Reilly & Anor v Secretary of State for Work And Pensions

Retrospective legislation which deliberately alters the outcome of pending civil proceedings engages article 6, even where it applies generally rather than targeting named litigants. Such interference requires compelling grounds in the general interest. A desire to eliminate an alleged windfall or save modest public expenditure will not suffice where the original legal defects concerned substantive statutory safeguards.

A benefit claim is a possession under A1P1 only if it accrued under domestic law or has a sufficiently certain legal basis. A good arguable claim or appealable decision does not suffice. Clear retrospective legislation remains effective despite incompatibility with Convention rights where it cannot be read compatibly under section 3 of the Human Rights Act 1998.

The appeals concerned the retrospective validation of jobseeker’s allowance sanctions by the Jobseekers (Back to Work Schemes) Act 2013. Earlier litigation had established defects in the regulations governing employment schemes and in notices issued to claimants.

In the judicial review proceedings, Lang J held in [2014] EWHC 2182 (Admin) that the 2013 Act infringed article 6 in relation to claimants who had already brought proceedings. She made a declaration of incompatibility but rejected a claim under A1P1. The Secretary of State appealed and the claimants cross-appealed.

In separate test appeals, a majority of the Upper Tribunal held in [2015] UKUT 0056 (AAC) that the Act could be read so as not to affect pending benefit appeals. The Secretary of State appealed. Further issues concerned the Upper Tribunal’s remedial discretion and the information which must be provided to claimants participating in the Work Programme.

1. Judicial review appeal dismissed. The 2013 Act infringed article 6 in relation to Mr Hewstone and other claimants who had appealed against sanctions before the Act came into force. Legislation need not target named litigants. It engages the Zielinski principle where part of its deliberate purpose is to alter the outcome of a class of pending proceedings.

2. The interference was not justified by compelling grounds in the general interest. The absence of a prescribed scheme description and the failure to give claimants adequate details were substantive defects, not mere technical loopholes. They protected parliamentary supervision and enabled claimants to assess and challenge requirements. Respect for the rule of law extended to claimants who might otherwise receive an undeserved benefit. The likely cost relating only to pending appeals was too small to justify the interference. The declaration of incompatibility therefore remained in force.

3. Cross-appeal dismissed. Mr Hewstone had no possession protected by A1P1. A valid sanction decision meant that jobseeker’s allowance never became payable for the relevant period. The decision remained effective unless revised, superseded or overturned. His repayment claim also lacked the practical certainty required for an asset: the authorities had reached different conclusions, novel issues remained, and an appeal was pending. A good arguable case was insufficient.

4. Upper Tribunal appeal allowed. The words “for all purposes” in section 1(1) of the Jobseekers (Back to Work Schemes) Act 2013 clearly applied to sanctions already under appeal. Neither the presumption against unfair retrospectivity nor section 3 of the Human Rights Act 1998 permitted an exclusion to be read into the Act. The proposed reading would contradict its grain.

5. The Upper Tribunal could not use its discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 to preserve an erroneous First-tier Tribunal decision. Sections 4(6)(a) and 6(2) of the Human Rights Act 1998 preserve the operation of incompatible primary legislation.

6. The prior information duty is a flexible requirement of administrative fairness. It continues after referral to the Work Programme. Before a particular activity is imposed, a claimant must receive enough information to make meaningful representations about suitability or practical obstacles. Any failure invalidates the requirement only if material. Mr Bevan had made the relevant representation about travel costs, and the undisclosed guidance would not have affected either his representation or the provider’s response. His sanction therefore stood.

The sanctions against Ms Jeffrey, Mr Bevan and Mr Green stood.

1. Court of Appeal: dismissed the Secretary of State’s appeal from the declaration of incompatibility, dismissed the claimants’ A1P1 cross-appeal, and allowed the appeal from the Upper Tribunal.
2. Administrative Court: Lang J held in [2014] EWHC 2182 (Admin) that the Jobseekers (Back to Work Schemes) Act 2013 was incompatible with article 6 as applied to claimants with pending proceedings, but rejected the A1P1 claim.
3. Upper Tribunal: by a majority, held in [2015] UKUT 0056 (AAC) that the 2013 Act could be read so as not to affect sanctions already under appeal. It dismissed the Secretary of State’s appeals and allowed Mr Bevan’s appeal.
4. First-tier Tribunal: allowed the appeals of Ms Jeffrey and Mr Green against their sanctions but dismissed Mr Bevan’s appeal.