Skip to main content

JCHR calls for evidence on the Draft Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019

18 October 2019

DWP sets out draft jobseekers remedial order

On 5 September 2019, the Department for Work and Pensions (DWP) laid a draft Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019, for affirmative resolution, that is, for the approval of both Houses of Parliament. This draft follows the DWP's proposed draft Remedial Order, laid on 28 June 2018.

The Joint Committee on Human Rights (JCHR) reported on the proposals on 31 October 2018. In its report, the JCHR concluded that the proposed Remedial Order remedied the incompatibility between the Jobseekers (Back to Work Schemes) Act 2018 and Article 6 of the European Convention on Human Rights.

A Remedial Order is a form of subordinate legislation which amends or repeals primary legislation for purposes and in circumstances specified in the Human Rights Act 1998 (HRA).

Background

Before February 2013, several Jobseekers Allowance claimants were referred to certain ‘back to work' employment schemes. Sanctions were imposed on some claimants for non-compliance under the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (“the ESE Regulations”).

The Government's ‘back to work' schemes were challenged by a graduate who had to undertake an unpaid work placement at Poundland and a HGV driver who had to undertake unpaid work collecting and renovating furniture (Reilly (No. 1)). Both had been forced to participate in the scheme in order to continue receiving benefits.

The claimants won their case. The Court of Appeal held that the ESE Regulations were unlawful as the description of the schemes and the notices given to the claimants were both insufficiently clear. This ruling meant that anyone sanctioned and stripped of benefits under these Regulations could potentially claim these back from the Government.

To avoid having to repay the sanctions, the Government enacted emergency retrospective legislation – the Jobseekers (Back to Work Schemes) Act 2013 (“the 2013 Act”).

Jobseekers (Back to Work Schemes) Act 2013 declared incompatible

The 2013 Act was intended to ensure that the ESE Regulations were effective in respect of all claimants who had been sanctioned. The effect of the 2013 Act was that any decision to sanction a claimant could not be challenged on the grounds that the ESE Regulations were invalid or the notices given under them inadequate, notwithstanding the Court's judgment.

However, the 2013 Act was challenged on the grounds that it breached the rights to a fair trial for JSA claimants. In 2016, the Court of Appeal held that the 2013 Act was incompatible with Article 6(1) rights of claimants who had a pending appeal against a sanction imposed under the ESE Regulations at the time the 2013 Act came into force.

Government proposals

On 28 June 2018, the Government laid its proposal for the Jobseekers (Back to Work Schemes) Act 2013 (Remedial Order) 2018 before both Houses of Parliament. The purpose of the Government's proposal was to remedy the incompatibility of the 2013 Act with Article 6(1).

In the proposal, the scope of the Remedial Order was limited to Jobseeker's Allowance claimants who had appealed against a sanction decision under the ESE Regulations when the 2013 Act came into force on 26 March 2013 (if that appeal had not already been finally determined, abandoned or withdrawn).

However, following the publication of the DWP's proposals in June 2018, the DWP received representations from an Upper Tribunal Judge who questioned whether a group of Mandatory Work Activity (MWA) appeal cases should also be included (“the MWA cases”) in the scope of the Remedial Order. The MWA Regulations are a separate regime to the ESE Regulations, but they are both affected by the 2013 Act in the same way, i.e. by virtue of the 2013 Act, JSA claimants were retrospectively sanctioned under both the ESE and MWA Regulations.

The draft Remedial Order now extends the scope to cover JSA claimants who had appealed against a sanction decision under the Mandatory Work Activity Regulations.

To restore the claimants' right to a fair hearing, the draft Remedial Order requires the Secretary of State for Work and Pensions, a Tribunal or a Court to:

  • ignore the effect of the 2013 Act for claimants who had filed an appeal before the 2013 came into force;
  • allow the appeal to be decided in the claimants' favour; and 
  • it gives the Secretary of State the power to repay the sanctioned benefit, without the claimants having to progress their appeals through the tribunal system.

Reporting on the proposal

The Joint Committee on Human Rights is required to report to Parliament on any Remedial Order made under the Human Rights Act. The Committee has 60 sitting days to report to each House its recommendation as to whether a draft Order should be approved by both Houses.

Get involved

The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals.

The deadline for submissions is 1 November 2019.

Relevant Links

The draft Remedial Order and required information can be found here.

The Minister's written statement can be found here

Note

The personal information you supply will be processed in accordance with the provisions of the Data Protection Act 1998 for the purposes of attributing the evidence you submit and contacting you as necessary in connection with its processing. The Clerk of the House of Commons is the data controller for the purposes of the Act. We may also ask you to comment on the process of submitting evidence via the web portal so that we can look to make improvements.

More information on submitting evidence to Select Committees may be found on the parliamentary website at: http://www.parliament.uk/get-involved/have-your-say/take-part-in-committee-inquiries/witness/

Please bear in mind that the Committee is not able to investigate individual cases. You should be careful not to comment on matters currently before a court of law, or matters in respect of which court proceedings are imminent. If you anticipate such issues arising, you should discuss with the clerk of the committee how this might affect your submission.

Evidence becomes the property of the Committee, and may be printed, published on the Internet or circulated by the Committee at any stage.  You may publicise or publish your evidence yourself, but in doing so you must indicate that it was prepared for the Committee. Evidence published other than under the authority of the Committee does not attract parliamentary privilege.