Smith, R (on the application of) v The Secretary of State for Work and Pensions, Court of Appeal - Administrative Court, July 31, 2015, [2015] EWHC 2284 (Admin)

Resolution Date:July 31, 2015
Issuing Organization:Administrative Court
Actores:Smith, R (on the application of) v The Secretary of State for Work and Pensions
 
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Neutral Citation Number: [2015] EWHC 2284 (Admin)

Case No: CO/13860/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN BIRMINGHAM

Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Birmingham

Date: 31/07/15

Before :

MR JUSTICE HICKINBOTTOM

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Between :

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The Claimant appeared in person

Andrew Sharland (instructed by the Government Legal Department) for the Defendant

Hearing date: 28 July 2015

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Approved Judgment

Mr Justice Hickinbottom:Introduction

  1. The Claimant Mrs Jane Smith challenges the decision to require her to participate in the Skills Conditionality scheme under the provisions of the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (SI 2013 No 276) (``the SAPOE Regulations''); and, more generally, the Jobseeker's Allowance Post Work Programme Support measures of which that requirement was part.

  2. Before me, the Claimant appeared in person, presenting her submissions with moderation and clarity. Mr Andrew Sharland appeared for the Defendant Secretary of State. At the outset, I thank both for their contribution.

    The Law

  3. Jobseeker's allowance (``JSA'') is a benefit deriving from the Jobseekers Act 1995 (``the 1995 Act''). In this judgment, statutory references are to the 1995 Act, unless the contrary appears.

  4. The conditions of entitlement to JSA are set out in section 1(2) and are, so far as relevant to this claim, as follows:

    ``Subject to the provisions of this Act, a claimant is entitled to a [JSA] if he -

    (a) is available for employment;

    (b) has entered into a jobseeker's agreement which remains in force;

    (c) is actively seeking employment...''.

    JSA is payable in respect of a week (section 1(3)).

  5. ``Actively seeking employment'' is defined in section 7(1), thus:

    ``For the purposes of this Act, a person is actively seeking employment in any week if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment.''

    Section 7(2) gives the Secretary of State power to make regulations ``with respect to steps which it is reasonable, for the purposes of subsection (1), for a person to be expected to have to take in any week''; and as to circumstances to be taken into account in determining whether, in relation to steps taken by any person, the requirements of subsection (1) are satisfied in any week.

  6. The relevant regulations under that section are the Jobseeker's Allowance Regulations 1996 (SI 1996 No 207) (``the JSA Regulations''). Regulation 18(1) provides:

    ``For the purposes of section 7(1) (actively seeking employment) a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week.''

    Regulation 18(2) sets out examples of steps that it may be reasonable for a person to be expected to have to take in any week, e.g. applications for employment, seeking information about employment, registration with an employment agency etc. Regulation 18(3) sets out circumstances that should be taken into account in determining whether, in relation to any steps taken by a person, the actively seeking work requirements of section 7(1) are met, e.g. the claimant's skills, experience and abilities, any physical or mental limitations, and the time that has elapsed since he was last in employment.

  7. Jobseeker's agreements are dealt with in section 9 of the 1995 Act. So far as relevant to this claim, section 9 provides:

    ``(1) An agreement which is entered into by a claimant and an employment officer and which complies with the prescribed requirements in force at the time when the agreement is made is referred to in this Act as `a jobseeker's agreement'.

    (2) A jobseeker's agreement shall have effect only for the purposes of section 1.

    (3) A jobseeker's agreement shall be in writing and be signed by both parties.

    (4) A copy of the agreement shall be given to the claimant.

    (5) An employment officer shall not enter into a jobseeker's agreement with a claimant unless, in the officer's opinion, the conditions mentioned in section 1(2)(a) and (c) would be satisfied with respect to the claimant if he were to comply with, or be treated as complying with, the proposed agreement...''.

  8. If an employment officer and claimant cannot agree upon the terms of a jobseeker's agreement, the officer is therefore proscribed from entering into it. There is consequently a need for a deadlock-breaking provision because, without a jobseeker's agreement, a claimant cannot obtain JSA. That provision is made in section 9(6) and (7):

    ``(6) The employment officer may, and if asked to do so by the claimant shall forthwith, refer a proposed jobseeker's agreement to the Secretary of State for him to determine -

    (a) whether, if the claimant concerned were to comply with the proposed agreement, he would satisfy -

    (i) the condition mentioned in section 1(2)(a), or

    (ii) the condition mentioned in section 1(2)(c); and

    (b) whether it is reasonable to expect the claimant to have to comply with the proposed agreement.

    (7) On a reference under subsection (6) the Secretary of State -

    (a) shall, so far as practicable, dispose of it in accordance with this section before the end of the period of 14 days from the date of the reference;

    (b) may give such directions, with respect to the terms on which the employment officer is to enter into a jobseeker's agreement with the claimant, as the Secretary of State considers appropriate;

    (c) may direct that, if such conditions as he considers appropriate are satisfied, the proposed jobseeker's agreement is to be treated (if entered into) as having effect on such date, before it would otherwise have effect, as may be specified in the direction...''.

  9. The contents of a jobseeker's agreement are prescribed by regulation 31 of the JSA Regulations, to include:

    ``(e) the action which the claimant will take -

    (i) to seek employment; and

    (ii) to improve his prospects of finding employment.

    (f) ...

    (g) a statement of the claimant's right -

    (i) to have a proposed jobseeker's agreement referred to the Secretary of State

    (ii) to seek revision or supersession of any determination of, or direction given by, the Secretary of State; and

    (iii) to appeal to the First-tier Tribunal (Social Entitlement Chamber) against any determination of, or direction given by, the Secretary of State following a revision or supersession.

    (h) ... ''

  10. As can be seen, there is thus a comprehensive appeal route from a decision of an employment officer as to the contents of a jobseeker's agreement, through the Secretary of State, and thence to the First-tier Tribunal (Social Entitlement Chamber) and onwards on a point of law to the Upper Tribunal (Administrative Appeals Chamber) and Court of Appeal (Civil Division).

  11. In November 2013, there were 1.16m people aged 18 or over in receipt of JSA, of whom 360,000 had been in receipt of the benefit for more than 12 months. In 2013-14, the public expenditure on the benefit was £4.35bn. Given those figures, it is understandable that the Government wish to help and encourage those on JSA to obtain work.

  12. From 12 November 2009, section 1(2) of the Welfare Reform Act 2009 added section 17A to the 1995 Act, under the heading ``Schemes for assisting persons to obtain employment: `work for your benefit' schemes etc'', in the following terms (again, insofar as relevant to this claim):

    ``(1) Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment.

    (2) Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment.

    (3) In subsection (2) `work-related activity', in relation to any person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.

    ...

    (5) Regulations under this section may, in particular, make provision -

    (a) for notifying participants of the requirement to participate in a scheme within subsection (l);

    (b) for securing that participants are not required to meet the jobseeking conditions or are not required to meet such of those conditions as are specified in the regulations;

    . . .

    (10) In this section -

    ...

    `participant', in relation to any time, means a person who is required at that time to participate in a scheme within subsection (1)''.

    Section 35 provides that ``prescribed'' here means ``specified in or determined in accordance with regulations''.

  13. Section 17B contains provisions empowering the Secretary of State to make arrangements for the implementation of schemes made under section 17A.

  14. Various regulations have been purportedly made under section 17A from time-to-time, two of which have been subject to the scrutiny of the higher courts.

  15. The first to be considered were the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (SI 2011 No 917) (``the ESES Regulations''). Regulation 2 defined ``the Scheme'' as ``the Enterprise, Skills and Enterprise Scheme'', which in turn it defined as follows:

    ```The Enterprise, Skills and Enterprise Scheme' [`the ESE Scheme'] means a scheme within section 17A (schemes for assisting persons to obtain employment: `work for your benefit' schemes etc) of the [1995] Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job...

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