I will, later today, lay a draft remedial order to amend the Jobseekers (Back to Work Schemes) Act 2013, along with the Government statement, setting out our response to the report from the Joint Committee on Human Rights and other representations my Department received on the proposal for the draft order when this was laid in Parliament between 28 June and 31 October 2018.
The draft remedial order ensures the right to a fair hearing for a small group of claimants who had lodged an appeal against a sanction decision that was retrospectively validated by the 2013 Act, if that appeal case had not been finally determined, abandoned or withdrawn before 26 March 2013. For these appeal cases, the draft order gives the courts the ability to find in the individual’s favour and enables the Secretary of State for Work and Pensions to change the sanction decision and refund the amount withheld, without those affected individuals having to continue with their appeal, wherever possible.
In 2013, the courts ruled that the Jobseeker’s Allowance (Employment, Skills and Enterprise Schemes) Regulations 2011 (ESE regulations) that underpinned a range of programmes of support to help people into work did not describe the individual schemes in enough detail, and that our referral letters did not say enough about the activities required. The Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 (MWA regulations) contained identical requirements about the content of referral letters. The 2013 Act reinstated the original policy intent of these regulations. This ensured that job seekers who had failed to take all reasonable steps to increase their chances of finding work between 2011 and 2013 did not unfairly obtain advantage over claimants who complied with the benefit conditionality requirements.
The Court of Appeal has ruled that the 2013 Act is effective in retrospectively validating sanction decisions and notifications. The Court of Appeal also ruled that the 2013 Act was incompatible with article 6(1) (the right to a fair hearing) of the European convention on human rights. It did not prevent people from appealing if they felt they had a good reason for not participating in one of the employment schemes, but it meant that their appeal would be unsuccessful if it related to their compliance with the ESE regulations or the referral notification they received under the ESE regulations or the MWA regulations. The Court of Appeal found that the 2013 Act was effective and that there was no breach of the European convention on human rights for the vast majority of claimants affected by the 2013 Act. The incompatibility with article 6 (1) arises only where a claimant had an undetermined appeal still in the tribunal system on the 26 March 2013, the date the Act came into force. The court’s decision does not affect the continuing validity of the 2013 Act.
I used the non-urgent remedial order process to allow time for parliamentary scrutiny. This requires that an initial proposed draft remedial order is laid in both Houses for a period of 60 days for consultation. The Joint Committee on Human Rights also consulted on the proposal and published its report on 31 October 2019. The initial proposed draft remedial order restored the right to a fair hearing for ESE regulation appeal cases because the appellants in the Court of Appeal case were appealing sanctions decisions made under these regulations. An upper tribunal judge has since questioned whether a limited group of mandatory work activity (MWA) appeal cases might also be included, as their rights under article 6(1) of the European convention on human rights arguably may also have been affected by the 2013 Act.
I have thoroughly considered his question and I believe that certain MWA regulation appeal cases are in a similar position to the ESE appeal cases that were specifically examined by the Court of Appeal. I have, therefore, revised the proposed draft remedial order to ensure that all claimants who had a pending appeal in the tribunal system on 26 March 2013 that may have been affected when the retrospective provisions of the 2013 Act came into effect are included in the draft remedial order.
There are no other groups similarly affected by the 2013 Act. The revised draft remedial order remains limited to circumstances that were incompatible with article 6(1) of the European convention on human rights. I will lay the draft order later today for consideration by Parliament for a period of 60 days, it is then subject to affirmative resolution.