Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions

Regulations made under section 17A of the Jobseekers Act 1995 may prescribe a single umbrella scheme whose constituent programmes are administered flexibly, provided the scheme is adequately described. A statutory duty of openness does not necessarily require a formal published policy. Information may be communicated through general written material, advisers and correspondence, but it must enable an affected person to make an informed choice or understand the personal consequences of non-compliance. A notice under regulation 4 must accurately state the claimant’s required participation and the applicable sanction. Failure to give proper notice prevents sanctions based on that failure, but does not automatically invalidate the requirement to participate. Work-for-benefit schemes of the kind considered were not contrary to Article 4 of the Convention.

The claimants challenged the validity of the Jobseeker’s Allowance (Employment and Enterprise Scheme) Regulations 2011 and two programmes administered under them: a sector-based work academy involving Miss Reilly and the Community Action Programme involving Mr Wilson.

They argued that the Regulations were ultra vires section 17A of the Jobseekers Act 1995, that the Secretary of State had failed to publish adequate policies, that regulation 4 notices were defective, and that the programmes involved forced or compulsory labour contrary to Article 4 of the Convention. The court also considered alternative remedies and the consequences of defective notice.

1. Vires. The Regulations just complied with section 17A. Regulation 2 adequately, although only just, described the Employment, Skills and Enterprise Scheme. Section 17A did not require every constituent programme to be separately and fully described in the statutory instrument. Regulation 4 also provided a sufficient basis for determining the prescribed period by notification to the individual. The challenge under ground 1 therefore failed.
2. Publication and openness. The principles in R (Lumba) v Secretary of State for the Home Department required affected persons to receive sufficient information to make an informed choice or meaningful representations. They did not require a single formal policy document. Information about the sector-based work academy could lawfully be given through the website and Jobcentre Plus advisers. The CAP information, communicated through correspondence, advisers and provider material, was also sufficient in general. Ground 2 failed.
3. Regulation 4. Miss Reilly received no written notice, contrary to regulation 4(2). Mr Wilson’s notice inaccurately stated that benefit could be stopped for up to 26 weeks, when his first possible sanction was two weeks. The notice therefore failed to give the clear and personal information required by regulation 4(2)(e). A claimant must not be required to investigate inaccessible Regulations to discover the applicable sanction.
4. Consequences. Defective notice prevents a valid sanction being imposed for the relevant failure. Applying the approach in R v Soneji, the court rejected total invalidity: non-compliance did not automatically make the participation requirement unlawful. Complaints about defective notice should ordinarily be pursued through the Independent Case Examiner, or sanctions through the First-tier Tribunal.
5. Article 4. Applying the approach in Van der Mussele v Belgium, neither programme amounted to forced or compulsory labour. The schemes were directed towards employment and were remote from the historical exploitation addressed by Article 4. Ground 4 failed.
6. The court declined the requested declarations only provisionally, indicating that declarations marking the admitted and established regulation 4 breaches would be appropriate unless the Secretary of State made further submissions. The principal challenges failed.

First-instance judicial review proceedings. The claims were heard on a rolled-up basis after permission was granted.