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Neutral Citation Number:	2015 UKUT 56 AAC
Reported Number:
File Number:	CJSA 1266 2013
Appellant:	Secretary of State for Work and Pensions
Respondent:	TJ (JSA)
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	28/04/2016
Date Added:	03/03/2015
Main Category:	Jobseekers allowance
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Court of Appeal decision reported as [2017] AACR 14 Jobseeker’s allowance – whether Jobseekers (Back to Work Schemes) Act 2013 breached Article 6 rights Human rights – whether application of sanctions for failure to sign unjustifiable interference with right to the protection of property under Article 1 In the first case the two claimants had both been required to participate in employment schemes, introduced by the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011. The first of the claimants took judicial review proceedings against the Secretary of State in which the Court of Appeal held that the 2011 Regulations were ultra vires and the notification requirements had not been complied with: R (on the application of Reilly) v Secretary of State for Work and Pensions [2013] EWCA Civ 66 (Reilly 1). Following that decision the second claimant successfully appealed to the First-tier Tribunal in respect of sanctions withdrawing his jobseeker’s allowance (JSA). Parliament then enacted the Jobseekers (Back to Work Schemes) Act 2013 to validate retrospectively the imposition of sanctions on JSA claimants. Both claimants brought judicial review proceedings in the High Court seeking a declaration under the Human Rights Act 1998 that the 2013 Act was incompatible with their rights under Article 6 and Article 1 of the First Protocol of the European Convention on Human Rights. The court upheld the claim under Article 6 but not Article 1: R (on the application of Reilly) v Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin) (Reilly 2). The Secretary of State appealed to the Court of Appeal against the Article 6 decision and the second claimant cross-appealed against the Article 1 decision. In the second case the Secretary of State had appealed against the Upper Tribunal’s decision that, following the decision in Reilly 2, the 2013 Act could be read down so as to have no effect for those who had made appeals before that Act came into effect and accordingly the sanctions applied against the claimants for non-participation in employment schemes were unlawful. Held, dismissing the Secretary of State’s appeal against the Article 6 decision and the claimant’s cross-appeal against the Article 1 decision and allowing the Secretary of State’s appeal against the Upper Tribunal’s decision, that: 1. it was well-established in the case law of the European Court of Human Rights that rights recognised by Article 6 may be infringed by the enactment of retrospective legislation affecting the result of pending proceedings: Zielinski v France (2001) 31 EHRR 19. The enactment of the 2013 Act gave rise to a breach of Article 6 in the form embodied in the Zielinski principle in the cases of all JSA claimants who had filed appeals against sanctions imposed under the 2011 Regulations prior to the Act coming into force. The intervention of the Government to remove from such appellants a conclusive ground of appeal was unquestionably an interference which engaged the Zielinski principle and which was not justified (paragraphs 33, 76 and 83); 2. Article 1 was not engaged as the relevant claimant had not been deprived of any “possession” within the meaning of Article 1: he had no accrued rights to JSA nor any legal claim on the basis of Reilly 1 as it did not have a sufficient basis in law (paragraphs 115, 117, 121 to 123 and 126); 3. the effect of the phrase “for all purposes” in section 1(1) of the 2013 Act as a matter of ordinary domestic construction was clear and incapable of being read down so as to have anything less than its plain literal meaning, and an exclusion for those who had already brought proceedings would have been included if that had been intended. Section 12(8)(b) of the Social Security Act 1998 did not nullify subsequent, explicitly retrospective legislation which would otherwise govern the decision of the tribunal (paragraphs 131, 134, 137, 140, 179, and 180); 4. the Court of Appeal's decision in Reilly 1 meant that the non-payment of JSA, described as sanctions, to claimants who had not participated in certain employment schemes was not legally valid. The 2013 Act successfully validated those sanctions retrospectively but it was incompatible with the Article 6 rights of those claimants who had already appealed against their sanctions. Under the Human Rights Act, that declaration of incompatibility did not, however, mean that the 2013 Act ceased to be effective in such cases. It was for the Government to decide on what action to take in response to the declaration of incompatibility (paragraph 180).
Decision(s) to Download:	CJSA 1266 2013-00.doc [2017] AACR 14ws.rtf