Labour & European Law Review Weekly Issue 350 18 December 2013
The Supreme Court has ruled in R (on the application of Reilly and anor) v Secretary of State for Work and Pensions that although the way the government drafted the regulations governing jobseeker’s allowance were unlawful, the threat of benefits sanctions did not constitute forced or compulsory labour contrary to Article 4 of the European Convention on Human Rights.
Section 17A of the Jobseeker’s Act (JSA) 1995 states that the Secretary of State can make regulations requiring JSA claimants in “prescribed circumstances” to participate in work or work-related schemes of a “prescribed description” for a “prescribed period” in order to help them obtain employment.
On that basis, the Secretary of State set up a scheme known as “ESES” under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 with the aim of helping JSA claimants find work, which could include work-related activity.
Regulation 3 allowed the Secretary of State to select a JSA claimant to take part in the scheme and regulation 4 required the claimant to participate once the Secretary of State had provided them with a notice in writing specifying (among other things) details of what participation involved. Regulations 4 to 8 stated that failing to participate without good cause would lead to “benefits sanctions”.
Under the auspices of ESES, the government created a number of “work for your benefit” programmes including the “sector-based work academy scheme” (SBWA), a short-term scheme aimed at individuals who had no serious barrier to finding work; and the “Community Action Programme” (CAP) aimed at the very long-term unemployed.
Ms Reilly unwillingly participated for four weeks in the SBWA scheme having been informed (wrongly) that she had to take part. She received no written notice. Mr Wilson was selected to participate in the CAP and was informed orally that he would be required to work for 30 hours a week for 26 weeks or until he found work. He repeatedly refused to participate, and was denied JSA for six months as a result.
Ms Reilly and Mr Wilson brought judicial review claims that the 2011 Regulations were unlawful, since they did not fulfil the requirements of section 17A of the 1995 Act in describing the programmes in which individuals were required to participate, the basis on which individuals were selected, or the period of participation.
They also argued that they had not received the information required by Regulation 4 of the 2011 Regulations and that the Government should have a published policy setting out the details of the relevant schemes. Finally, Ms Reilly argued that she had been subject to forced or compulsory labour contrary to Article 4 of the ECHR.
Decisions of High Court and Court of Appeal
The High Court agreed with one of Ms Reilly’s and Mr Wilson’s arguments and found that they did not receive the information required by Regulation 4 under the 2011 Regulations. The Court of Appeal went further by not only agreeing with the High Court in relation to there being a breach of Regulation 4, but also finding the 2011 Regulations were unlawful as they contained insufficient detail about the SBWA and CAP schemes.
Supreme Court decision
The Supreme Court agreed that the 2011 Regulations were invalid as they did not contain a sufficiently detailed “prescribed description” of the SBWA or CAP schemes. It also held that there were individual failures in complying with the “notification” and “publication” requirements of the 2011 Regulations.
However, it rejected the argument that imposing a work requirement as a condition of a benefit was contrary to Article 4 as the High Court and Court of Appeal had also done. The Regulations did not constitute forced or compulsory labour and did not come “close to the type of exploitative conduct at which Article 4 is aimed”.