The Secretary of State appealed against the decision in favour of Ms Reilly and Mr Wilson, that the 2011 Regulations, made under section 17A of the 1995 Act, did not comply with the requirements of that section, and (ii) a cross-appeal brought by Miss Reilly and Mr Wilson against the Court of Appeal’s rejection of two other attacks they made on the way in which the Secretary of State had caused the Employment, Skills and Enterprise Scheme to be operated. The Regulations challenged had since been replaced by the 2013 Regulations.
Held: A requirement in a statute requiring something to be prescribed in delegated legislation, necessarily envisaged that such legislation would add to the primary legislation. The 2011 Regulations purportedly made under section 17A of the 1995 Act providing for Regulations to require claimants to take part in schemes of a ‘prescribed description’, were unlawful because they set up a named scheme without any description over and above what was already in section 17A.
Even though persons required to participate in the scheme were entitled to a declaration of the Regulations’ unlawfulness, the additional claim for a declaration that having to undertake unpaid work as part of the scheme amounted to a breach of their Article 4 rights as forced or compulsory labour failed: ‘even where there exists a risk comparable to the menace of a penalty, it is necessary to consider, in the light of the underlying objectives of article 4, whether the service required of an individual falls within the prohibition of compulsory labour.’ and ‘To amount to a violation of article 4, the work had to be not only compulsory and involuntary, but the obligation to work, or its performance, must be ‘unjust’, ‘oppressive’, ‘an avoidable hardship’, ‘needlessly distressing’ or ‘somewhat harassing’. ‘
In addition, however, ‘there was a failure to comply with regulation 4(2)(c). The letter of 16 November 2011 merely informed Mr Wilson that he had to perform ‘any activities’ requested of him by Ingeus, without giving him any idea of the likely nature of the tasks, the hours of work, or the place or places of work. It seems to us, therefore, that the letter failed to give Mr Wilson ‘details of what [he was] required to do by way of participation’. ‘
Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson
[2013] UKSC 68, [2013] WLR(D) 413, [2014] 1 AC 453, [2013] 3 WLR 1276, [2014] 1 All ER 505, UKSC 2013/0064
Bailii, Bailii Summary, WLRD, SC Summary, SC
Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (SI 2011/917), Jobseeker’s Act 1995, Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013, European Convention on Human Rights 4
England and Wales
Citing:
At First Instance – Reilly and Another, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 6-Aug-2012
The claimants sought judicial review of schemes which they said appeared to require them to work for free in order to claim Jobseekers Allowance.
Held: Judicial review was granted. There had been a breach of regulation 4(2) of the 2011 . .
Appeal from – Reilly and Another, Regina (on The Application of) v Secretary of State for Work and Pensions CA 12-Feb-2013
The claimants complained of the system where they were obliged to work for free to claim Jobseekers Allowance.
Held: The 2011 Regulations were required to specify the schemes under which the claimants were to claim. Instead, the regulations . .
Cited – Blackpool Corporation v Locker CA 1948
The effect of the delegation of a power is that the power in question is exercisable by the delegate and no longer by the pricipal delegator.
Scott LJ discussed the rule that ignorance of the law is no excuse: The maxim that ignorance of the . .
Cited – X v Netherlands ECHR 1967
The applicant, a specialist worker in the building industry, claimed unemployment benefit and was required as a condition of payment to accept work which he considered to be unsuitable for a person with his qualifications and socially demeaning. He . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Schuitemaker v The Netherlands ECHR 4-May-2010
The applicant was a philosopher by profession. She claimed unemployment benefit and was told that her benefits would be reduced unless she was willing to take up a wider range of employment than she considered suitable. She complained under Article . .
Cited – Van Der Mussele v Belgium ECHR 23-Nov-1983
There is discrimination only if the cases under comparison are not sufficiently different to justify the difference in treatment. This expressed by saying that the two cases must be in an ‘analogous situation’. The social security system is a . .
Cited – Talmon v The Netherlands ECHR 26-Feb-1997
The applicant was a scientist. He claimed unemployment benefit and was required as a condition to accept work which he considered unsuitable. Because of his refusal to do it, his benefit payments were reduced. He complained that by having his . .
Cited – Salih and Another v Secretary of State for the Home Department Admn 8-Oct-2003
An asylum seeker who was found to be destitute and had failed in his application was entitled to restricted support under the section. The respondent implemented a policy restricting the restriction on the use of the power to those who had some . .
Cited by:
See Also – Reilly (No 2) and Another, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 4-Jul-2014
The Claimants sought a declaration of incompatibility, under section 4 of HRA 1998, on the ground that the 2013 Act was incompatible with their rights under Article 6 and Article 1 of the First Protocol to the European Convention on Human Rights. . .
Lists of cited by and citing cases may be incomplete.
Benefits, Human Rights
Updated: 23 November 2021; Ref: scu.517231