Reilly and Hewstone v Secretary of State for Work and Pensions [2016] EWCA Civ 413 (2

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Re: Reilly and Hewstone v Secretary of State for Work and Pensions [2016] EWCA Civ 41

http://www.bailii.org/ew/cases/EWCA/Civ/2016/413.html

CONCLUSION ON THE UPPER TRIBUNAL APPEAL

We accordingly allow the Secretary of State's appeal in all three cases. In the cases of Ms Jeffrey and Mr Bevan that is the consequence of our disapproving the Tribunal's reasoning on the effect of the 2013 Act, which was the actual basis of its decision, and rejecting the alternative grounds on which they each sought to rely. In the case of Mr Green, who has not sought to raise any other such ground, our decision on the effect of the 2013 Act is determinative by itself. Where that leaves the decisions of the FTT is different between the cases. The decision of the FTT in Mr Bevan's case stands. But in the cases of Ms Jeffrey and Mr Green, the FTT allowed their appeals against the sanction decisions on the basis of the decision of Foskett J in Reilly 1, and those decisions also must therefore now be reversed. The result is that the sanction decisions in all three cases stand.


OVERALL CONCLUSION

After so lengthy a judgment we should summarise our conclusions in both appeals as regards the principal issue, and we will try to do so in language that is accessible to non-lawyers. The decision of the Court of Appeal in Reilly 1 (whose reasoning was later largely approved by the Supreme Court) meant that the non-payment of JSA to claimants who had failed to participate in certain "back-to-work schemes" – described as the imposition of "sanctions" – was not legally valid. Parliament enacted the 2013 Act in order to retrospectively validate those sanctions. We have held that it was successful in doing so as a matter of English law. But we have also held (upholding the decision of the High Court) that in the cases of those claimants who had already appealed against their sanctions the Act was incompatible with their rights under the European Convention of Human Rights. Under the Human Rights Act that "declaration of incompatibility" does not mean that the 2013 Act ceases to be effective as regards those claimants: it is up to the Government, subject to any further appeal, to decide what action to take in response.