Smith v Secretary of State for Work and Pensions

Regulations made under section 17A of the Jobseekers Act 1995 must prescribe a description of the scheme; merely naming a scheme is insufficient. The description need not specify every operational detail. It may identify the scheme’s general character and include a maximum period where Parliament has allowed flexibility. A scheme requiring work or work-related activity for up to 30 hours a week over four weeks therefore satisfied the description requirement. Legal certainty is not defeated merely because the description is broad: the participant’s notice must state what is required, and the regulatory definition supplies the legal boundary. A prescribed period may form part of the prescribed description. The appeal was dismissed.

Mr Smith, a jobseeker’s allowance claimant, was required to undertake work under the Mandatory Work Activity Scheme. He challenged the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 as ultra vires section 17A of the Jobseekers Act 1995. Hickinbottom J dismissed the judicial review claim: [2014] EWHC 843 (Admin). The Court of Appeal considered whether the Supreme Court’s decision in Reilly, which invalidated related regulations containing no prescribed description, governed the MWA Regulations, and whether the description provided was sufficient.

1. Disposition. Lord Justice Underhill delivered the judgment. Lord Justice Briggs and Lord Justice Richards agreed. The appeal was dismissed.
2. Distinction from Reilly. The Court was bound by Reilly if the MWA Regulations contained no description of the scheme. They were materially different from the ESES Regulations. Regulation 2(1) required the scheme to provide work or work-related activity and specified a maximum of 30 hours per week for four consecutive weeks. It was therefore impossible to say that the MWA Regulations did no more than give the scheme a name. The age and jobseeking conditions in regulation 3(2) were more naturally part of the prescribed circumstances, but the other features were sufficient.
3. Meaning of prescribed description. A prescribed description need only indicate the character of the scheme. It may describe a scheme involving training, education, mentoring, work or work-related activity. Sections 17A and 17B of the Jobseekers Act 1995 did not require further detail. Parliament recognised the need for flexibility so that schemes could be adapted to different groups and local circumstances. Reilly did not determine the degree of detail required because it concerned the extreme case of regulations containing no description.
4. Period and legal certainty. The prescribed period under section 17A(2) could form part of the prescribed description. The statutory requirements were not mutually exclusive. A broad description was not legally uncertain. The notice required by regulation 4(2)(d) gave the claimant specific details of what had to be done. Regulation 2(1) supplied the boundary for deciding whether the requirement fell within the scheme, while section 17A supplied the statutory authority. The principles discussed in Blackpool Corporation v Locker were not infringed.
5. Specification in regulations. Under section 35, the description was specified in the Regulations, primarily through regulation 2(1). It was unnecessary to rely on the alternative concept of matters being determined in accordance with regulations.

1. Court of Appeal (Civil Division). On 19 March 2015, the Court dismissed the appeal and upheld the dismissal of the claim.
2. High Court, Administrative Court. Hickinbottom J dismissed the judicial review claim in [2014] EWHC 843 (Admin), but granted permission to appeal.