MB v The Secretary of State for Work and Pensions

Where a tribunal had upheld a jobseeker’s allowance sanction before the remedial provision came into force, Jobseekers (Back to Work Schemes) Act 2013, section 1A(4), required the Secretary of State to supersede that tribunal decision. The mandatory disapplication of the Act’s validating provisions meant that the unlawful 2011 Regulations could not provide a lawful basis for the sanction. Once the sanction had been superseded in the claimant’s favour, the tribunal decision retained sufficient legal existence for the Upper Tribunal to determine the appeal but had no operative effect. Where no wider issue remained, the appropriate course was to dismiss the appeal.

The appellant appealed against a First-tier Tribunal decision dated 20 December 2012, which upheld the Secretary of State’s decision that his jobseeker’s allowance was not payable for the period 16 to 29 February 2012 because he had failed without good cause to participate in the Work Programme under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011.

The appeal had been stayed pending the legislative response to the declaration of incompatibility upheld in Reilly (No 2) and TJ and others [2016] EWCA Civ 413. Following the Remedial Order made under section 10 of the Human Rights Act 1998, the Secretary of State superseded the First-tier Tribunal’s decision and overturned the sanction. The central issue was whether the Upper Tribunal should nevertheless determine the original appeal.

1. Appeal dismissed. The Secretary of State had complied with the duty imposed by section 1A(4) of the Jobseekers (Back to Work Schemes) Act 2013 by superseding the First-tier Tribunal’s decision and overturning the sanction.
2. Section 1A(5) required the validating provisions in section 1 of the 2013 Act to be disregarded. The effect was that the 2013 Act did not apply to the appellant’s case. This restored the effect of the Supreme Court’s judgment in R (on the application of Reilly and another) v Secretary of State for Work and Pensions [2013] UKSC 68, in which the 2011 Regulations had been declared unlawful as ultra vires.
3. Consequently, there was no lawful basis for sanctioning payment of the appellant’s jobseeker’s allowance under the 2011 Regulations for the period in issue. The supersession decision meant that jobseeker’s allowance was payable for that period.
4. The supersession removed the operative consequence challenged in the appeal. Although the First-tier Tribunal’s decision retained sufficient legal existence for the Upper Tribunal to dispose of the appeal, it no longer had operative effect. The appellant had not identified any remaining issue of wider importance or principle. In those circumstances, dismissal, rather than remittal or further determination of the merits, was appropriate.

• Upper Tribunal (Administrative Appeals Chamber): The appeal from the First-tier Tribunal was dismissed after the Secretary of State superseded the tribunal’s decision and overturned the sanction.
• First-tier Tribunal (Social Entitlement Chamber): On 20 December 2012, upheld the decision that jobseeker’s allowance was not payable for the period 16 to 29 February 2012.