Government loses workfare case

Thousands of jobless claimants denied benefits under flagship back-to-work schemes could be in line to share £130m in compensation, after the High Court ruled that the emergency legislation behind the Government’s back to work scheme was “incompatible” with the European Convention on Human Rights.

The Department for Work and Pensions introduced emergency retrospective legislation in 2013 to stop payouts after regulations governing the schemes were found to be legally flawed in an earlier decision by top judges. However, Mrs Justice Lang ruled the retrospective legislation interfered with the “right to a fair trial” under Article 6 (1) of the convention.

A “damning assessment”

The case stems from a challenge brought by Cait Reilly in 2012, who maintained that her human rights were breached by her having to participate in an unpaid work placement in a Poundland store, or risk losing her Jobseeker’s Allowance. The 24-year-old graduate said she had not been told that she would consequently have to give up her voluntary work in a museum, where her career ambitions lay. The Court of Appeal agreed with Ms Reilly that she had not been properly informed about the scheme.

The emergency legislation – the Jobseekers (Back to Work Schemes) Act – put in place in March 2013 clarified the rules to make it clear that for claimants, searching for a job is a full-time position in itself, while also ensuring that any individuals who had been sanctioned in the past for not adhering to the conditions of their jobseeker’s agreement could not apply to have the lost money reinstated.

Ms Reilly, together with fellow claimants Daniel Hewson and Jamieson Wilson, claimed the regulations were a “cynical” ploy to retrospectively legalise what had been declared by senior judges as unlawful, and that they were entitled to compensation. Mrs Justice Lang agreed, and said the claimants could apply for a judicial review of the relevant legislation. The decision was described as a “damning assessment” and, if upheld on appeal, could lead to £130m being paid out.

Legislation remains in force pending appeal

Ms Reilly and Mr Wilson’s representative commented afterwards that the ruling was a “massive blow” to attempts to force people to work for free, adding: "Last year the supreme court told Iain Duncan Smith and the coalition government that the scheme was unlawful. In this case the high court has now told the government that the attempt to introduce retrospective legislation, after the DWP had lost in the court of appeal, is unlawful and a breach of the Human Rights Act”.

A spokeswoman for the Department of Work and Pensions said: "We disagree with the judgement on the legislation and are disappointed.” She added: “It was discussed, voted on and passed by Parliament. While this applies to only a minority of past cases and does not affect the day-to-day business of our Jobcentres, we think this is an important point and will appeal”.

She also said that the legislation remains “in force” – and that the government would not as yet be compensating anyone, pending the outcome of its appeal. Up to 228,000 individuals were affected by the emergency Jobseekers (Back to Work Schemes) Act.

Ourexpertise and experience has made us one of the most trusted and highly regarded employment law teams in the region. Find out how we can help you and your organisation stay on the right side of the UK’s ever-changing employment law by calling us on 01895 207892, or email your details to employment@ibblaw.co.uk.

IBB's Employment Team provides advice on the employment aspects of all major business decisions.