Prior to February 2013, several Jobseekers Allowance claimants were referred to certain employment schemes. Sanctions were imposed on some claimants for non-compliance under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (“the ESE Regulations”).
In the case of Reilly (No. 1), the Government’s ‘back to work’ schemes were challenged by a graduate who had to undertake an unpaid work placement at Poundland and a HGV driver who had to undertake unpaid work collecting and renovating furniture.
They were forced to participate in the scheme in order to continue receiving benefits.
The claimants won their case – the Court of Appeal held that the ESE Regulations were unlawful. This ruling meant that anyone sanctioned and stripped of benefits under these Regulations could potentially claim these back from the Government.
However, to avoid having to repay the sanctions, the Government enacted emergency retrospective legislation – the Jobseekers (Back to Work Schemes) Act 2013 (“the 2013 Act”).
Jobseekers (Back to Work Schemes) Act 2013 declared incompatible
The 2013 Act was intended to ensure that the ESE Regulations were effective in respect of all claimants who had been sanctioned.
The effect of the 2013 Act was that any decision to sanction a claimant could not be challenged on the grounds that the ESE Regulations were invalid or the notices given under them inadequate, notwithstanding the Court’s judgment.
However, the 2013 Act was challenged on the grounds that it breached the claimants’ rights to a fair trial. In 2016, the Court of Appeal held that the 2013 Act was incompatible with Article 6(1) rights of claimants who had a pending appeal against a sanction imposed under the ESE Regulations at the time the 2013 Act came into force.
On 28 June 2018, the Government laid its proposal for the Jobseekers (Back to Work Schemes) Act 2013 (Remedial Order) 2018 before both Houses of Parliament. The purpose of the Government’s proposal is to remedy the incompatibility of the 2013 Act with Article 6(1).
A Remedial Order is a form of subordinate legislation which amends or repeals primary legislation for purposes and in circumstances specified in the Human Rights Act 1998 (HRA).
The terms of the declaration of incompatibility are limited to Jobseeker’s Allowance claimants who had appealed against a sanction decision under the ESE Regulations when the 2013 Act came into force on 26 March 2013 (if that appeal had not already been finally determined, abandoned or withdrawn).
To restore the claimants’ right to a fair hearing, the proposed draft Remedial Order requires the Secretary of State for Work and Pensions, a Tribunal or a Court to:
- ignore the effect of the 2013 Act for claimants who had filed an appeal before the 2013 came into force;
- allow the appeal to be decided in the claimants’ favour; and
- it gives the Secretary of State the power to repay the sanctioned benefit, without the claimants having to progress their appeals through the tribunal system.
Reporting on the draft proposal
The Joint Committee on Human Rights is required to report to Parliament on any Remedial Order made under the Human Rights Act.
The Committee has 60 days to report to each House its recommendation as to whether a draft Order in the same terms as the proposal should be laid before the House.
The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals.
Please use the written submission form.
The deadline for submissions is 4 September 2018.
The proposed draft Remedial Order and required information can be found here.
The Minister’s written statement can be found here.
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