Reilly and Wilson v Secretary of State

This is series of court decisions concerning the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations (2011/917) which were quashed as unlawful and whether lost benefit could be reclaimed.

These regulations were used  to create most of the Government’s Back to Work schemes as laid out in Section 17A of the Jobseeker’s Act 1995 (Schemes for assisting persons to obtain employment: ‘work for your benefit’ schemes etc.).

The case concerned two claimants who were on Back to work Schemes. Caitlin Reilly was made to work in Poundland for two weeks and Jamie Wilson was required to work 30 hours a week for six months for free as part of the Community Action Programme.

The three judge Court of Appeal decision (Reilly 1) found that the regulations failed to provide enough detail about the “Back to Work” schemes in the Regulations and so were quashed.

The ruling could have meant that anyone sanctioned and stripped of benefits over the past two years could potentially claim these back.

Government response

The Government has introduced replacement regulations - The Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013/276)

In addition the Government introduced The Jobseekers (Back to Work Schemes) Act 2013 to avoid the need to repay claimants who have been sanctioned for failure to comply with requirements under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (the ESE regulations) following the decision to quash these as unlawful.

The effect of the Act is that any decision to sanction a claimant for failure 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.

The Act also addresses the risk that previous notifications to claimants made under the Mandatory Work Activity Regulations, which contain the same notification provisions as the ESE Regulations, may also be open to challenge on the basis of the Court of Appeal’s judgement.

The Government also appealed the decision to the Supreme Court but was unsuccessful.

High Court decision over retrospective legislation

On the 4 July 2014 the High Court heard Reilly (No. 2) & Anor, R (on the application of) v Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin).

This case concerned whether the new Jobseekers (Back to Work Schemes) Act 2013 was incompatible with rights under Article 6 (right to a fair trial) and Article 1 of the First Protocol (protection of property) to the European Convention on Human Rights (ECHR).

A declaration of incompatibility would mean that those sanctioned as a result of earlier legislation deemed to be ultra vires could reclaim the benefit they lost.

The High court decided that the Jobseekers (Back to Work Schemes) Act 2013 was incompatible with rights under Article 6 and that there were no "compelling grounds of the general interest" to justify the interference with the Article 6(1) rights of the Claimants to a judicial determination of their claims.

This judgement only applies in cases where a claimant has appealed to a court or tribunal.

The court rejected the argument of incompatibility under Article 1 of the First Protocol because in this case the receipt of Jobseeker’s Allowance is dependent on meeting certain conditions. If these conditions are met there is no deprivation of property.

The Government appealed to the Court of Appeal as Reilly and Hewstone v Secretary of State for Work and Pensions

The Court of Appeal considers the 2013 regulations to be lawful but also broadly upholds the High Court decision regarding those who have already appealed to a court or tribunal.

“180. After so lengthy a judgment we should summarise our conclusions in both appeals as regards the principal issue, and we will try to do so in language that is accessible to non-lawyers. The decision of the Court of Appeal in Reilly 1 (whose reasoning was later largely approved by the Supreme Court) meant that the non-payment of JSA to claimants who had failed to participate in certain "back-to-work schemes" – described as the imposition of "sanctions" – was not legally valid. Parliament enacted the 2013 Act in order to retrospectively validate those sanctions. We have held that it was successful in doing so as a matter of English law.

But we have also held (upholding the decision of the High Court) that in the cases of those claimants who had already appealed against their sanctions the Act was incompatible with their rights under the European Convention of Human Rights. Under the Human Rights Act that "declaration of incompatibility" does not mean that the 2013 Act ceases to be effective as regards those claimants: it is up to the Government, subject to any further appeal, to decide what action to take in response.”

 There is a useful discussion of this case on the UKSC blog page