Supreme Court rules on government's work experience schemes: why have both sides claimed victory?

31 October 2013

In 2011 unemployed graduate Cait Reilly made headlines after being forced to work for three weeks at Poundland in order to keep her Jobseeker's Allowance (JSA). She was part of the government's Employment, Skills and Enterprise Scheme, which is aimed at helping JSA claimants find work through work experience.

She brought a legal challenge along with another claimant, Jamieson Wilson, who was part of a different scheme called the Community Action Programme aimed at the long-term unemployed.

This week the UK Supreme Court drew a line under the long-running legal battle between the two claimants and the Secretary of State for Work and Pensions, Iain Duncan Smith, over the schemes' legality.

The outcome of the Supreme Court's decision won't have been at all obvious to anyone comparing some of the media coverage with the government's reaction:

The Guardian: "Poundland case: government defeated again over back-to-work schemes"

BBC News: "Government fail to overturn Poundland work scheme ruling"

Iain Duncan Smith: "We are very pleased that the Supreme Court today unanimously upheld our right to require those claiming Jobseeker's Allowance to take part in programmes which will help get them into work."

What the case was all about

The claimants challenged the government on four grounds:

1) That the 2011 regulations (which legally underpinned the schemes) were unlawful because they didn't properly set out the details of those schemes

2) That they weren't adequately notified by the government about their placement on the scheme and the details of it

3) That the government hadn't published any policy setting out the details of the schemes

4) That they had been forced to work, contrary to Article 4 of the European Convention on Human Rights, which as well as providing that "no one shall be held in slavery or servitude", states that "no one shall be required to perform forced or compulsory labour".

The case was first heard at the High Court in 2012, which only found against the government on point (2) - a breach in the claimants' individual cases, rather than a decision that the schemes as a whole were unlawful. The claimants took the case to the Court of Appeal. It caused a stir by finding against the government on point (1) as well, meaning the 2011 regulations were unlawful.

This finding of unlawfulness by the Court left the government facing the prospect of having to pay back people who'd been sanctioned under the schemes, at a cost of up to £130 million.

This wasn't palatable to the government. Repayments would have been due once the case ended. The government fast-tracked new legislation through parliament so that the faulty 2011 regulations could be replaced, and appealed the decision to the Supreme Court (continuing the case). Since the legislation was retrospective, it meant they wouldn't be required to pay back people who had been subject to the old regulations.

The claimants "cross-appealed" to the Supreme Court (meaning, in essence, that they too asked the Supreme Court to further consider issues in the case.) Their appeal was against the Court of Appeal's conclusions on grounds (3) and (4): the Court of Appeal had decided that there was no requirement on the government to publish its policy more extensively than it had done (ground 3) and that Cait Reilly's Article 4 rights had not been infringed (ground 4).

What the Supreme Court said

The Supreme Court agreed with the Court of Appeal on point (1) that the 2011 regulations were unlawful due to lack of detail and on point (2) that the government's notification to the claimants was inadequate.

They also found against the government on point 3), stating that a person needed to have proper information about the scheme in order to make informed and meaningful representations at a Jobcentre before a decision was taken about what work he/she would be required to do, or before a notice was given requiring participation in the scheme.

So the Supreme Court found against the government on grounds (1), (2) and (3).

However, the Supreme Court maintained that the government had not breached point (4), saying that while Article 4 requires that "no one shall be required to perform forced or compulsory labour", this did not apply to "any work or service which forms part of normal civic obligations".

They further observed that "forced labour", while possibly taking many forms, had exploitation at its heart. Being made to work for JSA came "nowhere close to the type of exploitative conduct at which Article 4 is aimed". They referenced several decisions made at the European Court of Human Rights in support of their decision.

So, in short, the government lost on three out of four grounds: its initial policy was unlawful, it had breached its own regulations in the two individual claimants' cases before it, and it hadn't published adequate information about the policy. But it won on what was arguably the most prominent issue: forcing people to work for JSA entitlement is not "forced labour" amounting to a breach of the European Convention on Human Rights.

We are not aware of any indication from the claimant's legal team that they intend to appeal the decision to the European Court of Human Rights.


Thanks to Susanna Rickard, a barrister from Serjeants' Inn Chambers, for assistance in writing this article.

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