Reilly & Anor v Secretary of State for Work And Pensions [2016] EWCA Civ 413

“At your interview today, your adviser explained that you had to take part in the [CAP] from 16 November 2011. Ingeus [the provider] will be in touch with you shortly to arrange this. The [CAP] will involve doing up to six months of near fulltime work experience, with some additional weekly job search support. The [CAP] is an employment programme established in law under the [2011 Regulations].”

“(1) The Claimants’ appeal is allowed. (2) The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (“the 2011 Regulations”) are quashed. (3) It is declared that the Defendant acted unlawfully in requiring [Ms Reilly] to participate on the sector-based work academy scheme. (4) The Defendant’s cross-appeal is dismissed and the Judge’s order that there was a breach of regulation 4 in the case of [Mr Wilson] is upheld.”

“The Appellant’s appeal from paragraph 2 of the Order of the Court of Appeal made on 12 February 2013 … quashing [the 2011 Regulations] be allowed on the basis only that the [2013 Act] has come into force.” (2) The notice challenge. The Court upheld the finding that the Secretary of State had not complied with regulation 4 (2) in Mr Wilson’s case; but it did so only on the basis of a breach of the requirements of paragraph (2) (c) and not, as Foskett J had held, of paragraph (2) (e). As regards the former, Lord Neuberger and Lord Toulson, with whose judgment the other members of the Court agreed, observed that the letter “merely informed Mr Wilson that he had to perform ‘any activities’ requested of him by Ingeus, without giving him any idea of the likely nature of the tasks, the hours of work, or the place or places of work” (para. 55 (p. 471B)).Paragraph (2) of the Court’s formal order reads: “The Appellant’s appeal from paragraph 4 of the Court of Appeal Order be dismissed, there having been a breach of the regulation 4 (2) (c) in the case of [Mr Wilson].” (3) The prior information duty. The Court held (at para. 65 of the judgment of Lord Neuberger and Lord Toulson) that the Secretary of State was under a common law duty as a matter of fairness – distinct from the requirements of regulation 4 (2) (c) – to ensure that claimants had access to sufficient information about any scheme in which they might be required to participate before such a requirement was made, so that they were enabled to make representations about its suitability; and (at para. 75) that a failure so to ensure would, if it were material, vitiate the effect of notice under regulation 4. We refer to this as “the prior information duty”

“(1) The 2011 Regulations are to be treated for all purposes as regulations that were made under section 17A of the Jobseekers Act 1995 and other provisions specified in the preamble to the 2011 Regulations and that came into force on the day specified in the 2011 Regulations. (2) The Employment, Skills and Enterprise Scheme mentioned in the 2011 Regulations is to be treated as having been, until the coming into force of the 2013 Regulations, a scheme within section 17A(1) of the Jobseekers Act 1995. (3) The following are to be treated as having been, until the coming into force of the 2013 Regulations, programmes of activities that are part of the Employment, Skills and Enterprise Scheme— (a) the programmes described in regulation 3(2) to (8) of the 2013 Regulations, and (b) the programme known as the Community Action Programme, and references to the scheme are to be read accordingly.”

“(4) A notice given for the purposes of regulation 4(1) of the 2011 Regulations (requirement to participate and notification) is to be treated as a notice that complied with regulation 4(2)(c) (details of what a person is required to do by way of participation in scheme) if it referred to— (a) the Employment, Skills and Enterprise Scheme, or (b) a programme of activities treated under subsection (3) as part of the scheme. (5) A notice given for the purposes of regulation 4(1) of the 2011 Regulations is to be treated as a notice that complied with regulation 4(2)(e) (information about the consequences of failing to participate) if it described an effect on payments of jobseeker's allowance as a consequence or possible consequence of not participating in the scheme or a programme of activities.”

“(12) A penalty imposed on a person before or after the coming into force of this Act for— (a) failing to participate in a scheme within section 17A(1) of the Jobseekers Act 1995, or (b) … is to be treated as lawfully imposed if the only ground or grounds for treating it as unlawfully imposed is or are removed by subsections (1) to (10).”

“Subsection (12) does not affect a person’s ability to apply for a revision or supersession of, or to appeal against, a decision to impose a penalty by reference to other grounds.”

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

“The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute.”

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

“The principle of the rule of law and the notion of fair trialenshrined in Article 6 preclude any interference by thelegislature with the administration of justice designed to influencethe judicial determination of the dispute. … [T]he State infringed the applicants' rights under article 6 para. 1 by intervening in a manner which wasdecisive to ensure that the – imminent – outcome of proceedings inwhich it was a party was favourable to it. There has therefore beena violation of that Article.”

“At the moment when [the legislation in question] was passed the arbitration award of 27 February 1984 … conferred on the applicants a right in the sums awarded. Admittedly, that right was revocable, since the award could still be annulled, but the ordinary courts had by then already twice held - at first instance and on appeal - that there was no ground for such annulment. Accordingly, in the Court's view, that right constituted a ‘possession’ within the meaning of Article 1 of Protocol No. 1.”

“The financial considerations cited by the Government and their concern to bring Belgian law into line with the law of neighbouring countries could warrant prospective legislation in this area to derogate from the general law of tort. Such considerations could not justify legislating with retrospective effect with the aim and consequence of depriving the applicants of their claims for compensation.”

“… [T]he Court notes that in enacting section 53 of the 1991 Act with retroactive effect Parliament was concerned to restore and reassert its original intention which had been stymied by the finding of the House of Lords in the Woolwich 1 litigation that the 1986 Regulations were ultra vires on technical grounds. The decision to remedy the technical deficiencies of the Regulations with retroactive effect was taken before 7 March 1991, namely before the date when the Leeds and the National & Provincial issued their writs and without regard to the imminent launch of the first set of restitution proceedings. Although section 53 had the effect of extinguishing the restitution claims of those two applicant societies, it does not appear to the Court that the ultimate aim of the measure was without reasonable foundation having regard to the public-interest considerations which underpinned the proposal to legislate with retroactive effect and Parliament’s endorsement of that proposal. There is in fact an obvious and compelling public interest to ensure that private entities do not enjoy the benefit of a windfall in a changeover to a new tax-payment regime and do not deny the Exchequer revenue simply on account of inadvertent defects in the enabling tax legislation, the more so when such entities have followed the debates on the original proposal in Parliament and, while disagreeing with that proposal, have clearly understood that it was Parliament’s firm intention to incorporate it in legislation.”

“In the light of the foregoing it can be concluded that the Court's case-law does not contemplate the existence of a ‘genuine dispute’ or an ‘arguable claim’ as a criterion for determining whether there is a ‘legitimate expectation’ protected by art 1 of Protocol No 1. … [The] Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an ‘asset’ only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it.”

“65. The Court reiterates that, according to its case-law, an applicant can allege a violation of Article 1 of Protocol No. 1 to the Convention only in so far as the impugned decisions relate to his ‘possessions’ within the meaning of that provision. ‘Possessions’ can be ‘existing possessions’ or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an ‘asset’ falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it. Where that has been done, the concept of ‘legitimate expectation’ can come into play. 66. As regards the concept of ‘legitimate expectation’, one aspect of this was illustrated in the above-mentioned case of Pressos Companía Naviera S.A. and Others, which concerned claims for damages arising from accidents to shipping allegedly caused by the negligence of Belgian pilots. Under the Belgian law of tort, claims came into being as soon as damage had occurred. The Court classified these claims as ‘assets’ attracting the protection of Article 1 of Protocol No. 1. It went on to note that, on the basis of a series of judgments of the Court of Cassation, the applicants could argue that they had a ‘legitimate expectation’ that their claims deriving from the accidents in question would be determined in accordance with the general law of tort. 67. The Court did not expressly state in the Pressos Companía Naviera S.A. and Others case that the ‘legitimate expectation’ was a component of, or attached to, the property right claimed. However, it was implicit in the judgment that no such expectation could come into play in the absence of an ‘asset’ falling within the ambit of Article 1 of Protocol No. 1, which in that case was a compensation claim. The ‘legitimate expectation’ identified in the Pressos Companía Naviera S.A. and Others case did not in itself constitute a proprietary interest; it related to the way in which the claim qualifying as an ‘asset’ would be treated under domestic law, and in particular to the reliance on the fact that the established case-law of the national courts would continue to be applied in respect of damage which had already occurred. 68. In a line of cases the Court has found that the applicants did not have a ‘legitimate expectation’ where it could not be said that they had a currently enforceable claim that was reasonably established. ... The Court’s case-law does not contemplate the existence of a ‘genuine dispute’ or an ‘arguable claim’ as a criterion for determining whether there is a ‘legitimate expectation’ protected by Article 1 of Protocol No. 1. ... The Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an ‘asset’ only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký v. Slovakia … [(2005) 41 EHRR 43]).”

“… [T]he Law of 4 March 2002 abolished purely and simply, with retrospective effect, one of the essential heads of damage, relating to very large sums of money, in respect of which the parents of children whose disabilities had not been detected before birth, like the applicants, could have claimed compensation from the hospital held to be liable. The French legislature thereby deprived the applicants of an existing ‘asset’ which they previously possessed, namely an established claim to recovery of damages which they could legitimately expect to be determined in accordance with the decided case-law of the highest courts of the land.”

“Article 6 of the Convention and Article 1 of Protocol No. 1 reflect two separate and distinct Convention values, both of fundamental importance – the rule of law and the fair administration of justice on the one hand and the peaceful enjoyment of possessions, on the other. While the facts at the basis of the complaints under the two articles are the same, the issues raised and the relevant governing principles are not and, unlike the majority, we do not consider that the Court’s conclusion that Article 1 has been violated is such as to relieve the Court of the duty of examining the applicants’ complaint under Article 6.”

“The Government submitted that the Law of 4 March 2002 was not directed specifically at the dispute which gave rise to the present case, or any particular dispute. While it is true that, unlike the situation in the [Stran] case, the impugned legislation in the present case did not target particular litigation, this is not in our view decisive. Of greater significance is the fact that the contested provisions manifestly had the aim, and the effect, of radically altering the applicable compensation rules and were, by their express terms, designed to apply to all pending judicial proceedings, including those of the applicants, in which no irrevocable decision had been taken on the principle of compensation.”

“While, as in the case of the complaint under Article 1 of the Protocol, we do not seek to question the validity of the general-interest considerations which motivated the introduction of the Law of 4 March 2002, the question remains whether those reasons were, individually or collectively, sufficiently cogent to justify the legislature in extending the measures to legal proceedings which were already in progress.”

“129. As a result of the application of [the Law of 1992], owners of expropriated land were deprived of a substantial part of the compensation which they could previously have claimed under [the previous law]. 130. Accordingly, even though the proceedings were not annulled under [the Law of 1992], the provision in question, which was applicable to the judicial proceedings that the applicants had instituted and which were pending, had the effect of definitively modifying the outcome by defining retrospectively the terms of the debate to their detriment. Although the Government submitted that the legislative provision was not aimed specifically at the present dispute, or any other dispute in particular, the Court considers that, as it was immediately applicable, it had the effect of frustrating proceedings then in progress of the type brought by the applicants. The manifest object, and the effect, of the impugned provision was in any event to modify the applicable rules relating to compensation, including in the case of judicial proceedings then in progress to which the State was a party (see Anagnostopoulos and Others v. Greece, no. 39374/98, §§ 20-21, ECHR 2000-XI). 131. Admittedly, the applicability to current awards of compensation and to pending proceedings cannot in itself give rise to a problem under the Convention since the legislature is not, in theory, prevented from intervening in civil cases to amend the existing legal position by means of an immediately applicable law (see [OGIS] and [Zielinski]). However, in the present case [the Law of 1992] simply extinguished, with retrospective effect, an essential part of claims for compensation, in very high sums, that owners of expropriated land, such as the applicants, could have claimed from the expropriating authorities. In that connection the Court reiterates its finding [sc. in the context of the A1P1 challenge] that the compensation awarded to the applicants was inadequate, given the low amount in question and the lack of public-interest grounds justifying less than compensation in the market value of the property … . 132. In the Court’s view, the Government have not demonstrated that the considerations to which they referred, namely, budgetary considerations and the legislature’s intention to implement a political programme, amounted to an “obvious and compelling general interest” required to justify the retrospective effect that it has acknowledged in certain cases (see [National & Provincial];[OGIS]; Forrer-Niedenthal v. Germany, no. 47316/99, 20 February 2003; and Bäck v. Finland, no. 37598/97, ECHR 2004-VIII). 133. There has, therefore, been a violation of Article 6§1 of the Convention.”

“As I see it, the really important limitation arises from the use of the word ‘designed’ in the final sentence of para 57 of Zielinski. Taken together with the word ‘interference’, and with the court’s emphasis on ‘method and timing’ in para 58 of the same decision, that seems to me to import something of the nature of deliberate intent on the part of the legislature. The principle is not satisfied on a simple cause and effect basis. The court did not refer to ‘legislation affecting’, but to ‘interference designed to influence’, and in my view that is a distinction of great significance.”

“Against that background I am unable to regard the 2009 Act as a ‘designed’ interference falling within the proper scope of the Zielinski principle. During the legislative process, no doubt, the Minister and others made occasional reference to the sisted actions and other ‘backed-up’ claims, and obviously the Parliament did not leave them out of account when passing the Bill. However, the best indication of legislative intent is to be found in the terms of the 2009 Act itself (cf Wilson v First County Trust Ltd, per Lord Nicholls at para. 67), and everything about that Act suggests that it was designed for the universal benefit of all individuals currently or prospectively diagnosed with any of the specified conditions. It is essentially a forward-looking measure following the final resolution of the Rothwell test cases in the House of Lords. The great majority of beneficiaries will emerge over the next few decades and, by comparison, it is a relatively small number (perhaps measured in the low hundreds) whose claims actually reached court before 17 June 2009. There is nothing in the Act, or in the legislative papers, to show that the Parliament was interested in any particular action or actions. For legislative purposes the number and identity of existing claimants were not material considerations, nor the grounds of action, nor the defenders' response, nor even the stage which proceedings had reached before being sisted. There is nothing to indicate that the Parliament perceived the slightest difference between claims raised just before, or alternatively just after, 17 June 2009, nor indeed between sisted court actions and what seems to have been a larger number of claims merely "backed up" with solicitors. The legislation would, it seems, have been in the same terms if the sisted claims had been measured, not in hundreds, but in scores or dozens, or even if there had been no sisted claims at all. No doubt sections 3(2) and 4(2) were intended to have retrospective effect, but again their terms apply without restriction to all claimants, present and future, and I am unable to read them as directed towards claimants in any restricted category.”

“I had, indeed, at one time wondered whether this undoubted, and deliberate, impact of the legislation upon pending claims might not of itself have vitiated the legislation by virtue of article 6 of the Convention, if not by reference to A1P1 itself – see particularly the Zielinski v France (1999) 31 EHRR 532 line of Strasbourg authorities and Anna Jasiak's article, ‘Changing the rules mid-game. Legislative interference in specific pending cases: separation of powers and fair trial’, Vienna Journal on International Constitutional Law, vol 4, Issue 1/2010. The Lord Ordinary, however, rejected the appellants' complaint under article 6 (see paras 146-179 of his judgment) and the appellants have never thereafter sought to return to it - understandably, I think, because a challenge of this nature must in reality stand or fall upon the effect of the legislation generally. It would be absurd to strike down legislation like this (and, indeed, like section 3 of the Compensation Act 2006) merely because pending actions are included within its scope. Accordingly, instead of the respondents having to establish ‘compelling grounds of the general interest’ (Zielinski at para 57), as is ordinarily required to justify legislation designed to influence the judicial determination of pre-existing disputes (legislation which thus prima facie frustrates the administration of justice), they need demonstrate no more than that their claim to be acting in the public or general interest is not ‘manifestly without reasonable justification’ (James v UK (1986) 8 EHRR 123, para 46, cited by Lord Hope at para 31). This is, I need hardly add, a substantially easier test to satisfy.”

“38. The Court reiterates that in the context of civil disputes it has repeatedly held that although, in principle, the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude, except for compelling public-interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see, among many other authorities, [Stran]; [National & Provincial]; [Zielinski]; and [Scordino]). 39. The Court considers that these principles are essential elements of the concepts of legal certainty and protection of litigants’ legitimate trust (see Unédic v. France, no. 20153/04, § 74, 18 December 2008). 40. Therefore, in assessing whether the interference by the legislature with the administration of justice, which had been designed to influence the judicial determination of a dispute by the introduction of retrospective provisions, infringed the applicant’s right to a fair trial, the Court will primarily assess the existence of compelling public-interest reasons for such legislative changes (see Scordino §132). In addition, the Court must examine the effects of such legislative changes taken together with the method and timing of their enactment (see [Papageorgiou]and Smokovitis v. Greece, no. 46356/99, §24, 11 April 2002).”

“(i) whether there is a legitimate aim which could justify a restriction of the relevant protected right, (ii) whether the measure adopted is rationally connected to that aim, (iii) whether the aim could have been achieved by a less intrusive measure and (iv) whether, on a fair balance, the benefits of achieving the aim by the measure outweigh the disbenefits.”

“I conclude that there is Strasbourg authority testing the aim and the public interest by asking whether it was manifestly unreasonable, but the approach in Strasbourg to at least the fourth stage involves asking simply whether, weighing all relevant factors, the measure adopted achieves a fair or proportionate balance between the public interest being promoted and the other interests involved. The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislature's decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of "manifest unreasonableness". In this connection, it is important that, at the fourth stage of the Convention analysis, all relevant interests fall to be weighed and balanced. That means not merely public, but also all relevant private interests. The court may be especially well placed itself to evaluate the latter interests, which may not always have been fully or appropriately taken into account by the primary decision-maker.”

“The principles which I draw from the case law cited above are that, although Parliament is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of a fair trial and equality of arms contained in Article 6(1) ‘precludes any interference by the legislature … with the administration of justice designed to influence the judicial determination of a dispute’ (Zielinski at [57]) or ‘influencing the judicial determination of a dispute to which the State is a party’ (National & Provincial Building Society v. UK at [112]). This can only be justified in law ‘on compelling grounds of the general interest’ (Zielinski at [57]) and ‘any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection’ (National & Provincial Building Society v. UK at [112]). These principles have been cited with approval by the Supreme Court in AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868, per Lord Reed at [122].”

“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.”

“In circumstances in which retrospective legislation is not targeted at a particular person, but is a measure of general application with only incidental effect on pending claims, the appropriate and primary analysis is under A1P1”

“134. However, under UK domestic law, the Second Claimant's right to JSA depends upon whether he meets the conditions for receipt of the benefit. He must be (1) eligible and (2) not denied payment on conduct grounds under sections 17A or 19 JSA 1995. This applies continuously, not just at the date of initial application and approval. 135. The eligibility requirements are listed in section 1, JSA 1995. Some of the eligibility requirements are objectively verifiable (e.g. age, residence), others may depend upon an exercise of judgment by the DWP on behalf of the Secretary of State (e.g. available for work and actively seeking work). 136. Under the statutory scheme for the imposition of sanctions, pursuant to section 17A and the 2011 Regulations, a claimant is liable to a sanction if he has failed to participate in a scheme in accordance with the requirements notified to him. If the Secretary of State decides that (1) a claimant has failed to participate in a scheme, and (2) that he has not shown good cause for that failure, the consequence will be that the claimant is treated as subject to sanctions and JSA is 'not payable' for a future period which is specified by regulation (see section 17A(5) & (6) JSA 1995 and reg. 8, 2011 Regulations). More extensive provision for non-payment on conduct grounds is set out in section 19 JSA 1995 which was later used as the statutory basis for JSA sanctions. 137. By way of illustration, on 18th May 2012, the DWP sent to the Second Claimant a Decision notice stating: ‘My decision is that a sanction is imposed for the period 25/05/12 to 21/06/2012…This is because [the Second Claimant] failed, without good cause, to participate in the Work Programme and the Employment, Skills and Enterprise Scheme…’ 138. In my judgment, the legal effect of the decision was that the Second Claimant did not meet the conditions for payment of JSA for a specified period of time in the future. The Second Claimant was not deprived of an existing ‘possession’ because this was not a revocation of benefit previously received, nor a demand for repayment of the JSA. The mere fact that he had been paid JSA in respect of an earlier period did not entitle him to continuing payments in the future if he no longer met the necessary conditions.”

“In accordance with general principles of administrative law, the sanction decisions were effective and lawful unless or until overturned. This is confirmed by section 17, Social Security Act 1998 which provides that decisions made by the Secretary of State are final unless and until revised or superseded or finally overturned on appeal.”

“In my judgment, although the Second Claimant had a good arguable case, it did not qualify as an "asset" for the purposes of A1 P1. Unlike the authorities relied upon by Mr Hickman, the Second Claimant's claim to JSA was not founded upon a body of settled case law in force at the time. Reilly No. 1 raised novel points. The correct legal analysis was uncertain. Although the Claimants in Reilly No. 1 had been successful in both the Administrative Court and the Court of Appeal when the 2013 Act came into force, the basis upon which they were successful differed; the only point of agreement was that [there] was a breach of reg. 4(2)(e). The Supreme Court took a different view to both the Court of Appeal and the Administrative Court, finding that there was no breach of reg. 4(2)(e), though agreeing with the Court of Appeal that the 2011 Regulations were ultra vires and that there had been a breach of reg. 4(2)(c). Although the Second Claimant's appeal had succeeded in the FTT on the basis of the Administrative Court's decision that there was a breach of reg. 4(2)(e), it was this analysis that was found to be erroneous by the Supreme Court.”

“In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.”

“44. A claimant might also argue that legislation which removes their right to a refund of sanctioned benefits, or allows the Secretary of State to impose a sanction, notwithstanding the Court of Appeal’s decision, is a breach of their right of access to court under ECHR Article 6. 45. If no legal claim has been brought on the grounds that the Regulations are ultra vires and/or that the notice issued under them is non-compliant prior to the enactment of the proposed legislation, the Government considers that Article 6 is not engaged at all since the claim to entitlement to benefit, and any dispute regarding a benefit decision thereon which would require access to the courts, remains hypothetical. 46. Similarly, for cases where the Secretary of State has not yet made a sanction decision, the Government considers that Article 6 will not be engaged as there will be no potential dispute about the right - the effect of the legislation will be that there can be no right to object to the sanction on the notice or vires grounds. 47. Even if the proposed legislation would interfere with a right of access to court, the Government considers that the interference is justified for similar reasons as for Article 1 of Protocol 1. 48. These issues were considered in Stran Greek Refineries and Stratis Andreadis v Greece (09.12.1994) and National & Provincial Building Societies v UK (23.10.1997). As with that latter case, the legislation would have the effect of closing a loophole in order to give effect to the original intention of Parliament, which is not disputed.”

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

“In deciding an appeal under this section, the First-tier Tribunal – (a) … (b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”

“(a) may (but need not) set aside the decision of the First-tier Tribunal, and (b) if it does, must either— (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision.”

“This argument is without merit. It has to fail on the very premise on which it arises. That premise is that the 2013 Act is to the binding effect on us that it does retrospectively overset the First-tier Tribunals’ decisions and that the Act’s breach of Article 6 of the Convention cannot be removed. A declaration of incompatibility “does not affect the validity, continuing operation or enforcement of” the 2013 Act (section 4(6)(a) of the HRA). Consistent with this, section 6(2) of the HRA is to the effect that a court or tribunal will not act unlawfully by acting in a way which is incompatible with a Convention right but where it is bound to do so by virtue of primary legislation that cannot be read differently. The sum of all of this, in our judgment, is that for us to use the discretion in section 12(2)(a) of the 2007 Act to circumvent this would be to ignore the binding effect of both the 2013 Act and section 4(6)(a) of the HRA 1998. If we did that then we would be using a judicial discretion to act unlawfully, which cannot be a proper exercise of that discretion.”

“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.”

“What must … be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”

“Fairness therefore requires that a claimant should have access to such information about the scheme as he or she may need in order to make informed and meaningful representations to the decision-maker before a decision is made. Such claimants are likely to vary considerably in their levels of education and ability to express themselves in an interview at a Jobcentre at a time when they may be under considerable stress. The principle does not depend on the categorisation of the Secretary of State's decision to introduce a particular scheme under statutory powers as a policy: it arises as a matter of fairness from the Secretary of State's proposal to invoke a statutory power in a way which will or may involve a requirement to perform work and which may have serious consequences on a claimant's ability to meet his or her living needs.”

“74. However, it would be wrong to be prescriptive as to how that information should be given. It is a proper matter for a court to determine whether, and if so what, information is required to be communicated by the government, and whether a particular means of communication satisfied that requirement. However, it should not, absent unusual circumstances, be for the court to prescribe a specific means of communication. In this case, it would involve the court going too far if it was to rule that descriptions of the schemes must, as a matter of law, be published to the world at large. The desirability of publication in the manner described in para 65 above is obvious, but practical desirability does not equate to legal requirement. Further, as this case illustrates, Mr Wilson was none the wiser for the fact that the CAP Provider Guidance was published on the department's website. 75. A failure to see that a claimant was adequately informed before service of a notice under regulation 4 would be likely to, but would not necessarily, vitiate the service of the notice. That would depend on whether the failure was material. Public law is flexible in dealing with the effects of procedural failures. Ultimately the issue must be determined by reference to the justice of the particular case. If the effect of the lack of information given to a claimant materially affected him or her by removing the opportunity of making representations which could have led to a different outcome, it would normally be unjust to allow the notice to stand. If it was immaterial on the facts, justice would not require the notice to be set aside. 76. The respondents seek a declaration that the Secretary of State was lawfully required to publish and make available to jobseekers the terms of schemes established under section 17A. For the reasons given, that is to state the Secretary of State's duty too broadly and prescriptively. We have stated the nature of the Secretary of State's duty in para 73 above and do not consider it necessary to grant relief by way of a formal declaration to that effect. On the facts of the present case, there was a failure to provide either Ms Reilly or Mr Wilson with adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required. This would have been a ground for treating the notice served on Mr Wilson as ineffective if it had otherwise complied with the requirements of the statute, but we have already held that it was ineffective and do not consider that any further relief is required.”

“When deciding whether activity is reasonable in a participant’s circumstances you need to consider:  The claimant’s personal circumstances such as any health condition they may have, their ability to use transportation, their skills/education, any childcare responsibilities the claimant may have etc. These examples are not exhaustive [emphasis supplied].”

“253. As we have said, we have considerable doubts about whether the ‘prior information requirement’ extends to this stage. Moreover, we doubt whether the phrase ‘ability to use transportation’ in this context was aimed at the finances to do so. It seems much more likely to be concerned with whether a health condition may limit the claimant’s ability to use transport. 254. Be that as it may, even if we assume all of these points in [Mr Bevan’s] favour, his fundamental problem is that Triage’s appointment letter of 8 May 2012 set out that if [Mr Bevan] could not attend on 17 May 2012 he should contact them as soon as possible and that they would refund his travel costs if he retained proof of purchase. Critically, on his own case on receipt of this letter and before the appointment [Mr Bevan] contacted Triage and told them he couldn’t attend unless his fares were paid in advance. [Mr Bevan] therefore, as far as we can see, made representations as to his ‘ability to use transport’ in advance to Triage, and they were taken into account and rejected (in that the appointment was not changed and fares were not provided). We simply cannot see on what basis knowing about the Work Programme Provider Guidance would have made any difference to the representations [Mr Bevan] in fact made or their impact. The fairness considerations underpinning the ‘prior information requirement’ in [Reilly 1] dictate that the representations at least have the prospect of leading to a different decision, which is not the case here.”

“221. Before turning to the different arguments which arise in respect of [Mr Green’s and Mr Bevan’s] cases, we need to address referral onto the ‘Work Programme’ and the application, if any, of what the Supreme Court said about prior information to that issue. 222. The need for ‘prior information’ in [Reilly 1]arose as an aspect of fairness but only because, it seems to us, such information might have enabled meaningful representations to be made: that is, representations that might have made a difference to the decision (to refer onto the scheme). However, given the mandatory nature of selection for the Work Programme, we cannot see the scope for any such meaningful representations being made, however much (or little) information is provided to the JSA claimant. We have set out above the evidence as to the Work Programme. It was a scheme which was not before the Supreme Court in [Reilly 1]. On the basis of the evidence put before us, and despite the lack of any contested argument on this issue, we find it very difficult to identify where the need for prior information can have any purchase on the Work Programme for JSA recipients, save perhaps for those with ‘early entry characteristics’. 223. We note, first, that in neither of the appeals before us where the Work Programme applied did either of the very ably represented claimants seek to argue that their referral and participation once referred was other than mandatory. Moreover, no argument was made on behalf of [Ms Jeffrey] as to any ‘meaningful representations’ she could have made either prior to referral or once she had been referred and was on the Work Programme. Given, as we see it, the compulsory nature of selection for (and then participation on) the Work Programme for all JSA claimants save for those with ‘early entry characteristics’, we can see why no such argument was made. 224. Therefore, we consider we can say by way of general guidance that given the mandatory nature of the Work Programme the starting point in any appeal in which the ‘prior information point’ arises or is taken is that it should be for the claimant to show the basis on which he or she could have made ‘meaningful representations’: that is representations which could materially have affected the decision to refer them onto the Work Programme. The onus would also be on the claimant to establish that such representations could also apply to steps they were required to take once referred. In other words, we are satisfied from the evidence put before us that ordinarily … the decision to refer will not be capable of being changed by representations made by the claimant regardless of how much (or little) information they have been provided with in advance.”