Explanatory note

This Order amends the Jobseekers (Back to Work Schemes) Act 2013 (“the 2013 Act”) to remedy the incompatibility of the 2013 Act with a Convention right. The 2013 Act removed what would otherwise have been a conclusive ground of appeal from Jobseeker’s Allowance claimants (“JSA claimants”) who had pending appeals against a penalty imposed for failing to comply with the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (“the 2011 Regulations”) at the time that the 2013 Act came into force. This Order extends to England and Wales and Scotland.

In the case of R (on the application of Reilly and another) v Secretary of State for Work & Pensions; Jeffrey and another v Secretary of State for Work Pensions [2016] EWCA Civ 413, the Court of Appeal on 29th April 2016 made a declaration under section 4 of the Human Rights Act 1998 that the 2013 Act is incompatible with article 6(1) of the European Convention on Human Rights, as given effect by section 1 of the Human Rights Act 1998, in the case of a claimant in the proceedings and “in the cases of all other JSA claimants who had filed appeals against sanctions imposed under the 2011 Regulations prior to its [the 2013 Act’s] coming into force”.

In order to remove the incompatibility, article 2 of this Order inserts section 1A into the 2013 Act.

In the case of appeals against a penalty imposed on a JSA claimant for a failure to comply with the 2011 Regulations (a “penalty decision”) which were pending appeals as at 26th March 2013 the Secretary of State may revise the penalty decision and, if the Secretary of State does so, this must be done on the basis that the 2011 Regulations were invalid or the notices sent to JSA claimants advising them that they were required to take part in a programme within the Employment, Skills and Enterprise Scheme were inadequate. This is the effect of providing that the Secretary of State must disregard subsections (1) to (6) of section 1 and subsection (12), because these are the provisions of the 2013 Act that validate the 2011 Regulations and provide for the adequacy of the notices.

Where a tribunal has already heard an appeal against a penalty decision and upheld the sanction (in whole or part) by the time that this Order comes into force, the Secretary of State must supersede the tribunal’s decision, on the same basis. This power of supersession is similar to an existing power in section 10 of the Social Security Act 1998, and a decision made under this power is treated for all purposes as if it had been made under section 10 of the Social Security Act 1998. Where the Secretary of State does not revise the penalty decision or supersede the tribunal’s decision, or where a claimant appeals that revision or supersession, a court or tribunal is able to overturn the penalty decision on the same basis.

The 2013 Act also affects appeal decisions made under the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 (“the MWA Regulations”), by correcting any inadequacies in the notices given to claimants requiring their participation in the Mandatory Work Activity Scheme. This Order therefore also inserts section 1B into the 2013 Act, to remove the effects of the 2013 Act from appeals against a penalty imposed on a JSA claimant for a failure to comply with the MWA Regulations which were pending appeals as at 26^th March 2013.

As with pending appeals for failures to comply with the 2011 Regulations, the Secretary of State may revise the decision. If the Secretary of State does so, this must be done without taking account of subsections (7) to (9) of section 1 and subsection (12). These are the provisions which provide for the adequacy of notices given under the MWA Regulations.

Where a tribunal has already heard an appeal against a penalty decision made in relation to the MWA Regulations and upheld the sanction, the Secretary of State must decide whether or not the 2013 Act was relevant to that appeal decision. If the Secretary of State decides that it was relevant, then the Secretary of State must supersede the tribunal’s decision.

A revised penalty decision or superseded tribunal decision relating to either the 2011 Regulations or the MWA Regulations will enable the entire penalty imposed to be repaid. An appeal against a penalty decision which is revised will lapse as a result of section 9(6) of the Social Security Act 1998.