Does Back to Work work?

The Court of Appeal delivers a technical but not a moral victory on back-to-work schemes, says Kate Balmer

On 12 February the Court of Appeal gave judgment in the highly publicised case of Reilly and Wilson v The Secretary of State. Caitlin Reilly and Jamieson Wilson challenged the legality of back-to-work schemes which required them to carry out unpaid work, most famously at Poundland, in order to continue receiving Jobseeker’s Allowance. The Court of Appeal gave a unanimous judgment in their favour, quashing the 2011 regulations which introduced the schemes.

The tabloids would have you believe that this case marks an end to the ‘slavery’ of unpaid work schemes and is another kick in the teeth for the coalition’s ill-thought-out policies. However, the reality is a far cry from the headlines. The Court of Appeal’s judgment does not signal the nail in the coffin for unpaid work schemes. Indeed it is, in many respects, an endorsement of the social value and utility of such schemes. The victory was a technical, rather than a moral or political, one.

The Court of Appeal rejected any contention that unpaid work schemes are tantamount to slavery or incompatible with human rights legislation. It also expressed a surprising degree of support for the Government’s aims in introducing such schemes. Lord Justice Pill stated that imposing requirements on people receiving Jobseeker’s Allowance was “readily understandable” and he was “impressed” with the care and resources put into developing such schemes. Sir Stanley Burnton echoed this, stating that the case was not about the “social, economic, political or other merits” of the schemes.

The key issue before the court was one of statutory construction. Namely, whether the wording of the 2011 Regulations complied with s17A of the Jobseeker’s Act 1995. Overturning the Administrative Court’s finding that the regulations were “adequate, albeit only just”, the Court of Appeal accepted that they were too-widely drafted and did not particularise the details of each separate scheme, as envisaged by the 1995 Act. The regulations mentioned only one scheme and empowered the Secretary of State to make arrangements for sub-schemes under that ‘umbrella’.

Whilst the Government’s drafting skills have been found wanting, there is no denying the logic behind its actions. The umbrella wording of the 2011 regulations was intended to give the Secretary of State flexibility to introduce new schemes, on a regional or national level, without the need for legislative re-drafting. That seems inherently sensible. There is, of course, a need for transparency as to the schemes’ details and sanctions for non-compliance. However, such information can be published in DWP guidance or in specific jobcentres. It is impracticable and unnecessary for Parliamentary draftsmen to be engaged each time a new scheme is trialled or amended.

The economic and political landscape has changed considerably in the past decade and, in present times, the requirements of the 1995 act seem unduly onerous. This is a case of historic legislation becoming out of touch with the administrative needs of the modern day. The Government must go back to the drawing board, to ensure that benefits legislation affords it the flexibility to implement these kinds of schemes without unnecessary administrative burdens. However, technicalities aside, it seems that there is nothing fundamentally wrong with the principle of unpaid work schemes. In fact, the Government might just have the Court of Appeal’s moral support on that front.

Kate Balmer is a barrister at Devereux Chambers