It was difficult to miss the near ubiquitous reporting of the Court of Appeal’s decision in the case of Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions, in which it quashed the Jobseeker’s Allowance (Employment and Enterprise) Regulations 2011 SI 2011/917. Contrary to the impression given by (some of) the media, the Court did not find that there was any breach of the human rights of unemployed people who had been compelled to undertake unpaid “work experience” to avoid having their jobseeker’s allowance withdrawn. Rather, there had been a failure to introduce these workfare programmes within the scope of any primary legislation. In particular, the “job seekers” had been misled about how long they could lose benefits for if they did not agree to participate.
In fact the Court of Appeal specifically made it clear that there was nothing wrong, in principle, with having such schemes. Lord Justice Pill summarised the position as follows:
A policy of imposing requirements on persons receiving a substantial weekly sum, potentially payable for life, is readily understandable. Equally, the means sought to achieve that end are understandable; claimants should be required to participate in arrangements which may improve their prospects of obtaining remunerative employment. Provided schemes “are designed to assist [claimants] to obtain employment” and to “[improve] their prospects of obtaining employment”…sanctions for failing to participate are understandable. Whether a particular arrangement meets those statutory requirements…is susceptible to challenge by judicial review, but that stage has not been reached. The issue is whether the Scheme named in the Regulations satisfies the requirements for specificity in section 17A by way of being “prescribed”.
I readily appreciate the need for flexibility in devising arrangements which will achieve the statutory purpose of improving prospects of obtaining employment. The needs of jobseekers will vary infinitely as will the requirements of providers prepared to participate in arrangements with them. I am impressed with the care shown in attempting to devise arrangements and with the resources devoted to attempts to achieve the statutory purpose. There is an important public interest in getting people back to work as well as a major saving in not having to pay Jobseeker’s Allowance, and possibly other benefits.
I also appreciate that there could be a substantial saving of public money if effective sanctions are available when jobseekers are not cooperating with proposals properly put to them under the Act. The Secretary of State’s object in these proceedings is not to end Jobseeker’s Allowance but to ensure that it is only paid to those actively seeking employment and prepared to cooperate with attempts made by the state to achieve that end. The entitlement to receive the weekly sum should depend on such cooperation.
Having said as much, this is a question of statutory construction and I am unable to conclude that the statutory requirement for the Regulations to make provision for schemes of a prescribed description is met in regulations 2 and 3 of the 2011 Regulations. Simply to give a scheme a name cannot, in context, be treated as a prescribed description of a scheme in which claimants may be required to participate, within section 17A(1).
Arrangements may only be made in accordance with the Regulations if there appears in the Regulations a scheme (or schemes) of a prescribed description, as required by section 17A. Even if the arrangements are in accordance with the regulations, that does not establish that the regulations are in accordance with the statute and that is the point at issue. It is a requirement of section 17A that regulations make provision for schemes “of any prescribed description”. I do not consider that the statutory intention, which throughout has included the definition of “prescribed” relied on, contemplated that the expression “prescribed description” introduced in 2009 could be construed in the way the Secretary of State contends.
Accordingly the government does have to make sure that it implements such schemes in the way envisaged by Parliament. It failed to do so in this case and that is why the Regulations were quashed. Based on the Judge’s comments it seems clear that if the government gets its house in order a similar scheme could be legally implemented without too much difficulty.