Smith, R (on the application of) v The Secretary of State for Work and Pensions

A scheme regulation is intra vires where it adds a sufficient description to the statutory power, even though the description is broad and leaves operational detail to the statutory arrangements. A description of training or other activity is sufficiently certain if the activity must be designed to help a claimant obtain skills needed for employment. Mandatory notices must give practical details of the required participation, assessed in their statutory and factual context. The actively seeking employment condition does not impose a maximum of three job-search steps per week. Jobseeker’s agreements and that condition are distinct requirements. Fairness does not generally require publication of a scheme or policy to the public, and is assessed factually. A post-Work Programme regime may lawfully draw on several statutory powers.

The claimant challenged her referral to the Skills Conditionality scheme and the wider Post Work Programme Support measures. She argued that regulation 3(7) of the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 failed to prescribe a sufficient description of the scheme, that the notice of referral lacked required details, that jobseeker’s agreements could not require more than three job-search steps weekly, and that the measures were unlawful because their policy and operation had not been published.

She also argued that participation had been required without adequate consideration of her individual skills needs and without a single statutory source authorising the Post Work Programme Support regime. The central issues were whether the Skills Conditionality description and notice complied with the statutory scheme, and whether the Secretary of State had acted unlawfully in imposing and administering the measures.

1. Ground 1 dismissed. Regulation 3(7) of the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 was intra vires section 17A(1) of the Jobseekers Act 1995. It added a description requiring training or other activity designed to assist the claimant to obtain skills needed for employment. The description had to be read as a whole. Its breadth did not make it uncertain, since the activity had to be directed to an identified skills need and to obtaining employment.
2. The statutory scheme permitted considerable flexibility. The necessary description concerned the character of the scheme, while detail about an individual claimant’s participation could be supplied through the notice and arrangements under section 17B. The reasoning in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] EWCA Civ 66 did not determine the degree of detail required where, unlike the scheme in that case, the regulations contained a description.
3. Ground 2 dismissed. Regulation 5(2)(c) required details of what the claimant had to do. The effective notice identified a particular course, college, start date, duration and place of attendance. The absence of stated daily hours did not invalidate it. Adequacy depended on the scheme and surrounding circumstances, and the claimant had in fact been told the hours and understood the course requirements.
4. Ground 3 dismissed. Regulation 18(1) established a presumptive minimum of more than two steps unless one or two were all that was reasonable. It did not mean three and no more than three. The number reasonably expected could exceed three, depending on the claimant’s circumstances. A jobseeker’s agreement was a separate condition of entitlement from actively seeking employment, and disputed terms could be referred to the Secretary of State for adjudication. Any possible unlawfulness was in any event immaterial on the facts and no relief would have been granted.
5. Ground 4 dismissed. Fairness was fact-specific. The claimant knew the nature of the course, had an opportunity to seek further information and had made representations before the referral. R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68 did not impose a general legal requirement to publish scheme descriptions to the public.
6. The additional challenges also failed. Requiring long-term claimants to undertake an intensive course was not unlawful where a skills need had been identified. The Post Work Programme Support measures were supported by disparate statutory powers, including the scheme, jobseeker’s agreement, jobseeker’s direction, attendance and sanctions provisions. The claim failed on every ground and judgment was entered for the defendant.

The judgment records that permission had been granted on four grounds concerning the Skills Conditionality scheme. Permission had been refused for broader challenges to the Post Work Programme Support measures, although two aspects of that refusal were later admitted to appeal. This court determined the permitted grounds at first instance and entered judgment for the defendant.