Smith v Secretary of State for Work and Pensions

Section 17A of the Jobseekers Act 1995, which was introduced by section 1 (2) of the Welfare Reform Act 2009, empowers the Secretary of State to make regulations imposing on persons claiming jobseeker’s allowance (“JSA”) a requirement to participate in schemes designed to assist them to obtain employment. Various regulations have been made purportedly pursuant to section 17A, including the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 (“the MWA Regulations”), which were made on 9 March 2011. The MWA Regulations established a scheme (“the MWA scheme”) under which jobseekers may be required, in summary, to do unpaid “work or work-related activity” over a period of four weeks to improve their prospects of obtaining employment: I set out the full terms (so far as material) below.

The Appellant, Mr Nicholas Smith, was unemployed and in receipt of JSA for several years. In March 2012 he was required to do work under the MWA scheme, and he did so over four weeks in March and April that year. On 17 May he commenced judicial review proceedings challenging the lawfulness of the MWA Regulations on various grounds. He was eventually given permission on a single ground, namely that the Regulations are ultra vires the provisions of section 17A.

In the meantime a similar challenge had been brought against another set of Regulations purportedly made under section 17A, the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (“the ESES Regulations”). In R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68, [2014] AC 453, the Supreme Court upheld the decision of this Court ([2013] EWCA Civ 66, [2013] 1 WLR 2239) quashing the ESES Regulations. The essential issue in this appeal is whether the reasoning applied in Reilly applies equally in the case of the MWA Regulations. By a judgment handed down on 27 March 2014, [2014] EWHC 843 (Admin), Hickinbottom J held that there were material differences between the two cases and dismissed the claim; but he gave permission to appeal.

Before us Mr Smith represented himself, as he did below. His written and oral submissions were measured and articulate. The Secretary of State was represented by Mr Julian Milford of counsel.

Section 17A of the 1995 Act is headed “Schemes for assisting persons to obtain employment: ‘work for your benefit’ schemes etc”. In the form in which it was first enacted, which is the relevant form for our purposes, it reads, so far as material, as follows:

“(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.

(4)

…

(5)

Regulations under this section may, in particular, make provision—

(a)

for notifying participants of the requirement to participate in a scheme within subsection (1);

(b)-(f) ...

(6)-(9) …

(10)

In this section ...“the jobseeking conditions” means the conditions set out in section 1 (2) (a) to (c).”

(The conditions referred to in sub-section (10) are that the person in question is available for employment, has entered into a jobseeker's agreement which remains in force, and is actively seeking employment.)

Section 17B is headed “Section 17A: Supplemental” and contains provisions empowering the Secretary of State (to put it broadly) to make the necessary arrangements, including payments, for the implementation of schemes made under section 17A (1).

The interpretation section of the Act, section 35, defines “prescribed” (subject to immaterial exceptions) as meaning “specified in or determined in accordance with regulations”.

Part 1 of the Regulations includes, at regulation 2 (1), the following definition:

“‘the Mandatory Work Activity Scheme’ means a scheme within section 17A (schemes for assisting persons to obtain employment: ‘work for your benefit’ schemes etc.) of the Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to provide work or work-related activity for up to 30 hours per week over a period of four consecutive weeks with a view to assisting claimants to improve their prospects of obtaining employment.”

Part 2 contains the primary operative provisions of the Regulations, and I should set it out in full:

“3.

Selection for participation in the Scheme

(1)

The Secretary of State may select a claimant who is aged at least 18 for participation in the Scheme.

(2)

Only a claimant who is required to meet the jobseeking conditions may be required to participate in the Scheme.

4.

Requirement to participate and notification

(1)

Subject to regulation 5, a claimant (“C”) selected under regulation 3 is required to participate in the Scheme where the Secretary of State gives C a notice in writing complying with paragraph (2).

(2)

The notice must specify—

(a)

that C is required to participate in the Scheme;

(b)

the day on which C's participation will start;

(c)

that C's participation will be for four weeks;

(d)

details of what C is required to do by way of participation in the Scheme;

(e)

that the requirement to participate in the Scheme will continue until C is given notice by the Secretary of State that C's participation is no longer required, or C's award of jobseeker's allowance terminates, whichever is earlier;

(f)

information about the consequences of failing to participate in the Scheme.

(3)

Any changes made to the requirements mentioned in paragraph (2)(d) after the date on which C's participation starts must be notified to C in writing.

5.

Circumstances in which requirement to participate in the Scheme ceases to apply

(1)

A requirement to participate in the Scheme ceases to apply to a claimant (“C”) if—

(a)

the Secretary of State gives C notice in writing that C is no longer required to participate in the Scheme, or

(b)

C's award of jobseeker's allowance terminates, whichever is earlier.

(2)

The requirement ceases to apply on the day specified in the notice.”

I need not trouble with Parts 3-6, which prescribe sanctions for non-compliance and deal with ancillary matters.

The ESES Regulations had a broadly similar structure to the MWAS Regulations. For present purposes their provisions can be sufficiently summarised as follows:

Purportedly pursuant to the ESES Regulations the Secretary of State had established a number of particular schemes or programmes which were said to constitute part of the over-arching “ESE scheme”. The claimants in Reilly had been required to work on two of these, a “sector based work academy scheme” (“the sbwa scheme”) and a Community Action Programme (the “CAP”).

This Court held that the ESES Regulations were ultra vires the 1995 Act because they contained no “description” of the ESE scheme: the Regulations did no more than prescribe that there should be an ESE scheme but they said nothing whatever about what it consisted of. The leading judgment was given by Pill LJ. In view of the full reasoning of the Supreme Court which I set out below, I will not attempt to summarise it. The essence lies in his observation (para. 51) that:

“Simply to give a scheme a name cannot, in context, be treated as a prescribed description of a scheme in which claimants may be required to participate, within section 17A (1).”

Sir Stanley Burnton delivered a concurring judgment, parts of which were quoted in the judgment of Lord Neuberger and Lord Toulson in the Supreme Court: see para. 15 below. Black LJ agreed with both judgments.

On the same day that the decision of the Court of Appeal was handed down, which was 12 February 2013, the Secretary of State made the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (“the 2013 Regulations”), which prescribed seven schemes corresponding (it appears) to some or all of the individual schemes/programmes which had previously been treated as part of “the ESE scheme”. The descriptions of those schemes are not directly material for our purposes, but I should set them out because they were referred to in argument in the Supreme Court as examples of how the Secretary of State could without difficulty have given fuller descriptions had she chosen. They appear at paragraphs (2)-(8) of regulation 3 as follows:

“(2)

Day One Support for Young People is a scheme comprising up to 30 hours per week in a work placement for the benefit of the community and up to 10 hours per week of supported work search over a period of 13 weeks, for any claimant aged between 18 and 24 years who has less than 6 months work history since leaving full-time education.

(3)

The Derbyshire Mandatory Youth Activity Programme is a scheme delivered in the Derbyshire Jobcentre Plus District comprising up to 30 hours per week of work-related activity for the benefit of the community and up to 6 hours per week of supported work search over a period of 8 weeks, for any claimant aged between 18 and 34 years.

(4)

Full-time Training Flexibility is a scheme comprising training of 16 to 30 hours per week, for any claimant who has been receiving jobseeker's allowance for a continuous period of not less than 26 weeks ending on the first required entry date to the scheme.

(5)

New Enterprise Allowance is a scheme designed to assist a claimant into self-employed earner's employment comprising guidance and support provided by a business mentor, access to a loan to help with start-up costs (subject to status) and a weekly allowance for a period of 26 weeks once the claimant starts trading.

(6)

The sector-based work academy is a scheme which provides, for a period of up to 6 weeks, training to enable a claimant to gain the skills needed in the work place and a work experience placement for a period to be agreed with the claimant, and either a job interview with an employer or support to help participants through an employer's application process.

(7)

Skills Conditionality is a scheme comprising training or other activity designed to assist a claimant to obtain skills needed to obtain employment.

(8)

The Work Programme is a scheme designed to assist a claimant at risk of becoming long-term unemployed in which, for a period of up to 2 years, the claimant is given such support as the provider of the Work Programme considers appropriate and reasonable in the claimant's circumstances, subject to minimum levels of support published by the provider, to assist the claimant to obtain and sustain employment which may include work search support, provision of skills training and work placements for the benefit of the community.”

On 26 March 2013 the Jobseekers (Back to Work Schemes) Act 2013 came into force. Its effect is retrospectively to validate the ESES Regulations.

The decision of the Supreme Court was promulgated on 30 October 2013. It upheld the decision of this Court. The only judgment was delivered by Lord Neuberger and Lord Toulson, with whom Lord Mance, Lord Clarke and Lord Sumption agreed. I should set out the relevant part in full (pp. 468-470):

“The First Issue: Were the 2011 Regulations ultra vires ?

43.

The question to which this first issue gives rise is whether the 2011 Regulations satisfied the requirements of section 17A(1), as expanded by section 35 of the 1995 Act. The principal point in this connection is whether, as the Court of Appeal held, regulation 2 of the 2011 Regulations … contained a sufficiently prescribed description of the sbwa scheme and the CAP.

44.

To recapitulate,

(a)

section 17A(1) authorised the making of regulations which “impos[ed]” on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment”, and, by section 35, “prescribed” means “specified in or determined in accordance with regulations”; and

(b)

regulation 2 identified the Employment, Skills and Enterprise Scheme, which “means a scheme within section 17A … 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 search)”.

45.

Whether one takes the Employment, Skills and Enterprise Scheme (which is really a group of schemes including the sbwa scheme and the CAP) as a single scheme, or whether, as seems more natural, one takes the sbwa scheme and the CAP as separate schemes, they were undoubtedly schemes which fell within the ambit of regulation 2. However, the question which arises is whether regulation 2 was or contained a “prescribed description” of the scheme in question. In other words, the question is whether regulation 2 could fairly be said to have been a “regulation” either (i) which “specified a “description” of (the Employment, Skills and Enterprise Scheme or) the sbwa scheme or the CAP, or (ii) “in accordance with” which (the Employment, Skills and Enterprise Scheme or) the sbwa scheme or the CAP could be said to have been “determined”.

46.

For the Secretary of State, Mr Eadie QC argued that the self-evident need for flexibility in the precise characteristics of any scheme introduced under section 17A renders it unlikely that Parliament can have intended much, if anything, in the way of specific information about any scheme to be included in any regulation made thereunder. The need for flexibility cannot be doubted. As Pill LJ said in the Court of Appeal [2013] 1 WLR  2239, para 49, “[t]he needs of jobseekers will vary infinitely, as will the requirements of providers prepared to participate in arrangements with them”. Over and above the question of flexibility, as Ms Lieven effectively accepted, once one decides that section 17A(1) requires more specific information about a scheme than what is contained in regulation 2, it is not easy to identify the precise extent of the information required.

47.

However, even bearing in mind these points, it appears clear to us that regulation 2 does not satisfy the requirements of section 17A(1). The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute. Further, particularly where the statute concerned envisages regulations which will have a significant impact on the lives and livelihoods of many people, the importance of legal certainty and the impermissibility of sub-delegation are of crucial importance. The observations of Scott LJ in Blackpool Corpn v Locker [1948] 1 KB 349, 362 are in point: “John Citizen” should not be “in complete ignorance of what rights over him and his property have been secretly conferred by the minister”, as otherwise “For practical purposes, the rule of law … breaks down because the aggrieved subject’s legal remedy is gravely impaired”.

48.

More specifically, in relation to the point at issue, we cannot improve on the reasoning of Sir Stanley Burnton in the Court of Appeal, where he said, at paras 75-76:

“75.

Where Parliament in a statute has required that something be prescribed in delegated legislation it envisages, and I think requires, that the delegated legislation adds something to what is contained in the primary legislation. There is otherwise no point in the requirement that the matter in question be prescribed in delegated legislation. However, the description of the Employment, Skills and Enterprise Scheme in the 2011 Regulations adds nothing to the description of such schemes in the Act … In effect the Secretary of State contends that any scheme he creates is a scheme within the meaning of section 17A notwithstanding that it is not described in any regulations made under the Act. Furthermore, it is not possible to identify any provision of the regulations that can be said to satisfy the requirement that the description be ‘determined in accordance with’ the Regulations …

76.

Description of a scheme in regulations is important from the point of view of parliamentary oversight of the work of the administration. It is also important in enabling those who are required to participate in a scheme, or at least those advising them, to ascertain whether the requirement has been made in accordance with parliamentary authority.”

49.

Sir Stanley immediately went on to say,

“The question as to precisely how much detail must be included in the Regulations in order to comply with the requirements of the Act does not arise for consideration in this appeal, since the Regulations contain none.”

However, while it is a fundamental duty of the courts to ensure that the executive carries out its functions in accordance with the requirements of Parliament, as expressed in primary legislation, it is also incumbent on courts to be realistic in the standards they set for such compliance. In this case, it is not only self-evident, but it is clear from the contents of regulation 3 of the 2013 Regulations … that it is not unrealistic to hold that the Secretary of State could have done significantly more than was done in the earlier regulation 2 to describe the individual schemes such as the sbwa scheme and the CAP. It is neither necessary nor appropriate for us to decide whether regulation 3 of the 2013 Regulations complies with the requirements of section 17A: the issue is not before us, and has not been argued, and in any event it may be influenced by the provisions of the 2013 Act.

50.

Given the conclusion that the 2011 Regulations are ultra vires because they fail to provide a “prescribed description” of any scheme, it is strictly unnecessary to consider the further grounds raised by Miss Reilly and Mr Wilson for contending that the 2011 Regulations were invalid, but we will do so briefly. Those grounds are that the Regulations fell foul of the requirements of section 17A that any regulations made thereunder must, under subsection (1), “prescribe” the “circumstances” in which, and, under subsection (2), the “period” for which, claimants may be required to participate in prescribed schemes.

51.

The Court of Appeal rejected these two further grounds, and, while accepting that each ground is not without force, we agree with the Court of Appeal. The argument that the 2011 Regulations fail to prescribe the circumstances in which a claimant may be required to participate in a scheme, was largely based on regulation 3 of the 2011 Regulations … . It is said that, by merely providing that the Secretary of State may select a claimant for participation in a scheme, it suffers from the same vice as the alleged prescribed description of the schemes, in that it does no more than sub-delegate, in a completely unqualified way, the whole exercise of prescribing the circumstances to the Secretary of State. However, as Pill LJ indicated in para 58 of his judgment, one must also consider regulation 4 in this context. It seems to us that, particularly given the need for flexibility, regulation 4 contains sufficient detail to justify the conclusion that the circumstances in which a claimant can be required to participate in a scheme is to be “determined in accordance with” the 2011 Regulations. The fact that the regulation is concerned with the contents of a notice is irrelevant to this issue, but the very open-ended nature of what is left to the Secretary of State by regulation 4 could well be a problem in other circumstances where flexibility was not so obviously essential.

52.

Substantially the same point can be made about the statutory requirement in section 17A(2) for a period to be prescribed and the terms of regulations 4(2)(d) and 5(2) of the 2011 Regulations. Ms Lieven argued that the Regulations thus provide for an “open-ended period”, but we do not see why that is intrinsically incapable of being a “prescribed period”. Again, we agree with Pill LJ, who said, at para 59, that the period is “specified by way of events with which it will begin and end”, and that, bearing in mind the “undoubted need for flexibility where possible”, it is “a tenable specification”.”

Purely for reasons of economy, I will not summarise Hickinbottom J’s judgment here: the issue which we have to decide is one of pure law, and I think it is most straightforward if I approach it afresh rather than through the prism of his reasoning.

The first question for us is whether the MWAS Regulations contain anything more by way of description than appeared in the ESES Regulations. If they do not, then we are bound by the decision in Reilly.

In my view it is clear that the MWAS Regulations do indeed contain some elements by way of “description” of the MWA scheme, and that accordingly they cannot be treated as identical to the ESES Regulations. Specifically, by the definition in regulation 2 (1):

Mr Smith challenged that reasoning, which is essentially also the reasoning of Hickinbottom J, in two ways, which I take in turn.

First, he submitted that the requirement that the scheme be designed to provide “work-related activity” could not form part of its “description” within the meaning of section 17A (1) since such a requirement was already present in the statute: see section 17A (2). I do not accept that. Sub-section (2) does no more than identify a particular requirement which a scheme may contain, namely a requirement to undertake work or work-related activity. Indeed it might be said to identify a particular “description” of scheme which regulations made under the section could prescribe.

Secondly, he submitted that the duration of a scheme, whether in terms of hours per week or number of weeks, could not form part of its “description”. He pointed out that section 17A (1) and (2) refer to three matters that have to be “prescribed” (which means prescribed by the regulations themselves – see section 35), namely the “circumstances” in which claimants could be required to participate in a scheme, the “description” of scheme in which they could be required to participate, and the “period” during which they could be so required: those were, he submitted, discrete and mutually exclusive. I cannot accept that either. The first two matters appear in sub-section (1) and are indeed apparently distinct. “Period”, however, appears in sub-section (2), which is, as I have already noted, subordinate to sub-section (1). There is no reason, as a matter of the structure of the drafting, why the prescribed period need not form part of the prescribed description. And simply as a matter of language I see nothing awkward in referring to the period for which a claimant is required to participate in a scheme as part of its “description”.

Mr Milford also submitted that the problem about the ESE scheme was that it was in reality an “umbrella” scheme for a number of “sub-schemes” such as the sbwa scheme and the CAP: there was no such problem in the present case. It is true that that is a distinction between the two cases, but the existence of such sub-schemes seems to me to be a consequence of the fundamental problem on which the Supreme Court relied – that is, the absence of any description of the ESE scheme – rather than the essence of the problem.

For those reasons I do not believe that the present case must be regarded as governed by the decision in Reilly. That accordingly raises the second issue, namely whether the features which I have identified above constitute a sufficient description to satisfy the requirements of section 17A (1). It was Mr Smith’s case that Parliament must have intended something more specific than the mere description “work or work-related activity”, which was so wide as to be practically meaningless and placed no limit on the nature of the schemes that might be made. He referred to the passage from the judgment of Scott LJ in Blackpool Corporation v Locker [1948] 1 KB 369 quoted by Lord Neuberger and Lord Toulson at para. 47 of their judgment in Reilly: see above.

In deciding that question I do not consider that any real help can be got from the reasoning, either of this Court or of the Supreme Court, in Reilly (save possibly in one respect, to which I will return). They were faced with an extreme case, since, as Sir Stanley Burnton pointed, the Regulations said literally nothing about the description of the ESE scheme. They did not have to consider what degree of detail was necessary in order to constitute an adequate “description”; and both explicitly disavowed any intention to do so. (In the Supreme Court this was in the context of the question whether the descriptions of the various schemes given in regulation 3 of the 2013 Regulations satisfied section 17A (1): see para. 49 of the judgment of Lord Neuberger and Lord Toulson.)

In my view the Regulations do prescribe a description of the MWA scheme within the meaning of section 17A (1). On a natural reading the phrase “prescribed description” seems to me to connote no more than an indication of the character of the scheme provided for, such as a scheme in which the claimant was required to undergo training or education or to work with a mentor, or – as here – to do work or work-related activity. I see nothing in the scheme of sections 17A and 17B to suggest that Parliament intended that the Regulations should go into any further detail. If that had been the intention I would have expected that section (or section 17B) to specify the particular matters which they were intended to cover.

It is in fact in my view reasonably clear that Parliament did not go down that path because it recognised the need for the schemes which were to be provided to allow for considerable flexibility in their application to particular groups of claimants. A witness statement was lodged in these proceedings from Vikki Knight, a civil servant in the Labour Market and Conditionality Directorate of the Department of Work and Pensions, explaining the system by which placement of claimants for work or work-related activity was to be delivered by different “providers” in different parts of the country. In the statement she emphasises the importance of flexibility in enabling the Department to provide “MWA placements that are varied and locally driven, and which can be tailored to claimants’ individual circumstances”. Those considerations would have been evident to Parliament when section 17A was enacted. Similar evidence was lodged in Reilly, and both this Court and the Supreme Court accepted the validity of the point as a general proposition, albeit that it could not get over the difficulty caused by the fact that the ESES Regulations contained no description at all: see para. 46 of the judgment of Lord Neuberger and Lord Toulson, itself quoting the judgment of Pill LJ. (This is the one point on which Reilly does give assistance on the second issue.)

Mr Smith contended that a construction of section 17A (1) which allows Regulations to be made with so little detail as to the work to be done would contravene the principle of legal certainty, to which Lord Neuberger and Lord Toulson refer at para. 47 of their judgment. I do not accept this. It is necessary to distinguish the different questions which a claimant might ask when presented with a requirement to participate in what is said to be an MWA scheme. It is of course of the first importance that he should know with specificity what he was being required to do; but that is achieved by the notice provisions in regulation 4, and in particular by paragraph (2) (d), under which he must be given in writing “details of what [he] is required to do by way of participation in the scheme” (as to this, cf. the observations of Lord Neuberger and Lord Toulson at para. 51 of their judgment). Secondly, he might legitimately want to know whether that requirement fell within the terms of the Regulations, but that question will be answerable by reference to the definition in regulation 2 (1): it will fall within the scheme if it constitutes “work or work-related activity” and the prescribed period of participation is not exceeded. I see no uncertainty there: the fact that the description is wide does not mean that it is uncertain. Thirdly, there is the question whether Regulations providing for such a scheme fall within the scope of the powers given by section 17A. As to that, once it is decided, as I would decide, that section 17A allows for Regulations to be made which describe a scheme in such general terms, there is again no problem of uncertainty. I see no infringement of the important principles asserted by Scott LJ in Blackpool Corporation v Locker.

I should mention for completeness one point that arose by reference to the definition of “prescribed” in section 35 of the Act, by which matters may be prescribed either by being “specified in” regulations or by being “determined in accordance with” them. Mr Smith advanced some submissions on the basis that the Secretary of State’s case depended on the latter alternative, i.e. that the description of the MWA scheme had been determined in accordance with the Regulations. But Mr Milford confirmed that it was his case that the description was specified in the Regulations – that is, primarily, by the definition in regulation 2 (1). That seems to me plainly the correct analysis, and submissions based on the meaning of “determined in accordance with” do not arise.

I would dismiss this appeal. I should say that, though I have not set out Hickinbottom J’s reasoning, I do not believe that there is any substantial difference between mine and his.

I agree.

I also agree.