case], because it may be argued that the First-tier Tribunal erred in law in not following the High Court’s or Court of Appeal’s decision in Reilly and Wilson, and the issue would then arise whether that error of law could be overset by the 2013 Act when that Act did not as a matter of fact exist “at the time when the decision appealed against was made”.”
78. Despite the way in which we sought to frame the issue, given the way in which the argument ultimately came to be shaped before us by Mr Eadie and Mr Jones, to both of whom we are greatly indebted, we consider the first issue we need to consider is the retrospective extent of the 2013 Act divorced both from section 12(8)(b) of the SSA 1998 and from the HRA 1998. We have explained above why we consider neither the Supreme Court’s decision in Reilly and Wilson nor Mrs Justice Lang’s judgment in Reilly No 2 prohibit us from deciding the precise retrospective effect of the 2013 Act.
First issue –the retrospective extent of the 2013 Act
79. It is common ground that the 2013 Act is retrospective but it was argued on behalf of the claimants by Mr Jones that it is not to be construed so as to affect claimants who had appealed to the First-tier Tribunal before it came into effect. Three classes of case were identified: cases in which the Secretary of State had made a decision imposing a sanction that had not been the subject of an appeal, cases where he had not yet made such a decision and cases where he had made such a decision and the claimant had appealed against it. The 2013 Act, he submitted, retrospectively validated the 2011 Regs and the notices made under them for the purposes of the first two of those classes but not the third.
80. Two considerations are relevant here in addressing this argument.
81. First, and as was common ground before us, the question whether, and if so to what extent, an Act is retrospective is to be approached in the light of the speech of Lord Mustill in L’Office Cherifien Des Phosphates –v- Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, at 524-525. He said:
“it would be impossible now to doubt that the court is required to approach questions of statutory interpretation with a disposition, and in some cases a very strong disposition, to assume that a statute is not intended to have retrospective effect. Nor indeed would I wish to case any doubt on the validity of this approach for it ensures the courts are constantly on the alert for the kind of unfairness which is found in, for example, the characterisation as criminal of past conduct which was lawful when it took place, or in alterations to the antecedent national, civil or familial status of individuals. Nevertheless, I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule…what ought to be analysed is the statute itself.
….I…. prefer to proceed directly to the ascertainment of the intention which Parliament intended section 13A to achieve, by way of reference to the following statement by Staughton L.J in Secretary of State for Social Security –v- Tunnicliffe [1991] 2 All E.R. 724…:
“In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more its is to be expected that Parliament will make it clear if that is intended”
Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say.”
82. We are therefore engaged in the task of statutory construction, that task involving, as always, the ascertainment of Parliament’s intention in passing the Act, having regard to its language, its context (including the mischief which the Act was seeking to address) and such background materials as are admissible.
83. The crux of the Secretary of State’s argument placed particular reliance on the wording “for all purposes” in section 1(1) of the 2013 Act as establishing the breadth of the Act’s retrospectivity. Moreover, section 1(5) of the 2013 Act provides that a notice which had been given (i.e. in the past) for the purposes of regulation 4(1) of the 2011 Regulations was to be treated as a notice that complied with regulation 4(2)(e) of the 2011 Regulations if it described an effect on payment of JSA as a possible consequence of not participating in the Work Programme or the CAP[3]. We can see the force of the argument that on a literal construction of section 1(1) it applies “for all purposes” without exception. However, such general words may properly be construed as being subject to exceptions where Parliament can be taken to have intended the narrower construction.
84. The second consideration is the relevant legal background to the 2013 Act being passed.
85. We start our consideration of this background with the agreed principle of law that the effect of a binding higher court’s decision on the law is to state the law as it has always been. See Lord Nicholls In re Spectrum Plus Ltd [2005] UKHL 41; [2005] 2 AC 680 at paragraphs 4-7 and 34. As Lord Nichols put it in paragraph 7 “A court ruling which changes the law from what it was previously thought to be operates retrospectively as well as prospectively”. Absent the 2013 Act, therefore, the legal effect of the Court of Appeal’s and Supreme Court’s decisions in Reilly and Wilson was that the 2011 Regulations had never been validly made (i.e. were unlawful and of no legal effect) and, alternatively, the notices issued did not comply with regulation 4(2)(c) of the 2011 Regulations.
86. It is precisely because of this particular legal effect of binding decisions on the law that section 27 of the SSA 1998 (and its predecessors) was enacted, so as to require the Secretary of State to ignore the effect of the court’s declaration of the law for all claimants who had not appealed a decision which would otherwise have been wrong in the light of the court’s decision. Section 27 contains what is often referred to as the “anti-test case” rule. This rule has the effect that only those claimants who have already made appeals to the First-tier Tribunal can take the benefit retrospectively from a decision made on appeal in another case by the Upper Tribunal or higher courts. All other claimants can only benefit from the decision from the date of the decision. Importantly, however, section 27 has no application if the “test case” which provides a positive result for claimants does not arise on an appeal.
87. Even though “appealed” to the Court of Appeal and then the Supreme Court, Reilly and Wilson was decided on a judicial review and so section 27, it is agreed, could not act to prevent all similar claimants from benefiting from its result. In our judgment this is an important part of the conscious background to the 2013 Act’s passing. If Reilly and Wilson had instead been decided on an appeal to the Upper Tribunal then section 27 would have applied to deny claimants from benefiting from its result for any past period save for those claimants who had already appealed against a Secretary of State sanction decision made under the 2011 Regs. Legislation equivalent to the 2013 Act would only have been needed only if it was intended to prevent those who had already appealed from benefiting from the Reilly and Wilson decision (i.e. the precise category of claimants who Mrs Justice Lang held ought to be protected from legislative interference under Article 6 of the Convention).
88. As Lord Mustill made clear, there are degrees of retrospectivity and we must determine the degree of retrospectivity intended when the 2013 Act was passed. There is, it seems to us, a material distinction between retrospectively validating a decision of the Secretary of State that has not been challenged and retrospectively validating one that has been challenged and it is an important consideration in this case that this distinction is recognised in statute in this very area of law. Section 27 of the SSA 1998 not only has the effect that a decision of a superior court (including the Upper Tribunal) that is adverse to the Secretary of State does not affect decisions already taken by the Secretary of State that have not been challenged, but it also requires the Secretary of State to continue making decisions contrary to the decision of the superior court in respect of periods before it gave its decision, presumably in the interests of equity between claimants. Nonetheless, as we have said, neither that section nor section 26 (which enables the Secretary of State to direct tribunals to stockpile cases pending a decision of a superior court or to decide them in his favour on the material issue pending the superior court’s decision) has the effect that those claimants who have already brought appeals may not take full advantage of the decision of the superior court even in respect of periods before it gave its decision. Mrs Justice Lang’s judgment in Reilly (No.2) also shows how important this distinction – between those who have exercised rights of appeal and those who have not – is in Convention jurisprudence. Moreover, it appears from paragraph 98 of that judgment that section 27 and its forerunners have been drafted as they are with the Convention in mind so that this is an example of how, even before the HRA 1998 came into force, the Convention was influencing domestic legislation.
89. Where there are degrees of retrospectivity and a statute is clearly intended to be retrospective, Lord Mustill’s disposition to assume that a statute is not intended to have retrospective effect becomes a disposition to assume that it has no greater retrospective effect than is clearly intended. Against the background of sections 26 and 27 of the SSA 1998, we approach the 2013 Act with a disposition to read the words “for all purposes” in section 1(1) as qualified by an intention not to affect the rights of those claimants who had already appealed unless we can find evidence of a contrary intention.
90. The words of the statute do not provide such evidence. The language of subsections (2) to (10) of section 1 does not add anything to the language of subsection (1) itself; they clearly all apply to the same extent as subsection (1). Subsections (12) and (13) make equal sense whether subsection (1) is construed literally or narrowly.
91. However, the wider statutory context tends to suggest that a narrow construction was intended. In the absence of any clear indication to the contrary, it seems to us that it is unlikely that Parliament intended that the 2013 Act should have a greater retrospective effect than section 27 of the SSA 1998 would have had had Reilly and Wilson been decided on an appeal rather than on judicial review. There is certainly no obvious reason why Parliament should have done so.
92. The only admissible extra-statutory material to which we have been referred are the Explanatory Notes ordered by the House of Commons to be printed when the Bill that became the 2013 Act was introduced, which we have considered in the context (per Lord Steyn in R(Westminster CC) –v- National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956), of seeking to identify “the objective setting or contextual scene of the statute, and the mischief at which it is aimed”.
93. These Explanatory Notes are important, not so much for what they show the Government as having intended but because they were part of the background against which Parliament considered whether to pass the Bill and will have informed its understanding of the effect that the Bill would have if enacted. Both parties relied upon them[4]. Mr Eadie referred us to in particular paragraphs 6, 13, 14, 29 and 30. Those are certainly consistent with a literal interpretation of the phrase “for all purposes” in section 1(1) but none of them shows that particular consideration was given to the effect this would have on the class of those who had already appealed and so they are also consistent with that class of case having been entirely overlooked. Thus, they do not clarify the language of the Act. The third sentence of paragraph 41 might be read at first sight as supporting more strongly the suggestion that the material class of claimants was overlooked but, at the end of the day, it too can be read both ways.
94. More interesting is what is said in paragraphs 42 to 48 and it is on this section of the Explanatory Notes that Mr Jones placed most weight.
“EUROPEAN CONVENTION ON HUMAN RIGHTS
42. The Government considers that the Jobseekers (Back to Work Schemes) Bill is compatible with the European Convention on Human Rights ("ECHR"). Accordingly, the Minister in charge of the Bill, the Rt. Hon Iain Duncan Smith MP, has made a statement under section 19(1)(a) of the Human Rights Act 1998 to this effect.
43. In the event that it were to be considered that the proposed legislation interfered with property rights under Article 1 of Protocol 1 of the ECHR, the Government considers that any such interference is justified as there are compelling public interest reasons for doing so, given the significant cost to the public purse of repaying previously sanctioned benefits, and as the aim of the proposed legislation is intended to restore the law to that which Parliament intended.
44. A claimant might also argue that legislation which removes their right to a refund of sanctioned benefits, or allows the Secretary of State to impose a sanction, notwithstanding the Court of Appeal’s decision, is a breach of their right of access to court under ECHR Article 6.
45. If no legal claim has been brought on the grounds that the [2011] Regulations are ultra vires and/or that the notice issued under them is non-compliant prior to the enactment of the proposed legislation, the Government considers that Article 6 is not engaged at all since the claim to entitlement to benefit, and any dispute regarding a benefit decision thereon which would require access to the courts, remains hypothetical.
46. Similarly, for cases where the Secretary of State has not yet made a sanction decision, the Government considers that Article 6 will not be engaged as there will be no potential dispute about the right - the effect of the legislation will be that there can be no right to object to the sanction on the notice or vires grounds.
47. Even if the proposed legislation would interfere with a right of access to court, the Government considers that the interference is justified for similar reasons as for Article 1 of Protocol 1.
48. These issues were considered in Stran Greek Refineries and Stratis Andreadis v Greece (09.12.1994) and National & Provincial Building Societies v UK (23.10.1997). As with that latter case, the legislation would have the effect of closing a loophole in order to give effect to the original intention of Parliament, which is not disputed.”
95. Paragraphs 45 and 46 show that the first two of Mr Jones’ three classes of case were intended to be caught by the Act – just as they would have been caught had section 27 of the SSA 1998 applied – but there is no mention of his third class of cases which are those in which claimants might most obviously – and correctly in the light of Mrs Justice Lang’s decision – have argued that there was a breach of Article 6 in their cases. We do not see how that section of the Explanatory Notes could properly have been written as it was had the Government intended that those who had already appealed against sanctions should be caught by the Bill. It is also a fair inference that Parliament would have understood that only those within the scope of paragraphs 45 and 46 would be affected by the Bill and that that is what it intended when it passed it.
96. We are unable to infer even from this section of the Explanatory Notes that there was a deliberate intention to exclude from the scope of the Bill those who had already appealed against sanctions but we are quite satisfied that there was no positive intention to include them and, given also the background of section 27 of the SSA 1998, we consider that this class of case may have been completely overlooked. The fact that section 27 did not apply was doubtless very much in the Government’s mind and it seems quite possible that the Government intended that its Bill should catch those who would have been caught by section 27 had it applied, without anyone considering whether it should go further and catch those who, by design, would not have been caught by section 27.
97. Given the disposition not to read legislation to be more retrospective than clearly intended, we are satisfied that, notwithstanding the literal meaning of the words “for all purposes” in section 1(1), the 2013 Act should be read so as not to affect those who had already appealed against sanctions.
98. Accordingly, the First-tier Tribunals in TJ’s and TG’s cases did not err materially in the decisions to which they came. However, the First-tier Tribunal in DB’s case did err materially in law for not holding there was no proper legal basis for the Secretary of State’s decision under appeal to it, and its decision must be set aside.
Second issue – section 12(8)(b) SSA 1998
99. Broadly speaking, and ignoring the effect of section 3 of the HRA 1998 for the moment, the effect of sections 8(2)(b) and 12(8)(b) of the SSA 1998 is to focus adjudicatory attention on the “circumstances obtaining” at the time of the Secretary of State’s decision on the claim for benefit. If the person’s circumstances change after that date then either they have to make another claim for the benefit (if they were refused benefit on the first claim) or apply to have the awarding decision superseded pursuant to section 10 of the SSA 1998. A “relevant change of circumstances” is a ground of supersession for the purposes of supersession under section 10 (see regulation 6(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991)) and for half a century before the SSA 1998 came into force it had been a ground of review.
100. How then does retrospective legislation fit into this framework? More particularly, if (contrary to our view) the 2013 Act is fully retrospective, how does it affect, to take the most straightforward example, a claimant who had won his appeal to the First-tier Tribunal well before the 2013 Act was on the statute book and where the appeal had succeeded on the basis that as at the time of the decision under appeal as a matter of law the 2011 Regulations were ultra vires and/or the notice requiring the claimant to participate in the scheme was invalid?
101. The Secretary of State’s oral argument before us modified the argument he had presented in writing. In his written argument he had founded, at least in part, on an argument that the word “circumstances” in section 8 and 12 of the SSA 1998 meant factual circumstances and not changes in the law or changes in legal circumstances. However, given the link between section 12(8)(b) and the power to supersede on the ground of change of circumstances, it seems fairly clear that “circumstances” in s.12(8)(b) was intended to be construed in the same sense as in the previous ground for review. A change in legislation has always been regarded as a change of circumstances and there is Court of Appeal authority to that effect in Chief Adjudication Officer v McKiernon (reported as R(I) 2/94). Indeed, if Mr Eadie had been right in his written submission, it is difficult to see how any effect could be given to any change of legislation in relation to claimants with current awards for indefinite periods, even if it were favourable to them.
102. Perhaps recognising this difficulty, in oral argument Mr Eadie changed tack and argued that “circumstances” can include legal circumstances but that, where retrospective legislation is concerned, the material change takes place retrospectively from the date from which it is deemed to take effect, rather than from the date it comes into force. Thus, it can change the circumstances “obtaining at the time when the decision appealed against was made”.
103. However, Mr Jones relied upon McKiernon for the proposition that the change of circumstances was the coming into force of retrospective legislation. If the coming into force of the Act is the change of circumstances, he argued, the circumstances obtaining at an earlier date are not affected by it.
104. In many respects, the facts of the McKiernon were similar to the facts of the cases before us. Mr McKiernon claimed disablement benefit in respect of occupational deafness on 15 July 1986 but the claim was rejected by an adjudication officer on the ground that his claim had been made more than five years after his employment had ended. He appealed and, on 26 October 1989 after appeals had been considered by a social security appeal tribunal and a Social Security Commissioner, the Court of Appeal accepted his argument that regulation 25 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 (SI 1985/967), which imposed the five year time-limit, was ultra vires to the extent that it did not allow a claim to be made if the claimant had had good cause for a delay since a date before the five years had elapsed (McKiernon v Secretary of State for Social Security (26 October 1989, unreported)). The case was accordingly remitted to a social security appeal tribunal who decided on 5 July 1990 that the claimant had had good cause for the delay and awarded him disablement benefit from 5 October 1983 for life, it having previously been accepted by an adjudicating medical authority that the claimant was suffering from the occupational disease. It is not clear from the reports whether any payment was made to Mr McKiernon in the light of that decision.
105. On 13 July 1990, paragraph 4(3) of Schedule 6 to the Social Security Act 1990[5] came into force and retrospectively validated the previously ultra vires regulation and, on 17 September 1990, an adjudication officer reviewed the decision of the social security appeal tribunal given on 5 July 1990 and disallowed the claimant’s claim for benefit from 5 October 1983. Mr McKiernon appealed again but, this time, after he had lost before a social security appeal tribunal but succeeded before a Social Security Commissioner, the Court of Appeal allowed an appeal by the Chief Adjudication Officer. The Court held that the coming into force of the 1990 Act was a “relevant change of circumstances since the decision [of the social security appeal tribunal dated 5 July 1990] was given” but that, because the legislation was retrospective, the review was effective from the beginning of Mr McKiernon’s claim in 1983.
106. That is not a result that the Secretary of State could have achieved under current legislation. Had it been, there would be no advantage to Mr Jones’ client in relying on the decision because the Secretary of State could simply have superseded the decision of the First-tier Tribunal in her case instead of appealing. In order to determine the significance of that case in the modern context, it is necessary to look at the way in which it was argued and the differences between the legislation then in force and current legislation.
107. The differences need to be considered against the similarities. At that time, section 104(1) of the Social Security Act 1975 empowered an adjudication officer to review a decision of an adjudication officer, a social security appeal tribunal or a Social Security Commissioner on the ground either that it had been given in ignorance of, or had been based on a mistake as to, some material fact or that there had been a “relevant change of circumstances since the decision was given”. Other grounds of review under section 104(1) are not material. Section 104(1A), inserted with effect from 23 April 1984, also permitted an adjudication officer to review a decision of an adjudication officer – but not, for obvious reasons, a social security appeal tribunal or Social Security Commissioner – on the ground that it was erroneous in point of law. These are all now grounds for supersession under regulation 6(2) of the 1999 Regulations. It remains the case that a decision of the Secretary of State, the First-tier Tribunal or the Upper Tribunal may be superseded on the ground that there has been a change of circumstances (although, for various technical reasons, the change must now be “since the decision had effect”) and that only a decision of the Secretary of State may be superseded on the ground that it is erroneous in point of law.
108. However, there does not appear to have been any specific provision in the 1975 Act or in Section D of Part IV of the Social Security Adjudication Regulations 1986 (SI 1986/2218) as to the date from which a review on the ground of change of circumstances should have been effective in an industrial injuries case. In contrast, supersessions under the SSA 1998 are normally prospective (see section 10(5)) and none of the exceptions in regulation 7 of, or Schedule 3A to, the 1999 Regulations appears to allow a supersession for change of circumstances to take effect before the date of the change. (Section 9 and regulation 3 make provision for retrospective revisions but there is no power to revise a decision of the First-tier Tribunal and, in any event, none of the grounds seems relevant in the present case. In particular, given that the definition of “official error” in regulation 1(3) makes it plain that it is not such an error to fail to anticipate a binding ruling of the Upper Tribunal or a superior court, it is unlikely that a failure to anticipate retrospective legislation could be an official error.) There was also no equivalent of sections 8(2)(b) and 12(8)(b) of the SSA 1998 in the 1975 Act.
109. In any event, it is clear from the Commissioner’s decision (reported with the decision of the Court of Appeal as R(I) 2/94), that it was common ground that the only possible ground of review open to the adjudication officer in Mr McKiernon’s case was “any relevant change of circumstances since the decision was given”. There was clear authority in a decision of a Tribunal of Commissioners, R(G) 3/58, that ignorance of, or a mistake as to, a material fact did not encompass ignorance of, or a mistake as to, the law (a decision that was even more clearly right following the introduction of the separate power to review a decision for error of law) and the decision of the social security appeal tribunal could not be reviewed for error of law because that power only extended to decisions of adjudication officers. It was therefore not open to the adjudication officer to argue, as Mr Eadie has done in this case, that retrospective legislation amounted to a change of circumstances from the date it is deemed to have taken effect, because that date would have been before the date of the social security appeal tribunal’s decision. Instead, the adjudication officer was driven to argue that the relevant change of circumstances was the coming into force of the retrospective legislation rather than its taking effect at an earlier date.
110. It was not disputed that a change in legislation amounted to a change of circumstances. However, on the Commissioner’s approach, the change of circumstances was not relevant because he accepted an argument advanced by the claimant that the retrospective validation of the five-year time limit did not remove entitlement to benefit that had already been awarded on a claim that had been valid at the time. The Court of Appeal rejected that argument. Crucially for the present case, it then went on to accept the adjudication officer’s argument that there was a change of circumstances when the 1990 Act came into force on 13 July 1990 notwithstanding the retrospectivity of the legislation which, it held, made the decision wrong from the start of the award in 1983.
111. Dillon LJ acknowledged the difficulty but dismissed it shortly. He said–
“The change was retrospective and so there is the argument that that means that there had not been a change, because the effect of it, when it had effect, took it back behind 5 July to the date in 1985 when regulation 25 had originally been introduced. But it seems to me that that is altogether too much of a magician’s sleight of hand to be acceptable in the interpretation of section 104.”
112. Staughton LJ said –
“Mr. Drabble accepts that a relevant change of circumstances in subsection (1)(b) may include a change of the law. That, in my opinion, must be right. There is a contrast between (1)(a), which talks of ignorance of or mistake as to some material fact, and (1)(b), any relevant change of circumstances. But Mr. Drabble submits that the change of law must be such that, although the decision to pay benefit was right when made and it still remains the case that the decision was right when made, the payment of benefit later becomes wrong. He contrasts that with a change in the law which shows that the initial decision to pay benefit was wrong from the start. That, he submits, is not a relevant change of circumstances within subsection (1)(b). For example, a new enactment that benefit shall no longer be payable for industrial deafness would be a relevant change of circumstances. On the other hand, a new enactment that benefit for industrial deafness is not and never has been payable, would not.
To support his argument he refers to the occasions when a higher appellate tribunal declares the law to be different than it was previously thought to be. That, he submits, is not a relevant change of circumstances affecting cases which had previously been decided and in which there has either been no appeal or all avenues of appeal were exhausted. I am inclined to accept the submission that in such a case there is no relevant change in circumstances; merely a higher court has taken a different view of the law to that previously accepted. But I see no reason why the enactment by Parliament in a statute of a retrospective change in the law should not be a relevant change of circumstances.
There is a dictum to that effect in an old case concerning death grant in 1958, with the reference R(G) 3/58. There a widow had failed to obtain payment of death grant within time, and under the regulations her right to payment was extinguished. Later the regulations were amended so that the right to death grant was no longer extinguished by lapse of time. She claimed that the new regulations were retrospective and they were also a relevant change in circumstances under the regulations enforced at that time, which apparently used the same wording. In the event, a tribunal of Commissioners held that the new regulations were not retrospective, so that what follows was not essential to the decision. But they said in paragraph 10:
“We are of the opinion that if regulation 3 was retrospective in its operation, the coming into force of that regulation would be a ‘relevant change of circumstances since the decision was given’ within the meaning of regulation 18(1)(b) of the National Insurance (Determination of Claims and Questions) Regulations, 1948 and would entitle the claimant to have that decision reviewed.”
Since then, the wording that was apparently in the regulations in those days has found its way into the Act of Parliament in section 104(1) of the Social Security Act 1975. It may perhaps be a little far‑fetched to say that Parliament is deemed to have been aware of the view that was taken of the meaning of those words when the same language was used in the 1975 Act. However that may be, in my opinion the words comprehend the kind of change of circumstances that has occurred in this case, and I too would allow this appeal.”
113. Waite LJ agreed.
114. What was not considered in McKiernon was any argument that, if the relevant change of circumstances was the coming into force of the relevant provisions of the 1990 Act, it was implicit that the review on the ground of change of circumstances could be effective only from that date so that the Act merely operated prospectively in any case where an award had been made by a social security appeal tribunal. The claimant’s argument was that his award could never be reviewed in the light of the 1990 Act. The Secretary of State appears to have assumed that his review was retrospective in its effect, but no detailed argument appears to have been advanced in support of the assumption. Neither party argued in the alternative that the award could be reviewed but only prospectively, leaving the claimant with disablement benefit in respect of the period from 5 October 1983 until 12 July 1990. (We observe that, had Mr McKiernon in fact been paid the money due in consequence of the award made on 5 July 1990, that sum would not have been recoverable from him in the light of the subsequent review, because there would have been no misrepresentation or failure of disclosure by the claimant (see section 53 of the Social Security Act 1986, which was a forerunner of section 71 of the Social Security Administration Act 1992)). That approach would not have prevented the Act from acting retrospectively where there had not been a decision made on appeal because the adjudication officer could still have reviewed a decision of an adjudication officer for error of law under section 104(1A) of the 1975 Act on the basis of the retrospective legislation.
115. In any event, we are satisfied that the changes to the legislation justify a different analysis of both retrospective legislation and case law from that adopted by the Court of Appeal in McKiernon. We do not doubt that there is a change of circumstances when retrospective legislation comes into force but, in our judgment, the legislation, being retrospective, is also deemed to have taken effect from an earlier date and so can alter the circumstances obtaining at the date of an earlier decision of the Secretary of State. Equally, although we do not doubt that the effect of a binding decision on the law is to state the law as it has always been, the making of the decision may also need to be treated for the purposes of social security adjudication as a change of circumstances insofar as it affects the understanding of the law because otherwise, where an award of benefit has been made for an indefinite period by the First-tier Tribunal rather than the Secretary of State, it would not be possible to supersede the decision even prospectively so as to give effect to the binding decision.
116. Thus, where there is an appeal against a decision given before the retrospective legislation comes into effect or before a material decision of a superior court is given, the appellate body must give effect to the retrospective legislation or the new decision because it is part of the circumstances treated as obtaining at the time of the Secretary of State’s decision. However, if there is no such appeal and the claimant has an award made by a tribunal rather than the Secretary of State so that a supersession on the ground of error of law is precluded, the decision of the tribunal may be superseded prospectively on the ground of change of circumstances. This applies whether the legislation or binding decision is favourable to, or adverse to, a claimant.
117. We therefore accept the Secretary of State’s argument on this point. Absent section 3 of the HRA 1998, section 12(8)(b) of the SSA 1998 does not assist the claimants if, contrary to our view, the 2013 Act is fully retrospective.
Third issue - section 3 HRA and ‘reading down’
118. This issue arises only if our conclusion on the first issue is wrong. The arguments under this issue have to be based on two premises. The first is that on ordinary, non-HRA canons of construction, the 2013 Act does take retrospective effect “for all purposes” and those effects were “circumstances obtaining” at the time of the Secretary of States’ decisions under appeal to the First-tier Tribunal. The second is that, as has been found in Reilly No.2, those consequences breach the claimants’ rights under Article 6 of the Convention as persons who had already made appeals before the 2013 Act was enacted. The issue to be addressed is whether either the 2013 Act or the 1998 Act can be read in such a way as to avoid this breach of Article 6.
119. In respect of the 2013 Act, in our judgment such a reading can be given and ought to be given under section 3 of the HRA. The Secretary of State’s position was that to do so would fundamentally run against the grain of the 2013 Act such that to read it down would be legislating rather than interpreting.
120. We do not accept this. We were taken to a considerable body of caselaw on the inter-relationship between sections 3, 4 and 6 of the HRA and the point at which the strong interpretive obligation under section 3 has to give way to accepting Parliament’s intent. Thus in Re S and others [2002] UKHL 10, Lord Nicholls (at paragraphs 37-42) refers to section 3 as being a “powerful tool whose use is obligatory”, its use not being “dependent on the existence of ambiguity” but that an interpretative “meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment”. In Ghaidan –v- Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557, Lord Nicholls referred to the “interpretative obligation decreed by section is of an unusual and far-reaching character” and may require the court “to depart from an unambiguous meaning” the legislation would otherwise bear”, and he went on (in paragraphs 31-33):
“….once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of section 3 something of a semantic lottery. If the draftsman chose to express the concept being enacted in one form of words, section 3 would be available to achieve Convention-compliance. If he chose a different form of words, section 3 would be impotent.
121. Section 3 is thus the “primary remedial measure and a declaration of incompatibility under section 4 an exceptional course”: per Lord Bingham at paragraph 28 in Sheldrake –v- DPP [2004] UKHL 43; [2005] 1 AC 264.
122. Applying these principles to the 2013 Act we consider it must be interpreted so as to ensure that it does not have the retrospective effect for which the Secretary of State contends and which would otherwise give rise to a breach of the claimants’ Article 6 rights. The effect can be achieved, for example, by reading in the words at the start of section 1(1) of the 2013 Act “Save where an appeal had already been made or had already been decided under section 12 of the Social Security Act 1998 before this Act came into force,”.
123. The Secretary of State’s objection to doing this is that, in his submission, it runs against the grain of the 2013 Act or disturbs a cardinal feature of that Act. We do not accept this. As we have already shown, the mischief to which the Act was addressed was persons who had not already appealed adverse decisions and who would otherwise benefit from Reilly and Wilson because of section 27 of the SSA 1998 having no application. Our “reading in” does not disturb the Act affecting those claimants. Moreover, as we have explained, there is no clear and specific wording in the 2013 Act that expressly applies its provisions to people who have already appealed. In these circumstances, the strong obligation on us under section 3 of the HRA requires us to “read down” the 2013 Act so as to avoid breaching the claimants’ Article 6 rights.
124. We accept that Parliament can legislate incompatibly with the Convention, but it is to be presumed not to do so by oversight and, in our judgment, neither the language of the Act, nor its context nor the background revealed by the Explanatory Notes shows a sufficiently clear intention to prevent the operation of section 3.
125. However, if we are not only wrong in relation to issue 1 but are also wrong about reading down the 2013 Act under section 3 of the HRA 1998, we do not consider that the claimants can be assisted by reading section 12(8)(b) of the SSA 1998 down under section 3 of the HRA 1998. As is made clear by Mrs Justice Lang in Reilly No.2, the Convention does not outlaw all retrospective legislation and so there can be no justification for reading section 12(8)(b) of the SSA 1998 so as to render all such legislation ineffective. Whether, and to what extent, a particular piece of legislation is to be applied retrospectively in the light of section 3 of the HRA 1998 is solely a question of the construction of that piece of legislation. We therefore think that Mr Jones was right to concentrate his fire primarily on the 2013 Act.
126. Thus, section 3 of HRA 1998 provides an alternative ground for us reaching the same conclusion in these appeals as we reach as a result of our view on the first issue.
The reasoning and conclusions of the minority on the first to third issues
127. I do not agree with the conclusion reached by the majority on issues 1 and 3 and so the issues that are determinative of these appeals. I agree with the conclusion on issue 2 but have reasoned it differently. My reasons follow. I acknowledge that I am repeating some of what is said in the majority decision but I have done so with a view to enabling the reader to follow my reasoning without going back to earlier paragraphs.
128. We sought to frame the issues in directions made on 31 January 2014 in the following terms:
“Assuming that the 2013 Act is retrospective, and putting to one side the arguments arising in the [Reilly No 2] judicial review, a discrete legal issue arises as to how the 2013 Act is to be read with sections 8(2)(b) and 12(8)(b) of the Social Security Act 1998.
Put shortly, in the context where the claimant “won” below because the First-tier Tribunal followed either the High Court’s or Court of Appeal’s decision in Reilly and Wilson (as the tribunal was then as matter of law bound to do), in what sense did it err in law by not taking account of the 2013 Act when it was prohibited by section 12(8)(b) from taking into account “any circumstances not obtaining at the time when the decision appealed against was made”?
This may apply also to those appeals where the claimant “lost” below ….[DB’s case], because it may be argued that the First-tier Tribunal erred in law in not following the High Court’s or Court of Appeal’s decision in Reilly and Wilson, and the issue would then arise whether that error of law could be overset by the 2013 Act when that Act did not as a matter of fact exist “at the time when the decision appealed against was made”.”
129. We therefore framed the issues on an assumption that the 2013 Act was fully retrospective. Our focus was on whether for the purposes of applying section 12(8)(b) of the SSA 1998 the retrospective legislation rewrote history by providing that a circumstance obtaining at the date on which a sanction decision that had been appealed was made was the existence of valid regulations when in fact as at that date the decisions of the Court of Appeal and the Supreme Court meant that that was not the case.
130. Matters moved on. For the reasons explained we have concluded that neither the Supreme Court’s decision in Reilly and Wilson nor Mrs Justice Lang’s judgment in Reilly No 2 prohibit us from deciding the extent of the retrospective effect of the 2013 Act as well as its impact on section 12(8)(b) of the SSA 1998.
131. Section 12(8)(b) of the SSA 1998 is a part of the statutory background against which the 2013 Act was enacted. So its existence, effect and how it would operate as a result of the possible retrospective reach of the 2013 Act is relevant to a determination of the extent of its retrospective effect.
132. The position before and so ignoring the effect of the 2013 Act. The effect of sections 8(2)(b) and 12(8)(b) of the SSA 1998 is to focus the attention of the decision maker on the “circumstances obtaining” at a particular date. On an appeal from a decision of the Secretary of State (made by a Departmental decision maker) the tribunal stands in the shoes of that original decision maker and can make any decision that he could have made but, in doing so, section 12(8)(b) picks up and repeats section 8(2)(b) which fixes the issues of fact and law that can be taken into account to those existing at the time that the relevant decision was made by that Departmental decision maker on behalf of the Secretary of State.
133. The effect of a binding higher court’s decision on the law is to state the law as it has always been. See Lord Nicholls In re Spectrum Plus Ltd [2005] UKHL 41; [2005] 2 AC 680 at paragraphs 4-7 and 34.
134. Absent the 2013 Act, therefore, the legal effect of the Court of Appeal’s and the Supreme Court’s decisions in Reilly and Wilson was that the 2011 Regs were of no legal effect and that determination of what the law was, and had always been, (i.e. that the 2011 Regulations were invalid) was a “circumstance obtaining” at the time of the Secretary of State’s sanction decisions under appeal in these three cases.
135. Enter section 27 of the SSA 1998. On its face it is not an easy section to follow. It is directed to the effect of a decision on an appeal to the Upper Tribunal or to the court (referred to in the section as the “relevant determination” and I refer to it as the “Appeal Court Decision”) which holds that the appealed decision of the adjudicating authority (i.e. the Secretary of State) - which I shall refer to as the Authority’s Appealed Decision - was erroneous in law. It provides that the error of law includes acting on the basis that a purported regulation was valid when the Appeal Court Decision finds that it was not. So it would have applied to the decision of the Court of Appeal that the 2011 Regs were invalid if that decision had been made on an appeal rather than in proceedings for judicial review.
136. Where it applies section 27 of the SSA 1998 provides that a decision of the Secretary of State (the adjudicating authority) relating to a person’s entitlement to benefit in respect of a period before the date of the Appeal Court Decision is to be decided as if the Authority’s Appealed Decision had not been found to be erroneous in law.
137. So section 27 maintains a level playing field between claimants whose entitlement to benefit in respect of the period before the Appeal Court Decision is determined by the Secretary of State (the adjudication authority). But it does not apply to appeals against such decisions that were in existence (and as I understand it could be made in time) on the date of the Appeal Court Decision. Accordingly, those appeals are decided on the basis of the law as determined by the Appeal Court Decision (and thus as it has found the law always to have been).
138. Section 27 of the SSA 1998 therefore makes a distinction between (a) claimants who have not had their entitlem ent to benefit in respect of the period before the Appeal Court Decision decided by the Secretary of State, and (b) those who have and have appealed that decision.
139. Questions arise as to how this background (a) affects the construction of the 2013 Act and thus the assessment of the intention of Parliament in passing it, and (b) if the 2013 Act is fully retrospective (and so applies to existing appellants) how section 12(8)(b) of the SSA 1998 is to be applied, for example, to a claimant who had won his appeal to the First-tier Tribunal before the 2013 Act was on the statute book on the correct basis that, as at the time of the decision under appeal, the law was that the 2011 Regs were ultra vires and/or the notice requiring the claimant to participate in the scheme was invalid.
140. The retrospective extent of the 2013 Act. It was common ground that the correct approach to ascertaining the retrospective effect of an Act is summarised in the following passages from the speech of Lord Mustill in L’Office Cherifien Des Phosphates –v- Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, at 524-525:
“it would be impossible now to doubt that the court is required to approach questions of statutory interpretation with a disposition, and in some cases a very strong disposition, to assume that a statute is not intended to have retrospective effect. Nor indeed would I wish to case any doubt on the validity of this approach for it ensures the courts are constantly on the alert for the kind of unfairness which is found in, for example, the characterisation as criminal of past conduct which was lawful when it took place, or in alterations to the antecedent national, civil or familial status of individuals. Nevertheless, I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule…what ought to be analysed is the statute itself.
….I…. prefer to proceed directly to the ascertainment of the intention which Parliament intended section 13A to achieve, by way of reference to the following statement by Staughton L.J in Secretary of State for Social Security –v- Tunnicliffe [1991] 2 All E.R. 724…:
“In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more its is to be expected that Parliament will make it clear if that is intended”
Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say.”
141. The question for us is whether applying that approach based on unfairness or degrees of unfairness a distinction can be made between classes of claimants in determining the retrospective effect of the 2013 Act. The classes identified were:
(a) those who had challenged a sanction decision by an appeal to the First-tier Tribunal before the date the 2013 Act came into effect (“Appellants”) and
(b) all others who were or who might become the subject of a sanction decision.
These classes mirror the distinction made by section 27 SSA 1998 in respect of the impact of an Appeal Court Decision. Although not expressly mentioned, and irrelevant on my analysis, Appellants would logically include claimants who had been sanctioned and appealed in time although after the date on which the 2013 Act came into effect.
142. The argument was that such a distinction should be made with the result that Appellants were not affected by the 2013 Act. In short, it was argued that the unfairness that caused Lang J to declare that the 2013 Act was incompatible with Article 6 is so unfair that it founds the view (not argued before her) that such declaration is unnecessary because Appellants are not affected by the retrospective effect of the 2013 Act as the words used by Parliament cannot have been intended to mean what they might appear to say (see the end of the citation from the speech of Lord Mustill).
143. If this argument was correct it would mirror the Parliamentary intention underlying section 27 of the SSA 1998 because claimants who had not appealed would have their sanction decisions determined on the basis that the 2011 Regs were valid and Appellants would have their appeals against sanction decisions determined on the basis that the 2011 Regs were invalid (as found by the Court of Appeal and the Supreme Court). No-one suggested that section 27 SSA 1998 applied.
144. I would like to pay tribute to the presentation of the arguments advanced in support of the conclusion that the 2013 Act is not “completely retrospective” because it does not affect Appellants. However, I am not persuaded by them.
145. In my view, the language of the 2013 Act clearly provides that the 2013 Act is “completely retrospective” and there is nothing in the material that is admissible as an aid to its construction or in the legal background against which it was passed that indicates that Parliament did not intend this result or did not make that intention sufficiently clear.
146. Before returning to the language of the 2013 Act, I turn to consider the only admissible extra statutory material to which we were referred, namely the Explanatory Notes. Paragraphs 42 to 48 are cited in the reasoning of the majority. The following earlier paragraphs also merit citation (with my emphasis):
“1. These explanatory notes relate to the Jobseekers (Back to Work Schemes) Bill as introduced in the House of Commons on 14 March 2013. They have been prepared by the Department for Work and Pensions in order to assist the reader of the Bill and to help inform debate on it. ----------------
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND
3. The Jobseekers (Back to Work Schemes) Bill is necessary to preserve the position under legislation relating to employment programmes, such as the Government’s ‘Work Programme’, which has been the subject of an adverse Court of Appeal judgment, the effect of which would be that the Government would incur a liability of up to an estimated £130 million in repaying claimants who have been sanctioned under these programmes and not being able to impose sanctions for past failures where decisions have been stockpiled. The Bill secures that the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (S.I. 2011/917 - the ‘ESE Regulations’), relating to participation in these employment programmes, are effective and provides that notices served under those Regulations informing claimants of requirements as to participation and about consequences of failing to meet requirements, were effective.
4. Under the ESE Regulations, failures to comply led to non-payment of Jobseekers Allowance for periods of 2, 4 or 26 weeks (depending on the number of failures).
5. The ESE Regulations were quashed by the Court of Appeal on 12 February 2013 in the case of R (on the application of Reilly and Wilson ) vs Secretary of State for Work and Pensions ([2013] EWCA Civ 66) on the ground that the Regulations did not contain an appropriate description of the Employment, Skills and Enterprise Scheme ("the ESE Scheme"). The Court also held that the notices sent to claimants advising them that they were required to take part in a programme within the ESE scheme did not comply with the requirements of regulation 4 of the ESE Regulations. The effect of the Court's judgement is that the Department for Work and Pensions had no right to impose a sanction on claimants who had failed to meet their requirements. The Court nonetheless upheld the general policy principle of the employment programmes comprised in the ESE regulations and also ruled that they did not breach Article 4(2) of the European Convention on Human Rights (prohibiting forced or compulsory labour).
6. The Bill will affect claimants where sanctions have been applied for failures to comply with the ESE Regulations. It also affects cases where the claimant has failed to comply with a requirement of the ESE Regulations but a decision to impose a sanction has not yet been taken. Once enacted, it will ensure that any such decisions cannot be challenged on the grounds that the ESE Regulations were invalid or the notices inadequate, notwithstanding the Court of Appeal’s judgment. Therefore benefit sanctions already imposed or to be imposed, will stand. The accompanying impact assessment details the estimated cost to the taxpayer if the provisions in the Bill are not enacted.
BILL OVERVIEW
9. The Bill has been introduced to avoid the need to repay claimants who have been sanctioned for failure to comply with requirements under the ESE Regulations and to be able to impose sanctions where decisions have been put on hold since the decision of the High Court or Court of Appeal. If this were to happen, the cost to the taxpayer is estimated to be up to £130 million.
10. The effect of the Bill will be that any decision to sanction a claimant for failures to comply with the ESE Regulations cannot be challenged on the grounds that the ESE Regulations were invalid or the notices given under them inadequate, notwithstanding the Court of Appeal’s judgment. This is to ensure that the Government is not faced with the situation whereby jobseekers previously sanctioned (or to be sanctioned) for non-compliance under the ESE Regulations can receive an unfair advantage over compliant claimants.
FAST-TRACK LEGISLATION
Why is fast-tracking necessary?
13. ----------------------. If permission to appeal to the Supreme Court is not granted, or the Supreme Court finds against the Department, primary legislation would be needed to ensure that the Government does not have to make repayments to (and can impose sanctions where decisions have been stayed, on) all claimants who failed to take part in programmes comprised in the ESE Regulations. Fast-tracking the Bill is necessary in order to provide certainty and thus safeguard the Government’s position.
14. It is the Department’s view that emergency primary legislation is necessary. As soon as the litigation ends the Government would incur the above mentioned liability. The only way to ensure that the Department does not have to make any sanction repayments and can impose sanctions where decisions have been stockpiled, is to press ahead with emergency legislation.
To what extent have interested parties and outside groups been given an opportunity to influence the policy proposal?
17. The legislation does not change the underlying policy. It restores the policy intention of the ESE Regulations and the intended effectiveness of the notices given under them. There is therefore no need for an external consultation to be considered.
Has an assessment been made as to whether existing legislation is sufficient to deal with any or all the issues in question?
20. Yes. The existing powers to make secondary legislation do not allow the Department to make retrospective provision that is comparable to what was contained in the ESE Regulations, or is an altered version of what was contained in the ESE Regulations, or that would validate notices given under them. There are also no powers that could be relied on to enable the Department to withhold refunds once the litigation process has ended. Nor are there other powers the Department could rely on to continue staying sanctions decisions or appeals after that point.
COMMENTARY ON CLAUSES
Clause 1
26. Subsection (1) provides that the ESE Regulations are to be treated for all purposes as regulations that were made under section 17A of the Jobseekers Act 1995 and other provisions cited in the preamble to the regulations and that came into force on 20 May 2011 (the day specified in the regulations). This gives effect to the ESE Regulations despite the Court of Appeal judgment.
29. Subsection (4) provides that a notice given for the purposes of regulation 4 of the ESE Regulations (requirement to participate and notification) is to be treated as a notice that complies with regulation 4(2) (c) (details of what a person is required to do by way of participation in the scheme) if it referred to the ESE Scheme or a programme treated as part of it. This means that where the notice to a participant gave details as to what the participant is required to do which did not meet the degree of detail required by the Court of Appeal judgment, the notice is nonetheless regarded as valid.
FINANCIAL EFFECTS OF THE BILL
Impact on Government
40. The effect of the Bill is to ensure that the Government does not need to make repayments where sanctions were imposed for failures to comply with the ESE Regulations and can impose sanctions where decisions have been stockpiled. It restores the policy intent. The Bill is intended to save unforeseen welfare expenditure of up to £130 million.
Impacts on Individuals
41. The impact upon individuals is that JSA claimants who have not complied with requirements under the ESE Regulations will not be repaid sanctioned benefits as they might expect following the judgment or may have a sanction imposed. The Bill effectively restores the status quo to a situation before the High Court and Court of Appeal judgments. Once the Bill is enacted, claimants who might have appealed against previous sanction decisions on the grounds upheld by the Judicial Review will be unable to do so. Sanctions imposed under the impugned legislation can continue and sanctions decisions currently stayed can be made in accordance with the original intent of the legislation. This is to ensure that the Government is not faced with the situation whereby jobseekers who failed to comply with their requirements and were sanctioned under the quashed ESE Regulations can receive an advantage over claimants who have complied with their requirements and is necessary to safeguard the economic interests of the state.”
147. As appears from the citation the Notes were prepared by the DWP. So the authors of the assessment recorded in paragraph 20 and the Notes as whole would have been familiar with the background of sections 8, 12 and 27 of the SSA 1998 and the point that section 27 did not apply. On my reading of the cited paragraphs a reader who knows of the approach taken in section 27 of the SSA 1998 and the reader who does not can be left in no doubt that these Notes are identifying an intention to avoid payment of jobseekers allowance to which all and any claimants who had been or may be sanctioned would have been entitled but for the sanction.
148. In my view, Parliament was addressing a much more general situation by section 27 of the SSA 1998 Act and it cannot be said that its existence informs the intention underlying the 2013 Act. Further, the point that the authors of the Notes would be familiar with the differentiation between claimants who had and had not appealed made by section 27 of the SSA 1998 but do not mention it in the Notes is a pointer in favour of the view that the intention was not to adopt a similar course because if it had been it would have been expressly mentioned and addressed in the Notes and the 2013 Act.
149. The reference to the estimated liability of up to £130 million in repaying claimants “who have been sanctioned” cannot in my view be read as excluding any category or class of sanctioned claimant and the same applies to the phrase in the penultimate sentence of paragraph 41 “sanctions imposed under the impugned legislation” and other similar references highlighted in bold in the citation.
150. In my view, in its context the passage in the third sentence of paragraph 41 “Once the Bill is enacted, claimants who might have appealed against previous sanction ---- will be unable to do so” does not indicate that it was intended that claimants who had already appealed would be in a different position to other claimants who had been sanctioned.
151. In short, in my view read as whole the Notes up to paragraph 41 show quite clearly that the intention expressed in the last sentence of paragraph 41 applied to all jobseekers who had failed to comply with their requirements and were sanctioned under the quashed ESE Regs.
152. Against that clear background does the manner in which the Notes dealt with the ECHR found a different conclusion? Appellants (in the sense of claimants who had appealed) are not expressly mentioned but to my mind this does not mean that there was not a positive intention to include them, or that there was an intention to treat them differently or that they were overlooked.
153. In my view, it is wrong to isolate paragraphs 45 and 46 and when they are read with paragraphs 43, 44, 47 and 48 it is clear that it was thought by those who drafted the Notes that any interference with Article 1 of Protocol 1 and Article 6 is justified for similar reasons.
154. Paragraphs 45 and 46 cover situations in which the view expressed is that Article 6 is not engaged (because no legal claim has been brought or no sanction made). However, paragraph 44 is addressing cases where a claimant might argue that there was interference with his Article 6 rights as well as his property rights under Article 1 of Protocol 1. It is addressing cases where a claimant’s Article 6 rights are or might be engaged and so it covers Appellants and the approach taken is that, any interference with engaged Article 6 rights (as with property rights under Article 1 of Protocol 1) is justified (see paragraphs 47 and 48).
155. So, in my view, the Notes address engaged rights and thus those of Appellants under Article 6 (and of all claimants under Article 1 of Protocol 1) on the basis that they are justified. As I understand it, whether the authors of the Notes were right about this is something the Court of Appeal will be considering. But whether right or wrong the approach to the ECHR in the Notes conforms with the clear intention expressed earlier in them that the 2013 Act was directed to all claimants.
156. The linkage between Article 1 Protocol 1 and Article 6 and so engaged rights also provides a strong pointer that the view of Parliament was that Appellants would not suffer any additional or unjustified unfairness when compared with other claimants. When assessed by reference to the purpose of safeguarding the economic interests of the state and the restoration of what Parliament had originally intended that view is obviously justified and has considerable force and so, in my view, it cannot be said that any “add on” unfairness for Appellants makes the retrospective effect of the 2013 Act on them so unfair that Parliament cannot have intended what it says in the 2013 Act.
157. Most importantly, the language of the 2013 Act points firmly and clearly to the conclusion that Parliament intended its retrospective effect to apply to everyone. One starts with the wording “for all purposes” in section 1(1) of the 2013 Act. In my view, this means what it says and so it does not envisage that there will be any exceptions. This view is supported by the mandatory and blanket terms of sections 1(2) to (10). It is also supported by section 1(12) which is clearly directed to all penalties imposed before the 2013 Act was passed. To my mind, section 1(13) is a general saving provision that does not carry any implication that persons who had appealed were to be in a different position to those who had not.
158. The impact and application of section 12(8)(b). The Secretary of State’s position is that the effect of the 2013 Act on Appellants corresponds with that of a decision of the court that changes what was previously thought to be (or had been established by a binding decision of a lower court as being) the law at the time that the decision under appeal was made. This is because he submits that the 2013 Act provides that on appeals the validity of the 2011 Regs is to be treated as one of the circumstances obtaining at the time that the Secretary of State imposed the sanction. This is equivalent to what the position would have been if the Supreme Court had overruled the Court of Appeal and found that the 2011 Regs had been validly made, because that would have determined what the position had always been, although this had not been understood.
159. The Secretary of State’s oral argument before us modified the argument he had presented in writing. In my view that modification was needed and correct. In his written argument he had advanced an argument that the word “circumstances” in sections 8 and 12 of the SSA 1998 meant factual circumstances and not changes in the law or changes in legal circumstances. But that argument is not sustainable in the face of:
(a) what was said In re Spectrum Plus and the effect of section 27 of the SSA 1998, which found the view that “circumstances” must cover a “change in the law” brought about by case law, and in any event the legal result that Regulations are valid or invalid could be classified as a fact, and
(b) the view of the Court of Appeal in Chief Adjudication Officer –v- McKiernon reported as R(I)2/94, that the coming into force of retrospective legislation was a relevant change in circumstances.
160. Before us Mr Eadie argued on behalf of the Secretary of State that “circumstances” can include legal circumstances and that as the 2013 Act provides that the 2011 Regs (and some notices given under them) are to be treated as valid for all purposes it has the effect that whenever and however the issue of their validity is relevant they must be so treated.
161. Mr Jones argued that McKiernon was binding authority that the passing of retrospective legislation (and so the 2013 Act) was or brought about a “change” in circumstances and so authority that retrospective legislation and its consequences were not circumstances “obtaining” within section 8 and 12 of the SSA 1998 at the times that decisions on sanctions were made by the Secretary of State before the 2013 Act came into effect. I do not agree.
162. The headnote of the report of McKiernon is as follows:
“The claimant made a claim for disablement benefit for occupational deafness which was originally disallowed because his claim was made more than five years after the last date on which he worked in a prescribed occupation. The Court of Appeal decided (see McKiernon v. Secretary of State for Social Security, 26 October 1989, Times 1 November) that regulation 25(2) of the Social Security (Industrial Injuries)(Prescribed Diseases) Regulations 1985, which imposed the absolute five year time limit, was ultra vires. On 5 July 1990 a social security appeal tribunal found that the claimant has shown good cause for late claim and awarded him disablement benefit for life. On 13 July 1990 paragraph 4 (3) of schedule 6 to the Social Security Act 1990 validated regulation 25 with retrospective effect. An adjudication officer then reviewed the decision of the tribunal and disallowed the claim to benefit. The Commissioner allowed the claimant’s appeal on the basis that paragraph 4(3) restored the validity of regulation 25(2) but did not effect cases where a decision had been given, before 13 July 1990, that a claim was timeous and valid.
On 8 July 1993 the Court of Appeal (Dillon, Staughton and Waite LJJ) allowed an appeal by the adjudication officer and
Held that:
a retrospective change in law is a relevant change of circumstances within section l04(l)(b) of the Social Security Act 1975 (now section 25(1)(b) of the Social Security Administration Act 1992). The adjudication officer was accordingly entitled to review the decision of the tribunal awarding benefit to the claimant.”
163. So what the Court of Appeal was addressing in McKiernon was whether the passing of the retrospective legislation was a relevant change in circumstances that triggered a power to review. It found that it was. That is unsurprising because on any view it changed the law. The Court of Appeal restored the decision on review which had disallowed the benefit in the following terms:
“Disablement benefit is not payable from and including 3 October 1983 because the period between the claim made on 15 July 1986 and the latest date before then on which the claimant worked in an occupation prescribed in relation to occupational deafness, was 31 December 1980, was more than five years”.
164. This shows that the whole claim was disallowed. The officer therefore treated the relevant regulations as ones that had always been valid and so barred Mr McKiernon’s claim (and so effectively reinstated the original decision). The Court of Appeal disagreed with the gravamen of the decision of the Commissioner (who had allowed an appeal against the review) which Dillon LJ described as follows:
“The Commissioner ended that paragraph;
Even though payment of benefit is a continuing matter, the validity of the claim can and must be judged only once
I think the gravamen therefore, of his decision is that if the claim is validly decided in accordance with the law as it was on that date, to be timeous and valid, then a subsequent retrospective change of the law does not invalidate that decision.”
165. The Court of Appeal therefore determined that the Commissioner had been wrong to conclude that the claim can and must be judged only once and so the decision of the tribunal based on the earlier conclusion of the Court of Appeal that the Regulations giving an absolute time limit were ultra vires could not be reviewed. On this round of the litigation in McKiernon the Court of Appeal did not have to address whether the impact of retrospective legislation is to be taken into account on an appeal or further appeal but the rejection of the approach taken by the Commissioner is an indicator that they would have concluded that it should be.
166. The point about change of circumstances related only to the trigger of the power to review. Dillon LJ dealt with it in the following terms:
“------------ it seems to me that, whereas a change by mere judicial decision could well be said to be not within (1) (b), a change by statute definitely effects a change and is not merely declaratory of what the position previously was.
One has, of course, to face the fact that this was a retrospective change. But looking at the position on the date on which the appeal tribunal made its decision; that is to say 5 July, the law which the tribunal had to apply was that which had been laid down by this court. But on 13 July and thereafter the law was different as a result of paragraph 4(3) coming into force. Therefore there had been a change of circumstances. The change was retrospective and so there is the argument that that means that there had not been a change, because the effect of it, when it had effect, took it back behind 5 July to the date in 1985 when regulations 25 had originally been introduced. But it seems to me that that is altogether too much of a magician’s sleight of hand to be acceptable in the interpretation of section 104.”
167. So the issue was whether the passing of the retrospective legislation was or brought about a relevant change of circumstances and not what the effect of that change was when it fell to be considered in connection with the substantive decision.
168. It follows that the ratio of this decision in McKiernon is not authority for the proposition advanced by Mr Jones and indeed the upholding of the review decision favours the argument advanced by the Secretary of State.
169. In my view, that argument of the Secretary of State is soundly based on the language of the 2013 Act and is correct. It means that on an appeal to the First- tier Tribunal or on a further appeal the appellate tribunal or court must treat the 2011 Regs as being valid from the date they were made and so their validity is a “circumstance obtaining” at the date that the Secretary of State made his decision and the law (although the First-tier Tribunal and the parties could not have known it at the time) when the First–tier Tribunal decided the appeal.
170. Section 3 HRA and ‘reading down’. I approach this on the basis that absent reading down under section 3 HRA the 2013 Act results in a breach of the rights of Appellants under Article 6 of the Convention and so the issue to be addressed is whether either the 2013 Act or the 1998 Act can be read in such a way as to avoid this breach of Article 6.
171. We were taken to the case law referred to in the reasoning of the majority on this issue.
172. Applying the principles set out in that case law I have concluded that an interpretative approach to avoiding the breach of Article 6 found to exist by Lang J is not open to judges because it would fundamentally run against the grain of what I have found to be the very clear intention of Parliament in enacting the 2013 Act and so would amount to legislation and not interpretation.
Unanimous decision on the fourth to seventh issues
Fourth issue - section 12(2)(a) Tribunals, Courts and Enforcement Act 2007
173. This is a further, alternative issue, the arguments under which only apply in the cases of TJ and TG because they ‘won’ before the First-tier Tribunal and the Secretary of State is seeking to have the First-tier Tribunal’s decisions set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).
174. The argument has to proceed on the basis that claimants fail on the arguments that have gone before. In other words, the 2013 Act does have the retrospective effect contended for by the Secretary of State and neither that Act nor the SSA 1998 can be read, even under section 3 of the HRA 1998, so as to avoid this result, and so the most that can be obtained is a declaration of incompatibility. The argument is that we should nonetheless use our discretion under section 12(2)(a) of the 2007 Act – “may (but need not) set aside the decision of the First-tier Tribunal” – so as not to set aside the favourable tribunal decisions for TJ and TG as to do otherwise would mean we were breaching their Article 6 rights (given Reilly No. 2).
175. This argument is without merit. It has to fail on the very premise on which it arises. That premise is that the 2013 Act is to the binding effect on us that it does retrospectively overset the First-tier Tribunals’ decisions and that the Act’s breach of Article 6 of the Convention cannot be removed. A declaration of incompatibility “does not affect the validity, continuing operation or enforcement of” the 2013 Act (section 4(6)(a) of the HRA). Consistent with this, section 6(2) of the HRA is to the effect that a court or tribunal will not act unlawfully by acting in a way which is incompatible with a Convention right but where it is bound to do so by virtue of primary legislation that cannot be read differently. The sum of all of this, in our judgment, is that for us to use the discretion in section 12(2)(a) of the 2007 Act to circumvent this would be to ignore the binding effect of both the 2013 Act and section 4(6)(a) of the HRA 1998. If we did that then we would be using a judicial discretion to act unlawfully, which cannot be a proper exercise of that discretion.
Fifth issue - regulation 4 notices
176. The arguments under this heading are premised, as they must be, on the 2013 Act having validated notices that were in fact provided to the claimants in the way provided for by the 2013 Act. In other words, for the purposes of the arguments addressed in this part, the 2013 Act has the effect of making the notices given ones which complied with:
(i) regulation 4(2)(c) of the 2011 Regs (details of what a person is required to do by way of participation in the scheme), if it merely referred to the Employment, Skills and Enterprise Scheme, the Community Action Programme or the programmes described in regulation 3(2) to (8) of the 2013 Regs (including the Work Programme); and
(ii) regulation 4(2)(e) (information about the consequences of failing to participate), if it described merely an effect on payment of JSA as a consequence or possible consequence of not participating.
177. The 2013 Act does not seek to validate any failure to comply with regulations 4(2)(a) and (b) – the need to tell claimants that they are required to participate in the scheme and the day on which their participation will start – but it did not need to do so.
178. We have set out in the Appendix to this decision the three material letters that could or should have been sent to TJ: the WP05 (Work Programme “start notification letter”), the “opportunity letter” and the “appointment letter”. These are standard letters and there were similar letters for those on the CAP.
179. We understand it to be accepted by the parties in TJ and DB that the WP05 letter was a notice that complied with regulation 4(2) of the 2011 Regs as read subject to section 1(3)-(5) of the 2013 Act, save that it is said that on the face of the WP05 there is no specific obligation (such as attending an appointment at a fixed address, date and time) that the claimant could have failed to comply with (per regulation 6 of the 2011 Regs); that obligation only arises under the later appointment letter; but that letter itself does not amount to notice complying with regulation 4. Can, however, the regulation 4(2) notice be contained in more than one document? Broadly speaking, the Secretary of State says it can whilst the claimants say it cannot. They found on the terms of regulation 4(1) of the 2011 Regulations and its use of the phrase “a notice”, which they argue must admit only of a single notice.
180. This is not an issue that was addressed by any of the courts in Reilly and Wilson. It is likely that this was because in Ms Reilly’s case she was never given any written notice at any relevant stage and because in Mr Wilson’s case the written notice he did receive from the Secretary of State (which in its particulars was not significantly different from the relevant WP05 wording), was not followed up with any further written notice from the CAP provider.
181. We agree that a WP05 in the form set out in the Appendix is a notice that complies with regulation 4(2) of the 2011 Regs when read with the 2013 Act. It tells the recipient the day on which his or her participation starts, “From today” (reg 4(2)(b)); it tells the claimant that he or she is required to participate in the Scheme, “you must take part in the Work Programme” (reg 4(2)(a)); given the reference to the “Work Programme”, it details what the claimant is required to do by way of participation (reg 4(2)(c) read with section 1(4)(b) of the 2013 Act); it provides information about the consequences of failing to participate by describing an effect on payments of JSA as a possible consequence of not participating, “your [JSA] could stop for up to 26 weeks if you fail, without good cause, to take part in the Work Programme” (reg 4(2)(e) read with section 1(5); and it specifies that the requirement to participate will continue until the claimant is given notice that their participation is no longer required, “You must take part in the Work Programme until you are told otherwise” (reg 4(2)(d))[6].
182. Left to the authority of the Supreme Court in Reilly and Wilson, the phrase “You must complete any activities that AVANTA ENTERPRISES LTD…tells you to do” in the WP05 would not have provided TJ with “details of what [she was] required to do by way of participation in the Scheme” under regulation 4(2)(c) of the 2011 Regs, and as such the WP05 would not have been a valid notice. However, the 2013 Act amends this effect by holding the WP05 to meet regulation 4(2)(c) simply if it refers to the Employment, Skills and Enterprise Scheme, the CAP or (per regulation 3(8) of the 2013 Regs) the Work Programme.
183. This then leaves the perhaps curious result that, after the 2013 Act, it is difficult if not impossible to see on what basis a claimant could (per regulation 6 of the 2011 Regs) fail to comply with any requirement notified under the WP05 alone as the WP05 does not require the claimant to in fact do anything[7]. To an extent this is just the other side of the coin to the Supreme Court’s finding that the “you must complete any activities the provider tells you to do” did not meet regulation 4(2)(c) because it didn’t give sufficient detail of what the claimant in fact was required to do (and therefore could provide no basis for them failing to do something). It is the later notification of a first appointment with the provider that is the first concrete evidence of something the claimant is required to do (and which they can fail to comply with). On this analysis, if the regulation 4 notice is limited to the WP05 then a claimant can never (as far as we can see) fail to comply with a requirement notified under the WP05, and the sanctions regime would never be effective.
184. This consequence, and the recognition of the need for (some) flexibility in the work for your benefit schemes in Reilly and Wilson, has to be taken into account in applying the terms of the 2011 Regulations. It is trite law that a legislative scheme ought to be construed in a manner which, so far as is possible, is workable, does not lead to absurd results, and where the regulations are consistent with the vires of the scheme as laid down in the parent Act. In the case of the 2011 Regs, section 17A(1), (2) and (5)(d) of the Jobseekers Act 1995 contemplate that by regulations claimants can be required to participate in schemes that are designed to assist them obtain employment, that they may in particular (and to that end) be required to undertake work-related activity, and that appropriate consequence will follow if a participant fails to comply with the regulations. (We deal with good cause later.) A reading of the 2011 Regs which does not enable failure to comply to arise would be inconsistent with section 17A(5)(d).
185. One answer would be to say that the detail of the actual requirements (i.e. those that a claimant may fail to comply with), must be set out in the Secretary of State’s WP05 letter itself and nowhere else. However this is to ignore:
(a) the reality that what a person may be required to do will very often not be known until after the WP05 has been given (e.g. once their particular needs have been identified), which by definition cannot be known at the time of the WP05; and
(b) the fact that by sections 17B and 20E(3)(a) of the Jobseekers Act 1995, Parliament expressly contemplated and legislated for the work for your benefit schemes to be administered by non-governmental organisations. Consistent with section 17B, and under the power provided by section 20E(3)(a), regulation 18 of the 2011 Regs delegates to the providers “any function under regulation 4”. This makes it plain that the regulation 4 notice need not be limited to the Secretary of State’s WP05 and can be given instead by the provider.
186. More importantly, however, the above considerations ignore the effect of regulation 4(3) of the 2011 Regs, which provides that “[a]ny changes made to the requirements mentioned in paragraph (2)(c) after the date on which [the claimant’s] participation starts must be notified to [the claimant] in writing”. The function of making written changes to the details of what a claimant is required to by way of participation in the Scheme is a function of regulation 4 which regulation 18(2)(a) of the 2011 Regs expressly permits a provider to take. In a post 2013 Act reading of regulation 4(2)(c) – where mere reference to, for example, the “Work Programme” is to be read as providing a claimant with details of what he is required to do so as to participate in the Work Programme – it may be difficult on one analysis to refer to changes to the requirements where no meaningful regulation 4(2)(c) requirements have been made. However, in seeking to give effect to the legislative scheme as a whole, in a landscape including the 2013 Act, we consider the better view is that “changes” under regulation 4(3) include the imposition of specific obligations (e.g. attend an interview at a place date and time set out), in place of a generalised requirement to participate in, say, the Work Programme.
187. On this analysis the WP05 in the form set out in the Appendix followed by a specific appointment letter from the Work Programme (or other Scheme) provider ought to comply with regulation 4 of the 2011 Regs. The same is true of the equivalent CAP letters
188. However, it is conceded by the Secretary of State that TJ was never given a WP05 and there is a live issue as to whether she ever received he appointment letter. DB has also raised the question whether he was ever given a WP05. We therefore need to consider whether each claimant was, on the facts of their individual cases, given the notice required by regulation 4 read with the 2013 Act.
Was TJ provided with a notice complying with regulation 4?
189. Answering this question requires further consideration of the facts of TJ’s case.
190. A Personal Adviser (“the PA”) conducted the Work Programme referral interview with TJ on 9 May 2012. The PA cannot recollect the specific conversation she had with TJ on this date but helpfully explains in her witness statement that her standard procedure at such interviews was to explain to claimants that they were being referred to the Work Programme and that they had to participate if they wished to continue receiving JSA. The PA continues that she cannot recall whether TJ raised any objection to being referred, but had she done so the PA would have explained that it was mandatory. In terms of written information provided to TJ, again the PA cannot recollect what in fact happened. However, her practice was to issue the Work Programme referral letter (i.e. the “opportunity” letter) at the referral interview or the clerical WP05 once it had been introduced. It is common ground that a WP05 was not issued to TJ but that she did receive the opportunity letter of 9 May 2012.
191. Although a WP05 is generally relied upon as the regulation 4 notice, the Secretary of State argues that the opportunity letter and the appointment letter that TJ should have received would together have amounted to a notice complying with regulation 4 as read with the 2013 Act.
192. We do not consider that the conclusion we have set out above - that ordinarily if a claimant has received the WP05 the later appointment letter from the provider will constitute a change to the requirements to participate under regulation 4(3) – limits the appointment letter to only being a regulation 4(3) notice and precludes it from being (part of) a notice under regulation 4(1) and (2) of the 2011 Regs. As matter of construction of the 2011 Regs, we reject the argument that the use of “a” requires the notice to be in one document. We bear in mind section 6(c) of the Interpretation Act 1978 – unless the contrary intention appears the singular includes the plural and vice versa – which would not require the notice only to be in one document. The critical issue, moreover, is that the claimant has been notified in writing in substance of the requirements to participate and not the form (one or two notices) in which that written notification takes place: see section 17A(5a) of the Jobseeker Act 1995).
193. The delegation of the Secretary of States’ functions under regulation 4 to work providers under regulation 18 of the 2011 Regs does not, in our judgment, speak against this result. The word “function” plainly covers the work provider (e.g. Avanta) notifying the claimant in writing of all of the regulation 4(2) information, but it also in our view is broad enough to encompass the function of notifying the claimant of part of the regulation 4(2) information. For example, we can see nothing wrong as a matter of law and compliance with regulation 4(2) with the Secretary of State’s WP05 leaving out the “From today” part in the WP05 and leaving it to the provider to notify the claimant in writing of the day on which their participation will start.
194. That leaves us to address whether the “opportunity letter” and Avanta’s appointment letter (if received) comply with regulation 4(2) of the 2011 Regs on the facts of TJ’s case. (It would be an arid exercise for us to consider whether the opportunity letter on its own constitutes such a valid notice given the Secretary of State’s concession detailed above. Nor do we consider there is any need for us to consider the Avanta appointment letter on its own as, on the facts, if received it will fall to be considered with the opportunity letter.)
195. We consider that properly construed the two documents meet all of the regulation 4(2) notice requirements, bar one: the one is regulation 4(2)(d) of the 2011 Regs.
196. It was argued for TJ that even if the letters were read together regulation 4(2)(b) was still not satisfied as TJ was not told the day on which her participation would start. We reject this. Read together we consider the two letters told TJ she was required to participate from 9 May 2012: the day she was referred to the Work Programme. It is then argued that regulation 4(2)(c) was not met. Again, we reject this. The opportunity letter uses the acronym WP but given the reference to the “Work Programme” in the Avanta appointment letter, we consider regulation 4(2)(c) was satisfied when read with section 1(4)(b) of the 2013 Act.
197. The one area where both letters fail is regulation 4(2)(d) and the need to specify “that the requirement to participate will continue until [the claimant] is given notice….that [their] participation is no longer required, or [their] award of [JSA] terminates, whichever is the earlier”. Nothing in either letter deals with participation continuing until given notice that participation is no longer required.
198. The Secretary of State’s argument against this deficit standing against the letters amounting to a valid regulation 4 notice was that it was difficult to understand what prejudice TJ had suffered as a result of this failure. We can see the force of that argument, particularly in a context where the letters did tell TJ to notify the Jobcentre or Avanta of any reasons why she would be unable to attend the Work Programme and if she stopped claiming JSA, and in a context where (as we shall see under the “prior information requirement”) given the mandatory nature of the Work Programme it is difficult to identify the basis on which provision of the regulation 4(2)(d) information would have led TJ to make any representations which could have affected her referral: see JM –v- SSWP (ESA) [2013] UKUT 234 (AAC); [2014] AACR 5).
199. No arguments were advanced by TJ as to why she might have been prejudiced by a failure to comply with regulation 4(2)(d) on the facts of her particular case but we leave this issue open so that, if following a successful appeal against our decision by the Secretary of State her case ever needs to be re-decided by the First-tier Tribunal, she will be able to advance the arguments then.
200. There is, however, a live dispute between the parties as to whether TJ received Avanta’s letter of 14 May 2012. It is accepted by the Secretary of State that if TJ did not in fact receive this letter then the Secretary of State’s decision of 25 June 2012 was wrong as she had not in fact been given a (complete) notice complying with regulation 4(2)(b) or (c) of the 2011 Regulations and/or because she would have had good cause for not attending at Avanta’s address on 21 May 2012 at 9.30am. We understand the Secretary of State to accept that regulation 1(2), which provides that for the purpose of the 2011 Regs “where a written notice is given by sending it by post it is taken to be received on the second working day after posting”, is to be read as providing for the calculation of the date from which the notice is effective, rather than providing for the deemed receipt of the notice. There is generally a presumption that a document that has been sent has been received, but that presumption is rebuttable.
201. In her appeal letter TJ wrote that she had never refused or failed to take advantage of an employment programme and that
“the only correspondence I received was when my children were off school May-June time and I phoned the number provided and explained.”
The Secretary of State read the reference to “correspondence” as a reference to the letter of 14 May 2012 but he read the reference to the children being off school as a matter being advanced as a reason for TJ being unable to keep the appointment on 21 May 2012 and he did not accept that that could be a good cause for her not keeping the appointment because the school half-term was the following week.
202. TJ submits, with force, that this is a misreading of her appeal letter. She accepts that she got the “opportunity letter” but explains that the next letter she got was the decision maker’s request for reasons letter of 6 June 2012 and it was that 6 June 2012 letter she was referring to in her appeal: her children being at home that week as it was the Queen’s Jubilee celebrations. There seems much in TJ’s argument, not least because the wording she used in her appeal letter when her children were off school was being used to identify when she received the letter rather than any interview she had to attend. A potential complication is that a failure to attend the Work Programme on the slightly later date of 29 May 2012 was “allowed” seemingly on the basis that the Secretary of State had satisfied himself that there been no notification of the appointment (page 85). Whether that decision was based on any representations from TJ is unclear.
203. We have no great enthusiasm for TJ’s appeal having to go back to a hearing before the First-tier Tribunal for a fact finding enquiry into, inter alia, whether she in fact received Avanta’s appointment letter where what is in issue is whether JSA is not payable to her for two weeks in 2012, but if the majority were wrong on the first and third issues we reluctantly agree that this issue would need to be remitted to the First-tier Tribunal for determination. However, if that is to happen then we would fully expect the Secretary of State to: (i) send a representative to attend the hearing before the First-tier Tribunal; and (ii) provide a written submission in advance to that tribunal (and TJ) which explains the basis for the decision of 25 June 2012 on page 9 and how it relates to the decision under appeal. We cannot direct TJ to attend such a hearing (if it were to arise), but it would obviously aid the First-tier Tribunal to make its decision, particularly on whether she in fact got the Avanta letter, if she were to do so.
Was DB provided with a notice complying with regulation 4?
204. The point that DB seeks to take, for the first time through arguments made on his behalf by Mr Richards on 19 September 2014, is that it ought to be inferred from the evidence that no WP05 was given to him, and absent the same it ought to be concluded in his favour that no regulation 4 notice was given to him. It is further said that Triage’s appointment letter of 8 May 2012 cannot amount itself to a regulation 4(2) notice (which arguably is correct given what we have said above about the Avanta appointment letter in TJ’s case); though it seems to be accepted that it would have constituted a valid notice of changes under regulation 4(3) of the 2011 Regs if DB had been given a WP05.
205. It is important to appreciate the background against which this issue was raised for the first time. In his appeal to the First-tier Tribunal, DB took no issue at all with whether he had been properly referred onto the Work Programme. His case focussed entirely on past sanctions and his inability to get to Triage’s office in Middlesbrough. In his response to that appeal, the Secretary of State simply asserted that: “On 8/12/11, he was referred to the Work Programme at Triage.” Although an assertion in a submission, given that it was made by an officer of the Department who may be presumed to have looked at records, that mounted to hearsay evidence that there had been a referral. The First-tier Tribunal adopted that assertion in its statement of reasons. On his application for permission to appeal to the Upper Tribunal the welfare benefits adviser at the CAB took no point on whether the WP05 had been given to DB and instead relied, relevantly, on the Court of Appeal’s decision in Reilly and Wilson and “good cause”, both of which are predicated on the WP05 having been given.
206. Nonetheless, further background was supplied by an executive officer of the Department for Work and Pensions (“DWP”) whose witness statement is dated 20 May 2015 and was submitted to the Upper Tribunal with the Secretary of State’s submission on “prior information”. The statement is based on records held by DWP on the Labour Market System (“LMS”) (DB’s Personal Adviser having left the employ of the DWP). It began by explaining that DB had been referred onto the Work Programme on 8 December 2011 when he was aged 26, his most recent award of JSA having started 9 months earlier on 29 March 2011, when DB was 25. However it would seem the reason for his mandatory referral was because DB had been in receipt of JSA for 22 of the previous 24 months. (This is referred to as the class of “JSA Repeaters” in the May 2011 operational guidance for referral to the Work Programme). DB’s eligibility to be so referred was not disputed before us.
207. The witness statement continues by noting that a referral interview was held with DB on 8 December 2011 but as the “conversations have been cleared from that time” there was no record of what forms were issued. The witness statement therefore relies on the general practice of Personal Advisers at the time and says DB would have been issued with a WP01 leaflet and the WP05 referral notice.
208. In response, DB submitted a witness statement in which he attested to being referred to the Work Programme when he went to the Jobcentre towards the end of 2012 (which we assume was a simple mistake for 2011). He asked the Jobcentre whether he could be sent to Avanta in Stockton but (contrary to what he said in his appeal letter to the First-tier Tribunal) the Jobcentre told him they had no choice where he was sent. As for what he was provided with at this interview, all DB says is: “I do not remember whether I was handed any paperwork during this interview”.
209. It was in that context that Mr Richards advanced his argument that it should be inferred from the evidence that no WP05 was issued to DB. In reply, the Secretary of State argues that DB requires the permission of the Upper Tribunal to raise this point and that permission should be refused because it would be unfair to allow this point to now be taken at this late stage in the proceedings because as a matter of course the Labour Market System (“LMS” – the Secretary of State’s computer log of documents issued and “conversations”) has been cleared so any specific record of the issue of a WP05 is no longer held on record.
210. We had put before us further evidence from Mr Whittaker in the form of two further witness statements. These explain that LMS is the name of the DWP’s central IT system which is used to record relevant data on claimants for JSA to enable their claims and ongoing entitlement to be processed; given the large number of JSA claimants, it is not possible for LMS to retain all data on JSA claimants on an on-going basis as to do so would impair its functionality and breach the Data Protection Act 1998, and so purges of data are required; these purges are conducted in accordance with “purge rules”, which have different effects and time periods; importantly, record of Work Programme referrals are purged after 48 months and “records conversations” after 15 months; accordingly, records of conversations in June 2012 (or December 2011 (see paragraphs 82-83 above) would have been by around May or August 2013 and are no longer available. None of this was disputed.
211. Mr Whittaker explained that at the time the LMS processes for work for your benefit schemes were first created, “it was believed that recording the issue of notification as a conversation on LMS would be sufficient”. In his last witness statement Mr Whittaker explained that matters had changed and since March 2014 the issue of the WP05 has been recorded within the “Action plan section” on a claimant’s LMS record, and this section is not automatically purged. Furthermore, where a provider refers a case to Secretary of State decision-maker to consider a sanction and the claimant raises non-receipt of relevant notifications, the decision-maker will check the LMS for the record of the WP05 being issued and ask the provider what notifications it has sent the claimant. If from these checks it appears that notification(s) required have not been issued (e.g. the WP05), the case will be allowed and no sanction imposed. Moreover, if an appeal has been made then since the Supreme Court’s decision in Reilly and Wilson “where the DWP holds a copy of the record of issue of the issue of the WP05”, it is included in the documents provided to the First-tier Tribunal by the Secretary of State along with a non-personalised template copy of the WP05. Of course these developments came too late for DB, as his appeal was made at the end of June 2012.
212. There seem to us to be two distinct questions to be considered. The first is whether DB is entitled at this stage of these proceedings to raise the question whether he was issued with a WPo5 or equivalent documents sufficient for compliance with regulation 4 of the 2011 Regulations as read with the 2013 Act. The second is whether, if he is entitled to raise the issue, we should presume in DB’s favour that he was not issued with a WP05 given the reason for the Secretary of State’s inability to provide indisputable evidence that a WP05 was issued to him.
213. Generally, at least in social security cases where permission to appeal has not been given only on limited grounds, the Upper Tribunal does not prevent either party from introducing new issues into a case at any stage of the proceedings. However, if they are not within the scope of the original grounds of appeal or the original response to an appeal, it may in principle refuse to allow new issues to be raised as a matter of good case-management. Important considerations are the merits of the point and whether allowing the point to be raised late would cause unfairness to the other party. In the present case, these considerations are both linked to the question whether, if DB were allowed to argue that he did not receive a WP05, the issue would be decided on a presumption against the Secretary of State that would cause unfairness.
214. In support of his argument that the Secretary of State’s benign explanation as to why the WP05 record does not now exist could and should properly lead to it being presumed or inferred against him that a WP05 was not given or sent to DB, Mr Richards relied on Infabrics Ltd –v- Jaytex Ltd [1985] FSR 75. As he submitted, that decision appears not to have been cited to Mr Commissioner Mitchell when he was deciding R(IS) 11/92 and held in Appendix 3 of his decision –
“(3) The strong presumptions which are to be drawn against a party who destroys documents only fall to be drawn where the documents were destroyed with the intention to destroy evidence. (The intention to destroy evidence will, of course, be almost impossible to establish where the destroying party is aware of copies of the destroyed documents.) Where there is no such intention, the only detriment to which the destroying party lays himself open is the loss of the corroboration which the documents might have afforded him.
(4) Accordingly, in the social security jurisdiction no presumptions fall to be drawn where the Department of Social Security has destroyed documents with the intention of clearing storage space or simply because no point can be seen in retaining such documents.”
215. Infabrics, was an inquiry into damages for the infringing of a copyright and the defendants had, during the course of the proceedings, managed to lose stock records which would have shown, in particular, how many of the relevant items had been sold after the defendants had become aware of the infringement. Unsurprisingly, the court was not prepared to allow the defendants to benefit from any doubt that the missing documents would have resolved and, in particular, it presumed that all the items not otherwise accounted for had been sold after the relevant date. Thus we accept that an intention to destroy evidence is not essential for the drawing of an adverse inference against a spoliator and indeed the destruction itself need not be deliberate. What is said in R(IS) 11/92 needs to be qualified to that extent, although it remains a legitimate distinction between that case and Infabrics that the destruction of the documents in R(IS) 11/92 occurred long before the relevant application for review out of which the appeal before the Commissioner arose and so we do not doubt the correctness of the decision on its facts.
216. The facts of this case perhaps lie between those two cases. Here, the destruction of the documents did occur while these proceedings were on foot, although clearly without a deliberate intention to influence the outcome of these proceedings. To that extent, this case is similar to Infabrics. But there are also important differences. The plaintiffs in that case could never have known what the true position was, whereas here DB would once have known what documents he was given on or after 8 December 2011 and he is now unable to say that he did not have a WP05. Moreover, the evidence is that DWP could still have provided clear evidence as to whether DB had had a WP05 had DB raised the issue before the First-tier Tribunal. It is understandable that an unrepresented claimant should not have raised that issue then but it remains the fact that his delay in raising the issue is a reason that it is now impossible to be certain as to whether or not he ever had the relevant document. There is also a competing presumption in this case: the presumption of regularity under which, in the absence of contrary evidence, it is presumed that something that has been done has been done properly. It was obvious from the undisputed facts that DB had been required to attend specific appointments on several occasions that he had in fact been referred to the scheme so that the only question could be whether the manner of the referral was lawful.
217. Rules of evidence derived from case law are not irrelevant to proceedings before tribunals – they are usually based on common sense and reflect a desire to do justice between parties – but regard must be had first to those underlying principles and so the rules must not be applied inflexibly.
218. In the present case, we are quite satisfied that the balance of fairness would require that the question whether DB received a WP05 should be decided without relying on any presumptions. Moreover, on the balance of probabilities, we are satisfied that the only conclusion that could properly be reached on the evidence is that he did receive a WP05. There is clear evidence that he was in fact referred to the Work Programme and there is also clear evidence that the usual practice when making such a referral was to provide the claimant with a WP05. In the absence of any evidence to the contrary, it is therefore more likely than not that DB was given or sent a WP05. Taken with the appointment letter, that document constituted valid notice complying with regulation 4 of the 2011 Regs as read with the 2013 Act.
219. Thus, the argument that DB did not receive valid notice requiring him to participate in the Work Programme fails whether we formally admit it or not.
Was TG provided with a notice complying with regulation 4?
220. TG has never claimed not to have received a notice complying with regulation 4 of the 2011 Regulations as read with the 2013 Act and we are satisfied, looking at the evidence in his case, that he did receive such a notice.
Sixth issue - the “prior information requirement”
Referral to the Work Programme
221. Before turning to the different arguments which arise in respect TG’s and DB’s cases, we need to address referral onto the “Work Programme” and the application, if any, of what the Supreme Court said about prior information to that issue.
222. The need for “prior information” in Reilly and Wilson arose as an aspect of fairness but only because, it seems to us, such information might have enabled meaningful representations to be made: that is, representations that might have made a difference to the decision (to refer onto the scheme). However, given the mandatory nature of selection for the Work Programme, we cannot see the scope for any such meaningful representations being made, however much (or little) information is provided to the JSA claimant. We have set out above the evidence as to the Work Programme. It was a scheme which was not before the Supreme Court in Reilly and Wilson. On the basis of the evidence put before us, and despite the lack of any contested argument on this issue, we find it very difficult to identify where the need for prior information can have any purchase on the Work Programme for JSA recipients, save perhaps for those with “early entry characteristics”.
223. We note, first, that in neither of the appeals before us where the Work Programme applied did either of the very ably represented claimants seek to argue that their referral and participation once referred was other than mandatory. Moreover, no argument was made on behalf of TJ as to any “meaningful representations” she could have made either prior to referral or once she had been referred and was on the Work Programme. Given, as we see it, the compulsory nature of selection for (and then participation on) the Work Programme for all JSA claimants save for those with “early entry characteristics”, we can see why no such argument was made.
224. Therefore, we consider we can say by way of general guidance that given the mandatory nature of the Work Programme the starting point in any appeal in which the “prior information point” arises or is taken is that it should be for the claimant to show the basis on which he or she could have made “meaningful representations”: that is representations which could materially have affected the decision to refer them onto the Work Programme. The onus would also be on the claimant to establish that such representations could also apply to steps they were required to take once referred. In other words, we are satisfied from the evidence put before us that ordinarily (i.e. ignoring Employment and Support Allowance cases and JSA claimants with early entry characteristics), the decision to refer will not be capable of being changed by representations made by the claimant regardless of how much (or little) information they have been provided with in advance.
225. We turn now to the arguments under this heading in the cases of TG and DB. We will take TG’s case first.
SSWP-v-TG
226. It is convenient to here set out the evidence put before us concerning the CAP, which was the scheme TG was on.
227. According to Mr Whittaker’s summary the CAP was piloted from November 2011 as part of a trial for those long-term unemployed who would by 2013 have spent 2 years on the Work Programme without finding employment and who remained on JSA looking for work. Those selected for the CAP were done so randomly. The people within the CAP were to be compared with similar people not so selected with a view to determining the success of the CAP.
228. Much of the detail about the CAP was rehearsed by Mr Iain Walsh of the Labour Market and Conditionality Directorate of the Department for Work and Pensions, Caxton House, Tothill Street, London, on behalf of the Secretary of State in a witness statement put before the courts in Reilly and Wilson. That statement was put before us as an exhibit to Mr Whittaker’s first statement.
229. Mr Walsh explains that the CAP was part of a wider trial scheme know as the “Support for the Long Term Unemployed Trailblazer” and that CAP “provides an extended (26 week) placement, combined with provider led supported job search… [and]…‘Ongoing Case Management’….a more intensive offer of Jobcentre Plus led support delivered over 26 weeks with access to further resources, building on the new flexible and personalised approach within Jobcentre Plus to focus on allowing claimants to overcome specific barriers to work” (paragraph 23 of Walsh’s witness statement).
230. The detail of the CAP scheme is dealt with by Mr Walsh in paragraphs 33-49 of his witness statement. This set out that the referral stage of the CAP trial had concluded. It continued, relevantly, by stating that:
“[s]election for participation in the CAP trial is done by random allocation of JSA claimants who are eligible for one of three elements of Support for the Very Long Term Unemployed….Random allocation is recognised as the most reliable way of determining whether a cause and effect relationship exists between different elements of the trial. Once selected to participate in the trailblazer, claimants are required to participate as part of the conditions attached to the ongoing receipt of Jobseeker’s Allowance. However, there are situations in which a claimant would be exempt from taking part in the trailblazer, for example claimants who are pregnant and within 3 months of their expected due date, or claimants for whom specialist disability provision is identified as a more suitable option.” (paragraphs 36 and 37)
(We have added the underlining for emphasis.)
And that (paragraph 41):
“Participation in CAP is mandatory for those who are selected in the sense that claimants who are referred to providers are required to complete the programme properly and risk having the application of sanctions in respect of their benefits if they fail to participate in the programme in accordance with its terms.”
(Again, the underling is ours.)
.
231. Mr Walsh then refers in his statement to evidence about improved outcomes for claimants who engage in mandatory and work-related activity and in so doing he sometimes uses the phrase “mandatory activity”. He ends his general discussion about CAP by saying (para. 49):
“The main way that information about the CAP is conveyed is through discussions and correspondence between Jobcentre Plus and the claimant (prior to referral) and the provider and the claimant (following a referral). General information about the trailblazer including the CAP provider guidance…and the Department’s Equality Impact Assessment…are published on the Department for Work and Pensions website. As the CAP is still at a trial stage and is running in only four Jobcentre Plus Districts information about the programme is not currently included on the DirectGov website.”
232. One document which, it seems, was not before the Supreme Court in Reilly and Wilson is the “Support for the Very Long-Term Unemployed Guidance” for Personal Advisers in Jobcentre Plus (the “SVLTU guidance”). It is exhibited to Mr Whittaker’s first witness statement. The CAP, it will be recalled, was part of this “trailblazer” scheme. This SVLTU guidance refers (at paragraph 22) to an adviser having applied the “Random Allocation Tool” to determine which of the three control groups within the trailblazer trial the claimant was to be allocated to, one of which was the CAP. Crucially, the guidance continues, in the next paragraph, to say that “A claimant’s random allocation group must not be altered”. The part of the guidance dealing with notifying the claimant that he or she had been allocated to CAP (paragraph 26), simply refers to the claimant being informed of the group they have been allocated to, and that part of the guidance dealing with the referral interview (at paragraph 56) speaks in terms of it being a “mandatory intervention” in the Support for the Very Long-Term Unemployed. The advice as to the conduct of such an interview as set out in the SVLTU guidance was as follows:
“ Once the Personal Adviser has determined that the claimant does not
meet any of the exemption criteria and conditionality aspects have been
established the following actions must be taken: the Jobseekers
Agreement is reviewed and updated as appropriate;
CAP is explained in further detail, including:
participation is mandatory;
participation will last for 6 months
CAP is a maximum of 30 hours work experience placement per week
and 10 hours supported jobsearch activity;
failure to participate may result in a sanction; and
it is explained that claimants must comply with requests made by the
provider or their benefit could be affected.
that Jobseeker’s Allowance will continue to be paid, provided they
participate and attend the Jobcentre when required.”
233. The exemptions from the CAP are very similar to those for the Work Programme. There are no deferrals.
234. TG has played no active part in this appeal to the Upper Tribunal and so has not put in issue his referral to the CAP or, save for his argument about the cost of his travelling to the induction interview, his participation on the CAP. Nonetheless the specifics of the CAP’s application to TG have been addressed by the Secretary of State by way of witness statement evidence. The evidence in the witness statement is based on the documents from TG’s file and the evidence of the Personal Adviser (“the PA”) who referred TG to the CAP. We set this evidence out first for completeness and context before returning to comment on the evidence as to the CAP scheme in general and the argument as to TG’s equivalence with Mr Wilson.
235. TG was referred to the CAP on 16 December 2011, due to the length of time he had been unemployed and claiming JSA. He was referred using the “random allocation tool”. The PA could not recall any specific details about TG’s case but “would have explained that CAP would have been for 26 weeks, for 30 hours a week with additional job search hours and would have issued any supporting documents available at that time”. The supporting documents would have included the CAP1 letter which provided an explanation of the scheme and what would have been expected of the claimant once they had been allocated. In line with the Support for the Very Long-Term Unemployed Guidance, information regarding the CAP would have been given to TG at the interview before the official notice in writing was served. The PA could not recall TG raising any issues as to his selection for participation in the CAP nor on the facts did he fall within any of the exemption categories, but, the witness statement continues, any representations he may have made would not have led to a different outcome in his case (given the mandatory nature of the CAP).
236. After these steps had been taken, TG was referred to Ingeus. Ingeus then sent TG a “mandatory activity notification” on 16 December 2011 explaining he was to attend an induction session on 3 January 2012 between 9.30am and 4.30pm with a named person at Ingeus’s office in Derby. This letter is exhibited to the witness statement and, as with the later appointment letter of 10 February 2012, it used the same phrases as we have picked out from Triage’s letter to DB of 8 May 2012. TG responded by email at 7.48am on 3 January 2012 to say he was unable to attend the appointment later that day as he was ill, a reason which it seems was accepted. He was then sent further appointments for 20 January 2012 and 10 February 2012, neither of which he attended, and that then led to the appointment on 21 February 2012.
237. No argument has been made by TG himself about the “prior information requirement” and the CAP. He did not take up the offer of support from the FRU and has taken no real part in these appeal proceedings.
238. The argument instead arises by way of necessary inference from the way in which the Supreme Court decided this point in favour of Mr Wilson in Reilly and Wilson and given that both Mr Wilson and TG were selected to participate in CAP. On the face of the language used by the Supreme Court in paragraph 76 of its judgment, Mr Wilson’s regulation 4 notice to participate in the CAP would have been declared ineffective by the Supreme Court on the basis of the failure of Secretary of State to provide Mr Wilson in advance with adequate, accurate information about the CAP had the notice otherwise complied with the statutory scheme.
239. However it is plain that the touchstone for this aspect of the judgment in Reilly and Wilson is the notion that such information, if provided, could allow meaningful representations to be made to the Secretary of State: that is, representations that might lead to a different referral decision being made. The acute difficulty we have is that on the evidence before us in respect of the CAP it seems quite clear that both at the stage of referral onto the CAP and the stages once on, the process is mandatory and so cannot in our judgment admit of any “meaningful representations” in the sense seemingly thought of by the Supreme Court.
240. It is perhaps instructive to note that the language used by Mr Walsh above in his evidence to the Supreme Court of “offer” and “flexible and personalised approach”, together with his later saying “claimants…are being offered further support in their search for work” (para. 24) and “[the 2011 Regulations]…are flexible enough to enable the provision of a variety of support programmes tailored to specific sets of circumstances and which recognise the different categories of unemployed person and the needs of such person” (para. 25), may be said to not necessarily convey that placement on the CAP was mandatory.
241. For our part we consider that the witness statement of Mr Walsh, whilst conveying the mandatory nature of participation once on the CAP, does not clearly set out that referral onto the CAP was also mandatory. This may account for the view the Supreme Court took of the CAP in relation to Mr Wilson’s case (i.e. that he could make meaningful representations in advance of referral that might affect whether he was referred).
242. In fairness to Mr Walsh he does later in his witness statement deal with the facts of Mr Wilson’s case and say (para. 58) that “[c]laimants selected to take part in CAP receive three standardised letters in advance of referral advising that if they remained unemployed and in receipt of JSA they would be referred to the scheme”. However, the “would” may not necessarily be imperative here and, more importantly, whether selection is mandatory is not addressed.
243. Furthermore, Mr Walsh had earlier in his witness statement provided some detail on the Work Programme, no doubt to sensibly give context to his later evidence about the CAP which would follow on from it for certain eligible claimants. However, the evidence here is again not entirely clear as to whether referral onto the Work Programme (or even participation once on the programme) was mandatory. The witness statement says (at paragraph 20):
“[m]ost JSA claimants are referred to the Work Programme at the 12 month point of their claim. However, some categories of claimant qualify for early access to the Work Programme….those who volunteer for early entry are also supported through the Work Programme. Depending on the benefit they are claiming and their personal circumstances, most participants on the Work Programme can be mandated by their provider to activities that will move them closer to work. Claimants can only be mandated to activity that is reasonable taking into account their individual circumstances.”
We now have the benefit of Mr Whittaker’s witness evidence on the Work Programme and it makes it clear that in most cases referral of JSA claimants onto the Work Programme is mandatory.
244. We also have the benefit, which the Supreme Court did not have, of having seen the SVLTU guidance in respect of the CAP. The net effect of the SVLTU guidance when read as a supplement to Mr Walsh’s evidence, in our view shows clearly that the CAP is on all fours with the Work Programme in the sense of it being mandatory both at the stage of referral onto it and participation once on it.
245. Although it may seem curious on one analysis that what is termed “guidance” can require steps to be taken, this has to be seen in the context of (a) the guidance being essentially a set of instructions for internal use by Personal Advisers, and (b) section 17 of the Jobseeker Act 1995 mandating the imposition on JSA claimants of a requirement to participate in the “work for your benefit schemes”. The “guidance” can therefore be seen as lawfully setting out mandatory criteria.
246. It is true that exemptions (and deferrals for the Work Programme) can play a role in the decision to refer onto the CAP. But as can be seen from what we have set out above these are very limited exceptions that will usually be in the knowledge of the referring officer or obvious from a question asked (as to pregnancy), and we cannot identify any that would have applied to TG (or Mr Wilson). From our description of the three cases set out above, it should be evident that the Secretary of State has gone to considerable lengths to provide us with very helpful evidence as to the evidence that either was or was likely to have been before TJ, DB and TG prior to referral. However, in the end the detail or lack of detail in the evidence is, in our view, simply irrelevant if, however much information a JSA claimant has, he is required to be referred. In this situation, which applies equally to CAP as it does to the Work Programme in our judgment, he can make no meaningful representations.
247. That then presents us with a difficulty or dilemma. As we have said, the Supreme Court in effect found in favour of Mr Wilson on the “prior information requirement”. In our judgment, on the further evidence we have seen and been taken through, the facts do not support this conclusion. The SVLTU Guidance makes it clear that on the facts a claimant was randomly selected for the CAP and could not alter that selection. Do we then decline to follow the Supreme Court on the basis it was decided on an wrong assumed factual premise or should TG take the benefit of the Supreme Court’s “decision” on this issue on Mr Wilson’s case?
248. With diffidence, especially as we have had no contested argument on the point, we take the former course. In our judgment TG could have made no meaningful representations about his referral onto the CAP, and so any omissions in information provided to him could not have provided a basis for vitiating the regulation 4 notice under this head. In our view, the Supreme Court’s judgment in Reilly and Wilson does not compel us to a different result because its decision on this point was based on an assumed factual premise which further examination of the evidence shows was wrong.
DB-v-SSWP
249. The argument advanced on behalf of DB under this head had nothing to do with prior information but was concerned with an alleged lack of information provided to him once on the Work Programme. That gives rise to two immediate difficulties. First, the Supreme Court said nothing about this in Reilly and Wilson. Second, the stages once referred onto the Work Programme are all mandatory and so, save for consideration of representations at the stage of “good cause” arguments under regulation 7 of the 2011 Regulations, we find it difficult to see the space for “meaningful representations” at the stage prior to “decisions” made once referred. (Indeed, the very word “decision” may fit oddly with the step of the provider telling the claimant to attend an appointment at a given time, date and place: “instruction” may be more apt.)
250. As it is, even assuming that the “prior information requirement” may properly extend to post-referral stages under the Work Programme, in our judgment it takes DB nowhere on the facts.
251. His case is that he was not provided with, or made aware of, paragraph 24 in Chapter 3a of the Work Programme Provider Guidance. This, as its title suggests, is guidance for the provider. Paragraph 24 is titled Participants circumstances and says, insofar as it was argued to be relevant:
“When deciding whether activity is reasonable in a participant’s circumstances you need to consider:
· The claimant’s personal circumstances such as any health condition they may have, their ability to use transportation, their skills/education, any childcare responsibilities the claimant may have etc. These examples are not exhaustive.” (Underlining added by us to highlight the passage relied on by DB
252. DB argues that had he been aware that the provider needed to take account of his ability to use public transport to get to the appointment with Triage in Middlesbrough on 17 May 2012 at 11am, he could have told them about his lack of finances to pay for his fare.
253. As we have said, we have considerable doubts about whether the “prior information requirement” extends to this stage. Moreover, we doubt whether the phrase “ability to use transportation” in this context was aimed at the finances to do so. It seems much more likely to be concerned with whether a health condition may limit the claimant’s ability to use transport.
254. Be that as it may, even if we assume all of these points in DB’s favour, his fundamental problem is that Triage’s appointment letter of 8 May 2012 set out that if DB could not attend on 17 May 2012 he should contact them as soon as possible and that they would refund his travel costs if he retained proof of purchase. Critically, on his own case on receipt of this letter and before the appointment DB contacted Triage and told them he couldn’t attend unless his fares were paid in advance. DB therefore, as far as we can see, made representations as to his “ability to use transport” in advance to Triage, and they were taken into account and rejected (in that the appointment was not changed and fares were not provided). We simply cannot see on what basis knowing about the Work Programme Provider Guidance would have made any difference to the representations DB in fact made or their impact. The fairness considerations underpinning the “prior information requirement” in Reilly and Wilson dictate that the representations at least have the prospect of leading to a different decision, which is not the case here.
Seventh issue – when “good cause” has to be shown
255. The last legal issue we have to address is whether the terms of the 2011 Regs required the “good cause” to be shown within 5 working days of the claimant being notified of the failure (we will term this “the narrow reading”) or some other, longer period if the claimant had good cause within that 5 days period but was for good reason unable to show it within that time (“the wider reading).
256. It is perhaps worth noting at the start of our discussion of this issue that regulation 7 of the 2011 Regs – and its “show… within 5 working days” language – was only in force until October 2012 and has not, as far as we are aware, been replaced with an equivalent legal test. Accordingly, the cases affected by regulation 7 will be historic, although not necessarily few in number.
257. The arguments made by Mr Richards for DB on this issue started from the premise that to give regulation 7 the narrow reading would lead to absurd consequences. An example canvassed at the hearing was a person who is unconscious and hospitalised for a period covering both the date of the appointment with the work provider and the period in which he had to show good cause for not attending that appointment: i.e. where the good cause is also the reason for his being unable to show good cause. However this is classic “tail wagging dog” territory. The analysis must start with the statutory wording; being mindful of the consequences such a reading may lead to if it is not clearly required.
258. Regulation 7 is mandated by section 17A(1)(d) of the Jobseekers Act 1995. The terms of that subsection are instructive because they provide for the appropriate consequences to follow (i.e. the sanction) if a person has not participated in the scheme “and it is not shown, within a prescribed period, that the participant had good cause…” (our underlining). That plainly, it seems to us, mandates that the good cause must be shown within a defined period, and favours the narrow reading: 5 working days of the date on which the Secretary of State notifies the claimant of the failure to participate being such a period.
259. The argument made for DB was that the 5 day period in regulation 7(1) is to be interpreted is laying down a minimum period which the Secretary of State must allow to elapse before making a decision on good cause under regulation 7(2) and taking account of all the circumstances of the case under regulation7(3). On this reading if the claimant makes representations after the expiration of the 5 day period but before the Secretary of State makes a decision, those representations must be taken into account. We fail to see why this is so. This wider reading as far as we can see leaves empty the requirement under s.17A(1)(d) for the good cause to be shown with a prescribed period. Neither paragraph (2) nor paragraph (3) of regulation 7 prescribe any period within which the good cause has to be shown that is left solely to regulation 7(1) and the 5 working days test set out therein.
260. The narrow reading of regulation is 7 is reinforced in our judgment by the language of regulation 8(1) “Where…[the claimant] has not shown good cause for the failure in accordance with regulation 7, the appropriate consequence for the purpose of section 17A of the Act is as follows” (our underlining). The underlined words can only be a reference to regulation 7(1).
261. It thus seems inescapable to us that the terms of the parent Act and regulation 7 requires that the good cause must be shown within 5 working days of a claimant being notified by the Secretary of State (this function cannot be delegated to a work provider) of their failure to participate in the scheme. That is the clear intendment of the statutory language and so reference to absurd consequences becomes redundant.
262. In any event, we do not consider that there are absurd consequences, although there may be some harsh cases. In the example given above of the person rendered unconscious, the straightforward answer as Ms Leventhal pointed out is that being unconscious would mean that the claimant could not satisfy other, more fundamental, conditions of entitlement to JSA (such as being available for and actively seeking employment – per section 1(2)(a) and (c) of the Jobseekers Act 1995) but would be entitled to an award of employment and support allowance for the relevant period instead and so would not be liable to a sanction under the 2011 Regulations.
263. Moreover, as we have already mentioned in connection with notices under regulation 4, regulation 1(2), which provides that for the purpose of the Regulations “where a written notice is given by sending it by post it is taken to be received on the second working day after posting”, is in our judgment to be read as providing for the calculation of the date from which the notice is effective if it is received, rather than providing for the deemed receipt of the notice which seems unlikely to have been intended given the importance of notices under the Regulations. Thus incapacity or non-receipt of the notice of appointment, where the good cause for not attending the appointment is also likely to prevent compliance with the 5-day time limit, are cases where the 5-day time limit is not important or does not arise.
264. However, we recognise that there may well be harsh cases on the facts. One may be where the claimant posts his letter showing good cause well in time but the letter does not arrive at the Jobcentre within the five working days. However, the nature of JSA as a benefit which requires regular face to face contact with the Jobcentre may give rise to the sensible expectation that JSA claimants who have received notice asking them to show good cause do so by attending at the Jobcentre where they sign-on on a week-day with their written reasons. Regulation 7(1) of the 2011 Regs does not require the good cause to be shown to any particular Jobcentre so the local “signing-on” Jobcentre ought to suffice.
265. We also bear in mind that where a claimant subject to the harshest 26 week sanction “re-complies” with the relevant work for your benefit scheme by complying with requirements made under regulation 4 of the 2011 Regs within 4 weeks, then the sanction is reduced from 26 to 4 weeks: see regulation 8(7) of the 2011 Regs. This occurred on the facts of one of the cases before us. Thus the harshest consequences of the narrow reading of regulation 7 may be ameliorated to an extent by the claimant re-engaging with the scheme, even though he may have had good cause for the failure to participate but have been unable for good reason to show it within 5 wording days. Moreover, in the truly exceptional case where good cause existed but could not, for good reason, be shown within the 5 days, the Secretary of State could no doubt give serious consideration to making an ex gratia payment to the claimant equivalent to the JSA sum sanctioned.
266. This leaves us to set out our reasoning for rejecting the Secretary of State’s argument, faintly made in the end we think, that the harsh effects of the narrow reading of regulation can be countered in an appropriate case where the claimant has appealed under the provisions of regulation 3(4A) of the Social Security and Child Support (Decision and Appeals) Regulations 1999. So far as is relevant, the said regulation 3(4A) provides “[w]here there is an appeal against [a]….decision, but the appeal has not been determined, the…decision may be revised [by the Secretary of State] at any time”. As we understood it, the Secretary of State’s argument was that this would allow him to revise on any ground and take account of good cause shown outwith the statutory 5 days. This is plainly wrong in our judgment and a startling proposition for the Secretary of State to make. It is plainly wrong because the revision on any ground allowed for by regulation 3(4A) must be a ground allowed for under the law (here the 2011 Regs), and not anything considered to be meritorious but expressly not provided for (or, as here, excluded) under the statutory scheme. It is a startling proposition to make because if correct it would involve the Secretary of State in having to take account of an undefined and potentially limitless list of non-statutory representations and considerations under regulation 3(4A). Moreover, if he could revise a decision under regulation 3(4A) where there was an appeal, on the Secretary of State’s argument he could presumably have revised under regulation 3(1) of the same regulations if there was no appeal but the information had been provided within a month of the original decision.
267. If the Secretary of State wished to be able to avoid harsh decisions where claimants had a good reason for not complying with the five day time limit, he should have given himself the power to extend that time limit where a claimant had a good reason for not having complied with it.
268. TJ and TG also raised arguments under regulation 7 before the First-tier Tribunal, which the First-tier Tribunal did not consider because it was unnecessary for it to do so. In TJ’s case, there is a live issue as to whether she telephoned the Jobcentre to show good cause within 5 days of receiving the letter notifying her of the alleged breach and that remains an outstanding issue that would need to be considered by the First-tier Tribunal if we are wrong on the first and third issues. In TG’s case, the written material is insufficient by itself to establish good cause and, since it is clear that he has no wish to attend a hearing before a tribunal, we would decide that issue against him.
Conclusion
269. Accordingly, by a majority, we find in the claimants’ favour on the first and third issues and give the decisions set out on page 1 above, dismissing the Secretary of States’ appeals and allowing DB’s appeal. The summary of our decisions or conclusions on each of the seven issues is set out in paragraph 13 above.
270. Had we found in the Secretary of State’s favour on the first and third issues, we would have unanimously –
(i) allowed the Secretary of State’s appeal in TJ’s case and remit the case to be re-decided by the First-tier Tribunal;
(ii) dismissed DB’s appeal; and
(iii) allowed the Secretary of State’s appeal in TG’s case and substituted a decision dismissing TG’s appeal to the First-tier Tribunal.
Leave to appeal to the Court of Appeal
271. We waive the requirement in rule 44 of the Tribunal Procedure (Upper Tribunal) Rules 2008 for any party to make a written application to the Upper Tribunal for permission to appeal to the Court of Appeal. Given the importance of the matters arising under what we have termed issues 1 and 3 above (retrospective extent of the 2013 Act and, alternatively, the human rights compliant reading of that Act), and given Reilly No2 already being in the Court of Appeal, we give the Secretary of State permission to appeal to the Court of Appeal against our majority decision on those two issues. Permission is refused on all other issues. The appropriate court is the Court of Appeal.
Signed (on the original) Mr Justice Charles
Chamber President
Mark Rowland
Judge of the Upper Tribunal
Stewart Wright
Judge of the Upper Tribunal
Dated 11th February 2015
Appendix
WPO5 and letters to TJ
WP05
The Work Programme
Start notification letter (JSA)
Dear [Claimant Name]
From today to continue receiving Jobseeker's Allowance and/or National Insurance credits, you must take part in the Work Programme.
AVANTA ENTERPRISES LTD, or one of their partners, will support you whilst on the Work Programme. They will discuss what help you need to find work, and draw up an action plan of things you'll do to improve your chances of getting and keeping a job.
You must complete any activities that AVANTA ENTERPRISES LTD, or one of their partners, tells you to do.
You will still need to attend the Jobcentre and meet your benefit conditions including reporting any changes of circumstances.
You must take part in the Work Programme until you are told otherwise.
When you take part in the Work Programme, you are also taking part in the Employment, Skills and Enterprise Scheme which is established in law by The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011.
Under the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, your Jobseeker's Allowance could stop for up to 26 weeks if you fail to take part in the Work Programme without a good reason. This would include failing to complete any activity that your Provider ahs required you to do.
If you receive a sanction your Jobseeker’s Allowance and National Insurance credits will be stopped for:
· two weeks, for a first failure;
· four weeks, if you have previously received a two-week sanction, whether in relation to your participation in the Work Programme or any other scheme set up under the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, within the last 12 months; or
· 26 weeks, if you have previously received a four- or 26-week sanction, whether in relation to your participation in the Work Programme or any other scheme set up under the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, within the last 12 months.
If your benefit is stopped for 26 weeks, you may have the sanction lifted (after a minimum of 4 weeks) if you:
· fully re-engage with the sanctioned requirement at any time; or
· fully engage with a different requirement notified to you.
We have passed your contact details on to AVANTA ENTERPRISES LTD. They, or one of their partners, will be in touch with you shortly.
Opportunity Letter
Date: 9th May 2012
Reference: CTM 25435
Dear [Claimant name]
You have been referred to the following Opportunity: WP/JSA 25 PLUS/PG2
You should report to:
PRAP Contact
AVANTA ENTERPRISE LTD
196 GREAT CAMBRIDGE ROAD EN1 1UQ
Telephone number: 000
If you cannot attend for any reason or if you stop claiming Jobseekers Allowance please contact this Jobcentre immediately.
Please note that if, without a good reason, you fail to start, fail to go when expected or stop going to the provision mentioned above (as in Section 19(5)(b) of the Jobseekers Act 1995), any future payments of Jobseeker's Allowance could cease to be payable or could be payable at a lower rate. You could also lose entitlement to credit of National Insurance contributions.
Once you have started this provision, you should contact the provider immediately if you will not be able to attend for any reason.
Yours sincerely
(For Manager) BUSINESS MANAGER
If you require any further information or assistance regarding Jobcentre Plus services please do not hesitate to call.
If you would like details of other jobs please ring Jobseeker Direct on 0845 6060 234, If you prefer to speak Welsh, the Jobseeker Direct Welsh.
Appointment letter
14 May 2012
Dear [Claimant name]
Work Programme Insight Appointment
Following your recent Interview at the Jobcentre, when you were referred to the Work Programme, we have arranged an Insight Appointment to discuss the support and help available to ensure you get the most out of the Work Programme.
Your appointment is with an Avanta Employment Consultant on 21/05/2012 at 09:30 and is likely to take approximately 2-3 hours. The appointment will take place at Avante Chatham 4th floor, Anchorage House, 4747 High Street, Chatham, Kent, ME4 40W.
Do I need to attend The Work Programme Insight Appointment?
Yes, attendance at this appointment is mandatory. Failure to attend may result in your benefits being affected
How can I get the most out of the appointment?
If you have a CV, please bring a copy with you. If you do not have a CV, it would be helpful if you could record some details in relation to previous work experience and bring these with you.
Can I get help to attend the interview if I need it?
Yes in most cases. Please contact us prior to the appointment as we may be able to provide specialist support to ensure your visit with us is as comfortable as possible. The cost of your travel to the appointment may be reimbursed (you will need to bring proof of this with you e.g. bus ticket).
If you would like more information about the Work Programme or want to discuss anything about your appointment, please contact us on 0800 534 123.
We look forward to seeing you on the 21/05/2012.
Yours sincerely
Avanta
[1] As far as we can see, the fourth issue is unlikely to have any bearing one way or the other.
[2] Neither of the schemes before us was voluntary. We discuss this and the mandatory nature of the schemes when we discuss the “prior information requirement” below.
[3] Thus the notice served on Mr Wilson in Reilly and Wilson stating as a consequence of loss of JSA “for up to 26 weeks” – on which the High Court found breach of regulation 4(2)(e) – did describe an effect as a possible consequence of not participating, as arguably would the notices in these three appeals (e.g. “any future payments [JSA] could cease to be payable” in TJ’s case).
[4] The impact assessment which accompanied the Explanatory Notes and to which they expressly refer may perhaps support an argument that Parliament was not concerned to address sanction decisions which had already been appealed because the only categories the impact assessment refers to are (i) sanctions issued, and (ii) sanction decisions put on hold pending the outcome of the Reilly and Wilson litigation. The only reference to “appeals” is where the impact assessment refers to the £130 million cost being net of, or reduced by, successful appeals, which on its face may be said to be leaving out of account decisions overturned on appeal, but as the Impact Assessment was not the subject of any argument before us we have not relied on it and say no more about it.
[5] The Schedule was headed “Minor and Consequential Amendments” but paragraph 7 of it nonetheless introduced the forerunner of s.27 of the SSA 1998.
[6] Regulation 4(2)(d) of the 2011 Regs also refers to the requirement to participate continuing until the claimant’s award of JSA ends as an alternative end point for his or her participation ending. This point was not the subject of argument before us but our preliminary view is that the phrase in the WP05 “to continue receiving [JSA]…, you must take part in the Work Programme”, meets this specification.
[7] We suppose that a claimant who is simply told he or she is required to participate in the “Work Programme” might conceivably fail to comply with that requirement by saying he will have nothing to do with it whatever specifics he may be later asked to meet, but even in this example it may be difficult to identify a failure to comply (in the sense of a breach of an obligation) when no specific action has been required of the claimant.