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

Where primary legislation requires delegated legislation to prescribe a description of a scheme, the delegated legislation must add substantive descriptive content. Merely naming a scheme and repeating the statutory purpose does not satisfy that requirement. Administrative arrangements and guidance cannot cure the omission.

A mandatory employment scheme carrying benefit sanctions must also give each claimant written notice of the required activities and the applicable consequences. Until a compliant notice is given, the obligation to participate does not arise and purported sanctions have no effect.

Two recipients of Jobseeker’s Allowance sought judicial review of mandatory unpaid work arrangements made under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011. One had been directed to a sector-based work academy and the other to the Community Action Programme.

Foskett J, in [2012] EWHC 2292 (Admin), found breaches of the notification requirements but dismissed the applications on the other grounds. The claimants appealed. The principal issues were whether the Regulations prescribed schemes with sufficient specificity under the Jobseekers Act 1995, whether a published policy was required, whether the notices were adequate, and whether the arrangements involved forced or compulsory labour contrary to article 4(2) of the Convention.

1. Appeal allowed unanimously. The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 were unlawful and had to be quashed.

2. Section 17A(1) of the Jobseekers Act 1995 required regulations to make provision for schemes of a prescribed description. Regulations 2 and 3 merely named the Employment, Skills and Enterprise Scheme and substantially repeated the statutory purpose. They supplied no description of the schemes in which claimants could be compelled to participate. The administrative arrangements and detailed guidance could not cure that fundamental defect because the prescribed description had to appear in the Regulations themselves.

3. Sir Stanley Burnton agreed and emphasised the constitutional importance of parliamentary authorisation and oversight where non-compliance could result in the loss of subsistence benefit. Administrative programmes could not escape the statutory requirement by being called programmes or sub-schemes. Each was, in substance, a scheme requiring description in the Regulations. The court did not decide how much detail a valid description would require.

4. The Regulations adequately prescribed the circumstances and period of participation. Reading regulations 3 and 4 together, the relevant circumstances were selection by the Secretary of State and receipt of a compliant written notice. Reading regulations 4 and 5 together, the period was sufficiently defined by the events marking its beginning and end.

5. No separate formal policy statement was required because the statutory policy was already stated. The types of arrangement offered nevertheless had to be publicly available. Each claimant also had to know the obligations and sanctions before participation began. The notice given to Mr Wilson failed regulation 4(2), particularly because it did not specify his duties or adequately explain the sanctions. Consequently, no duty to participate arose and the purported sanctions were ineffective.

6. Article 4(2) added nothing independently on the facts. Properly authorised arrangements serving the statutory employment purpose would not engage the prohibition on forced or compulsory labour merely because the work was unpaid. The delay argument was rejected.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 were quashed: [2013] EWCA Civ 66.

2. Administrative Court: Foskett J granted permission to seek judicial review and found a breach of regulation 4(2), but dismissed the applications on the remaining grounds: [2012] EWHC 2292 (Admin).