The Government is proposing changes to its ‘Back to Work Schemes’ legislation, after a Court found some job seekers has been denied their fair trial rights. But what’s it all about and do the changes go far enough? We explain.
This all dates back to 2011, when the Government introduced new Regulations which allowed Jobcentres to sanction job seekers who refused to participate in unpaid work experience programmes. This included stopping benefits for a certain period.
The scheme was criticised by some as an unprincipled use of free labour, and various legal challenges were brought.
These culminated in a 2016 Court of Appeal ruling that some job seekers who had sought to appeal the benefit sanctions under the 2011 Regulations had been denied the right to a fair trial under the Human Rights Convention. Let’s look in more detail at what actually happened.
So, What Happened?
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Unemployed geology graduate Caitlin Reilly claimed that the Government had acted unlawfully by forcing her to attend two weeks of training and work unpaid for a further two weeks at Poundland in order to receive Jobseeker’s Allowance. She received no written notification requiring her to join a scheme, but was simply told by a Jobcentre adviser that the training and Poundland work was mandatory.
Income may be stopped for up to 26 weeks if you do not take part.
In a joined case, unemployed driver Jamieson Wilson was given written notification requiring his participation in a scheme, and that his income ‘may be stopped for up to 26 weeks’ if he did not take part. The Jobcentre refused to give any more information. He refused to take part, and his income was stopped for 6 months.
In 2013, the Court of Appeal quashed the 2011 Regulations. It said that (1) the Regulations failed to describe the schemes in enough detail, and (2) the written notifications to the Claimants did not make them sufficiently aware of their obligations nor of the situations where sanctions would be applied. But this wasn’t the end of it.
The Government’s Response
Ian Duncan Smith was the Work and Pensions Secretary. Image Credit: Number 10 / Flickr
The Government replaced the quashed regulations with new ones. It also fast-tracked a new law through Parliament in 2013 which retrospectively made legal the benefit sanctions that were being complained about (ie. the sanctions against job seekers who opted out of a back-to-work scheme.)
Money that would be better spent on people who take their responsibilities seriously.
This allowed the Government to avoid repaying withheld benefits payments amounting to £130 million. The Government argued that this was “money that would be better spent on people who take their responsibilities seriously”.
The Act also made it impossible for someone to challenge a benefit sanction if the challenge rested solely on the basis that the 2011 Regulations were invalid, or that the written notices were inadequate.
Wait, No Right to Challenge a Decision?!
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You might think that doesn’t sound good, and you’d be right. The Court of Appeal found in 2016 that the retrospective nature of the legislation was a breach of the job seekers’ right to a fair trial under Article 6 of the Human Rights Convention.
The Court found the Act to be incompatible with the Human Rights Convention in the cases of claimants who had already appealed against their sanctions, and emphasised: “it is up to the Government [..] to decide what action to take in response”.
To its credit, the Government has said that it “takes a breach of the European Convention of Human Rights seriously and is of the view that such instances should be remedied as soon as possible”.
To that end, it has this week laid before Parliament a draft Remedial Order that restores the right to a fair hearing for a small number of claimants.
£1.7 million of benefit payments could be repaid.
It amends the 2013 Act, so that it does not apply to job seekers’ who had a sanction appeal under the 2011 Regulations outstanding when the 2013 Act came into force. It allows the appeal to be decided in their favour.
The Government estimates that around 4,000 benefit claimants will be affected by the Order, and £1.7 million of benefit payments withdrawn through the sanction decisions could be repaid.
It had previously been argued that 231,000 claimants were owed up to £130 million in withheld benefit payments, so some might say this new order doesn’t go far enough.
It’s not over yet though. The Order will now be scrutinised by the Joint Committee on Human Rights. The Minister for Employment Alok Sharma MP has agreed to consider all representations, and will then revert the Order back to Parliament for a further 60 days of consideration.