CLAIM NO: CO/13860/2013
JANE SMITH
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
BIRMINGHAM ADMINISTRATIVE COURT
ON APPEAL FROM MR JUSTICE HICKINBOTTOM
The Queen (on the application of) JANE SMITH
&
SECRETARY OF STATE FOR WORK AND PENSIONS
1. This matter arises from the failure of Hickinbottom J, in the Administrative Court, to provide a fair hearing in the case of Smith v Secretary of State for Work & Pensions [2015] EWHC 2284 (Admin), and a refusal of permission to appeal by the Court of Appeal.
2. That refusal of permission was made despite the fact that the Claimant was able to establish that the judgement of Hickinbottom J was the product of systematic bias, which included: suppression of evidence; findings which the suppressed evidence showed to be false; the invention of non-existent facts; manipulation of dates, and a finding that it is irrelevant whether, or not, a public authority acts unlawfully.
3. The judge also made three different determinations directly contrary to a Supreme Court judgement dealing with the identical issues, and ignored a Court of Appeal order, giving the Claimant permission to re-introduce two heads of claim.
4. In addition, the application to the Court of Appeal for permission to appeal relied on several judgements which had already determined identical issues, where those courts / tribunals were at the same, or higher, level. Consequently if, as stated, the Claimant's application was without merit then so too, by extension, were the judgements on which she relied, which included a Supreme Court decision. That was an absurd and unsustainable proposition.
5. Despite clear evidence of a miscarriage of justice, the CA refused permission to appeal on the papers.
Background:
6. During the relevant time, the Claimant was unemployed and in receipt of income based Job Seeker's Allowance. The Claimant had participated in the Work Programme (WP), a scheme under Regulation 3.8 of the Schemes for Assisting Persons to Obtain Employment Regulations SI 2013/276 (the SAPOE regulations), made under §17A of the Jobseeker's Act 1995 (1995 Act). The SAPOE regulations replaced the Jobseeker's Allowance (Employment Skills and Enterprise Scheme) Regulations 2011 (the ESES regulations), quashed in Reilly & Wilson v Secretary of State for Work & Pensions [2013] UKSC 68.
7. Shortly before the Claimant completed the WP, the Defendant introduced his Post Work Programme Support measures (PWPS), announced in a press release dated 3 June 2013. The policy, applied to all WP leavers, imposed a rise in conditionality (weekly job seeking steps), daily contact / attendance at a Jobcentre; mandatory registration on the Universal Jobmatch website, and automatic and immediate mandatory referral to an employment scheme under §17A of the 1995 Act. The Claimant challenged the lawfulness of the policy by way of judicial review proceedings issued on 24 September 2013.
8. There were originally six grounds of claim as follows:
Ground 1: The Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 are ultra vires the provisions of §17A of the Jobseeker’s Act 1995 in that they provide no prescribed description of the listed schemes, as required by the Act.
Ground 2: The Notice of referral to the Skills Conditionality scheme, Notice SC04 02/13, and other Notices of referral regarding schemes under the Regulations, are unlawful in that they fail to comply with the Regulations.
Ground 3: The Defendant is acting unlawfully by compelling, under the menace of a penalty, persons in receipt of Jobseeker’s Allowance to exceed the statutory requirements of ‘actively seeking work’ under §7(1) of the Jobseeker’s Act 1995, defined in §18 of the Jobseeker’s Allowance Regulations 1996 SI 1996/207. The Defendant is also acting unlawfully by compelling, under the menace of a penalty, participation in schemes under §17(A) of the Jobseeker’s Act 1995 which are ultra vires the Act.
Ground 4: The mandatory requirement that persons in receipt of Job Seeker’s Allowance must place confidential personal information upon a specific website, under the menace of a penalty: is unlawful; violates Articles 1 and 8 of the European Convention on Human Rights, and is in breach of the Data Protection Act 1998.
Ground 5: The Defendant’s refusal to allow claimants to appeal against referral to ‘work for your benefit’ schemes, even where those schemes are unlawful, and a refusal to allow claimants to appeal against directions by an advisor, even where those directions are unfair and / or unlawful, offends against natural justice and violates Articles 1 and 6 of the European Convention on Human Rights, as does the enforcement of sanctions where their legitimacy has not been determined by an independent and impartial tribunal.
Ground 6: The Defendant has failed to provide a published policy and/or description of schemes under the Regulations and the PWPS, thus rendering it impossible for individuals affected to determine their position and make meaningful representations. The PWPS measures are unlawful, in that they are not covered by regulations, but rely on impermissible sub-delegated powers. The Defendant is also misusing public funds in the referral of individuals to schemes under the PWPS.
9. At an oral hearing on 19 May 2014, before Foskett J, the Claimant was allowed to advance grounds 1-3, but only in relation to the SC scheme, and not the PWPS, with permission to advance the other 3 grounds being refused.
10. The Claimant then appealed to the Court of Appeal for: (a) permission to challenge the Defendant's PWPS policy and; (b) permission for ground 6 to be advanced. The CA allowed the appeal in full.
1: The failure of referral notices to meet the statutory requirement.
11. On 16 July 2013 the Claimant was referred to the Skills Conditionality scheme, made under Regulation 3.7 of the SAPOE regulations. Section 5(2)(c) of the SAPOE regulations (identical to 4(2)(c) of the ESES regulations in Reilly) requires that notices must contain "details of what the claimant is required to do by way of participation in the Scheme". The Supreme Court held in Reilly that, for the statutory requirement to be met, the notice must contain both the hours and some idea as to the nature of the activity concerned:
55: In our opinion, there was a failure to comply with regulation 4(2)(c). The letter of 16 November 2011 merely informed Mr Wilson that he had to perform “any activities” requested of him by Ingeus, without giving him any idea of the likely nature of the tasks, the hours of work, or the place or places of work. It seems to us, therefore, that the letter failed to give Mr Wilson “details of what [he was] required to do by way of participation”.
12. In the Claimant's case none of the notices served on her met the statutory requirement, in that they did not identify the hours, nor did they identify the nature of the activity, one notice requiring her to report to reception and the others to a named individual.
13. The Supreme Court decision was binding on all lower courts, and thus it was not open to Hickinbottom J to find that the notices served on the Claimant met the statutory requirement. In making such a finding he was defying the Supreme Court and acting beyond his powers. In his judgement Hickinbottom J tries to circumvent the law by finding that the Claimant received verbal information about the course. In Reilly, Mr Wilson also had received verbal information and had actually attended an induction day.[1] That was irrelevant to the statutory requirement, which is that the hours and activity must be in the notice itself, for the obvious purpose, inter alia, of providing legal certainty.
14. When refusing permission to appeal, LJ Treacy specifically finds, at Reason 2 of his Order, that the notices met the statutory requirement. They did not, and it was absolutely apparent and beyond question that they did not. There can, in reality, only be two reasons why LJ Treacy made the finding he did, which was either (a): a complete failure to properly read and understand the issues, or (b); the biassed assumption that, as a litigant in person, the Claimant's submissions were worthless.
15. It is to be noted that, after the Claimant was refused permission to appeal, the Court of Appeal dealt with the same issue of defective notices under §17A of the Act in Reilly & Hewstone v Secretary of State for Work and Pensions [2016] EWCA Civ 413. Mr Hewstone had refused, on four occasions, to participate in various sub-schemes under the ESES regulations and had been sanctioned. He had successfully appealed to a First Tier Tribunal against the first three sanctions. His fourth appeal related to the failure of the notice, served on him under regulation 4(2)(c) of the ESES regulations, to meet the statutory requirement as it did not contain the hours and nature of the tasks. That appeal had been stayed by the Tribunal, in response to the Jobseekers (Back to Work Schemes) Act 2013, which retrospectively validated the ESES regulations and notices served under them.[2] The defect argued by Mr Hewstone is precisely the same failure as in the Claimant's case. In Mr Hewstone's case the CA found:
30 "However, but for the Act he would have been entitled to rely before both tribunals on the vires and regulation 4 (2) (c) challenges .................. and he would have been bound to succeed." (Emphasis added)
16. It is a fact that both Wilson and Hewstone were represented by lawyers, whilst the Claimant was a litigant in person.
[1] Judgement of Foskett J [2012] EWHC 2292 (Admin) at paragraph 112
[2] The Claimant’s notices were not subject to retrospective validation, as they were issued under the SAPOE regulations, which replaced the ESES regulations.
2: The Secretary of State's Post Work Programme Support policy was unlawful.
INCREASED CONDITIONALITY:
17. Individuals claiming unemployment benefit must sign a Jobseeker's Agreement (JSAg, renamed Claimant Commitment), to confirm that they are "available for, and actively seeking work". Such conditionality is defined at §7 of the 1995 Act and at regulation 18 of the Jobseeker's Allowance Regulations 1996 (the 1996 Regulations), laying out the number of job-seeking steps an individual must take each week. Claimants who fail to meet the conditionality criteria will lose the benefit, and thus their means of support.
18. Individuals who are, or may be, affected by legislation must be able to determine their position, with legal certainty, from the legislation itself, as per Scott LJ in Blackpool Corporation v Locker [1948] 1 KB 349 (Locker), at 362:
" ........... the aggrieved citizen at least knows or his lawyers can tell him just what his rights and duties and restrictions are under the new law because each kind of statutory law is at once published by the King's printer".
19. This was a point also taken up by the Supreme Court in Reilly, citing Locker at paragraph 47 of their judgement:
"The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute. Further, particularly where the statute concerned envisages regulations which will have a significant impact on the lives and livelihoods of many people, the importance of legal certainty and the impermissibility of sub-delegation are of crucial importance. The observations of Scott LJ in Blackpool Corporation v Locker [1948] 1 KB 349, 362 are in point: “John Citizen” should not be “in complete ignorance of what rights over him and his property have been secretly conferred by the minister”, as otherwise “[f]or practical purposes, the rule of law … breaks down because the aggrieved subject’s legal remedy is gravely impaired”.
20. Regulation 18 of the 1996 Regulations provides a clear formula: 18(1):
"For the purposes of section 7(1) (actively seeking employment) a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week."
This provides a universally applicable benchmark, whereby individuals can determine, with legal certainty, that if they have completed three steps in any given week they are in compliance, and cannot be sanctioned.
21. It is precisely for this reason that the Upper Tribunal made the finding it did in Social Security Commissioner [2007] UKSSCSC CJSA 1814 2007 (13 September 2007), namely that a JSAg imposing 6 steps per week exceeded the regulatory benchmark, and that the individual concerned, who took 4 steps, had met the test. Commissioner Williams also found:
13................ "To be valid, a jobseeker’s agreement must comply “with the prescribed regulations in force”: section 9(1) of the Act. The pattern of the legislation is that a jobseeker’s agreement must comply with the test of actively seeking work in sections 1(2)(c) and 7 of the Act and regulation 18 of the Regulations and not the other way round.”
22. On 3 June 2013 the Secretary of State for Work and Pensions introduced a new policy, entitled Post Work Programme Support (PWPS). It related to those individuals who had completed the Work Programme (WP), and comprised a number of measures increasing conditionality, including an exponential increase in the number of weekly steps under Regulation 18.
23. The Defendant's policy was unlawful in that it sought to redefine the conditionality threshold and thus subvert statutory legislation. It was also unlawful in that it sought to confer impermissible sub-delegated powers on individual advisors to set their own agendas regarding conditionality, thus denying legal certainty, contrary to Locker et al.
24. There was a further improper purpose behind the PWPS, namely to ramp up conditionality beyond that allowed by law for the purpose of increasing opportunities to sanction individuals, creating 'off-flow'. The Claimant was originally issued with a 3 step JSAg, as per the regulations. Following completion of the WP the number of steps was increased under the PWPS policy, initially to 14, and then to 20. Had the Claimant not ceased claiming benefit, in January 2014, the number of steps would have continued to increase. Uncontested tape recording transcripts of interviews with the Claimant's advisor show that, on 3 December 2013, the advisor increased her weekly number of steps to 20. When the Claimant objected because she could be sanctioned for missing even one step, the advisor confirmed: "that's what we're doing, that's the whole purpose". [1]
25. The Claimant adduced copious, admissible, evidence to show that the Defendant had sanctioned over half a million JSA claimants in 2013 for failure to comply with an exponential increase in the number of steps, and that he was deliberately increasing the number of steps for the unlawful purpose of increasing sanctions (individuals sanctioned are not included in Government unemployment statistics). The evidence included published reports from reputable independent organisations such as the CAB, and evidence submitted to the Parliamentary Select Committee, reviewing sanctions[2]. Justice Hickinbottom refused to consider that evidence, and its existence is entirely suppressed in the judgement.
26. A report for the Child Poverty Action Group titled "Explaining the rise and fall of JSA and ESA sanctions 2010-2016" [3] confirmed the existence of such an unannounced policy. At the section headed summary:
The conclusions are that:
"There was an unannounced change of policy by ministers in May 2010 to pressurise DWP staff to make more referrals for JSA sanctions. ............ "
And, under Conclusions:
"This was responsible for most of the rise in JSA sanctions, some 3.3 percentage points per month. It is reflected in referrals for every reason for JSA sanction under the control of Jobcentre Plus, but particularly for those for allegedly ‘not actively seeking work’. They were running at under 0.5% per month prior to the Coalition, but were then pushed up to almost 3%. Because no announcement of this change of policy was made, we do not know exactly who was responsible for it, but presumably all the ministers with relevant portfolios were involved."
27. At paragraphs 95-96 of his judgement, Hickinbottom J finds that individual advisors are free to set their own level of conditionality, and attempts to justify his finding on the basis that, as §7(1) of the 1995 Act does not identify a specific number of steps, any number may be imposed. This finding wilfully ignores the fact that §7(2) directs that regulations will provide for the number of steps, and Regulation 18 itself clearly identifies that it is made under §7(1) of the 1995 Act. Regulation 18 does, in fact provide a formula for the steps necessary to meet conditionality, and that figure is 3.
28. At paragraph 95 Hickinbottom J states that the Claimant had conceded that it was "not right as a matter of either grammar or mathematics" to say that “more than two” means “three and no more than three”. Despite being browbeaten, the Claimant made no such concession. What the Claimant actually said was that, whilst individuals should do all they can to obtain employment, for the purposes of enforcement and sanctioning the benchmark figure is three steps.
29. Were advisors free to set their own levels of conditionality, they would be imposing a different threshold to that in Regulation 18, and their actions would be unlawful. Advisors may no more set their own levels of conditionality than individual police officers may set their own speed limits.
30. At paragraph 97 of his judgement Hickinbottom J found that, even if he was wrong in his construction of Regulation 18 and the Defendant was acting unlawfully by increasing conditionality, that fact was "immaterial". This was a startlingly perverse statement. Firstly, an unlawful act is an unlawful act, and cannot be 'immaterial'. Secondly the purpose of the judicial review was to determine the lawfulness of the Defendant's actions and, if unlawful, declare them so. It is patently absurd to suggest that the answer to the question was immaterial.
31. Paragraph 97 then attempts to provide a pretext as to why the lawfulness of the Defendant's actions was 'immaterial'. At 97(i) he finds that the Defendant's regime did not allow for a sanction for failure to perform a commitment in a JSAg, and therefore the Claimant could not be sanctioned for non-compliance. This finding was particularly perverse in that it was predicated on the assumption that the Defendant would always act lawfully, and such an assumption is indicative of a biassed mindset.
32. Moreover, to reach such a perverse finding the judge had to ignore the evidence before him, which showed that the Defendant had sanctioned over half a million claimants for precisely that reason, and that it had been done for the undisclosed purpose of creating 'off-flow'. It also required the judge to deliberately ignore the fact that the Claimant herself had been reported for sanction for non-compliance with increased conditionality, and that a DWP Supervisor had specifically confirmed that a sanction was correct. All that documentary evidence was before the judge.
33. At paragraph 97(ii) the judge then contradicts his previous paragraph, by admitting that a sanction can be applied for a failure to perform the number of steps written in the box on the JSAg, because this is a commitment. Whilst he hedges the latter finding with adverbs such as indirectly and potentially, he is simply arguing against himself. The fact is that a sanction will be applied for failure to do the number of steps imposed, resulting in the loss of an individual's means of support. It is for precisely this reason that the regulations exist: to provide legal certainty by way of a universally applicable benchmark figure.
34. At paragraph 97(iii) he accepted that the Claimant was threatened with a sanction for not signing an increased JSAg, but then effectively dismissed that threat, at paragraph 97(iv) by arguing, irrelevantly, that she had not been subject to such a threat before.
35. At paragraph 97(iv) he dismissed the issue of an unlawful level of conditionality on the basis that it was not "onerous". The degree of onerousness was entirely irrelevant to the question of law, but such a wholly improper consideration demonstrated a clear predisposition towards bias in favour of the Defendant. Moreover, to access numerous relevant web sites, check for any possible vacancies, establish whether, or not, they are suitable, then either complete an online application or do so by post or e-mail and then make a record of the activity, takes time. To suggest that doing this 15 times takes only "a matter of minutes" is wilfully perverse.
36. At paragraphs 97(v-vi) of his judgement, Hickinbottom J extended his finding that it is immaterial whether, or not, the Defendant acted unlawfully by reference to Regulation 31 of the 1996 Regulations,[4] which provides for adjudication of JSAg contents. The judge found that this "robbed the threat of sanction .......... of any force".
37. Firstly, individuals signing an increased conditionality JSAg are not doing so via informed consent freely given. They are signing under duress, through the threat of loss of benefit. Such duress was a point taken by the Supreme Court in Reilly at paragraph 64 of their judgement:
"For the individual, the discontinuance or threat of discontinuance of jobseeker’s allowance may self-evidently cause significant misery and suffering. The ability to appeal against a notice or a withholding of benefits (to a First-tier Tribunal of the Social Entitlement Chamber under section 12(2) of the Social Security Act 1998) is a form of protection. However, it is necessarily retrospective and, in practice, it may be small comfort to a person who is faced with an immediate termination of benefit."
38. The right of appeal is further prejudiced by the time taken to determine the issue, a point made by the House of Commons Work and Pensions Committee[5] regarding the process for challenging a decision:
108 "If someone thinks they were sanctioned unfairly they can challenge the decision by way of Mandatory Reconsideration (MR) followed by a right of appeal to the First tier Tribunal. The Law Society of Scotland said, however, that the process was neither “sufficiently effective nor speedy enough to be regarded as satisfactory means of redress”. It noted that there were no time limits for MR to be carried out, most appeals took over six months to be heard and, if successful, people then “faced a further delay of four weeks or more until their benefit [was] reinstated and any arrears paid”. As a result, people often suffered a potentially incorrectly imposed sanction, and consequent unnecessary hardship, for “weeks or months” before their challenge was even heard. The Minister confirmed that the Department did not make “any specific commitments to claimants” about how long it takes for a decision at MR or appeal."
39. Secondly, Hickinbottom J's finding constituted the legally untenable proposition that it is irrelevant if a public authority acts unlawfully, as each individual victim of the unlawful act can mount a challenge. Such an approach is designed to place the onus on the victim, and is designed to allow the unlawful activity to continue unchecked.
40. Thirdly, such an approach would be unsustainable in law even if the adjudication in question was by an independent third party. In the present case the 'adjudication' is carried out by a decision maker, who is an employee of the Defendant, carrying out his policies. The alleged right in question is illusory. The lack of an independent appeals procedure was identified in the Child Poverty Action Group report (page 9)
The Rate of Adverse decisions on referrals:
Once a referral is made, it goes to a DWP decision maker for determination. The Social Security Act 1998, prepared by the Conservative Peter Lilley but enacted by Labour ministers, specifically Harriet Harman and Frank Field, scrapped the independent adjudication which had always been a central feature of British unemployment insurance since 1911. Since April 2000, all decisions on benefit sanctions and entitlements have legally been made by the Secretary of State. This gives ministers complete control of the decision makers as well as of the staff making referrals. (Emphasis added.)
In the case of every single reason for JSA sanctions, a referral in 2016 was much more likely to result in a sanction than a referral in 2010. Since May 2010, the proportion of total referrals (excluding those reserved and cancelled) resulting in sanction has risen from 60% to 80%, with a first hike to around 70% starting in December 2011 and a second to 80% starting in March 2013
41. It is also a fact that benefit claimants include a significant proportion of vulnerable people with learning difficulties, mental health problems, or other difficulties, such as English being their second language. These are individuals who are least likely to mount a challenge, which makes the judge's proposition at paragraph 36 supra even more perverse.
42. The right to the adjudication in question, under Regulation 31(g)(i), requires that all JSAgs must contain "a statement of the claimant's right to have a proposed jobseeker's agreement referred to an adjudication officer". The section of the JSAg which purports to meet this requirement stated:
“I know if there is any doubt about my benefit claim or disagreement about my Jobseeker’s Agreement, my case may be sent to a decision maker, which could result in the loss of my Jobseeker’s Allowance. If this happens I will be told. If I am not satisfied with the decision I can ask for it to be explained or reconsidered or I can appeal to an independent appeals tribunal.”
43. The statement completely failed to identify any right to adjudication, let alone a right to adjudication without penalty. In fact, it indicated quite the opposite, namely that any "doubt" or "disagreement" could lead to the loss of Jobseeker's Allowance.
44. This issue was dealt with by the Upper Tribunal, who are specialists in such matters, in CH v SSWP (JSA) [2015] UKUT 0373 (AAC). At paragraph 28 of his judgement Judge Ward found that the JSAg:
". .......makes no reference to such a right. The only rights mentioned in the above paragraph are (a) the right to be told if the case is sent to a decision maker (b) the right to ask for it to be explained or reconsidered and (c) the right of appeal. The language of the opening sentence is that of an acknowledgment that JSA may be in jeopardy rather than of a right on the part of a claimant to require a referral to be made."
45. Judge Ward goes on to find:
If the paragraph were truly concerned to notify a claimant of his rights under s.9(6)(b) it would (a) indicate that the decision maker has the power to decide that compliance with the proposed jobseeker’s agreement would be unreasonable and to direct that it be changed and (b) indicate that the right arose prior to the claimant signing it (“I acknowledge that prior to entering into this jobseeker’s agreement I have had the right to refer it to the decision maker to decide…”). I conclude it was non-compliant with reg 31. …….
46. At 97(v) Hickinbottom J found that the Regulation 31 paragraph, which he found was "positively discouraging" and which threatened loss of benefit for any doubt or disagreement, actually "made clear, as it was required to do, that the Claimant had such right" to adjudication.
47. The refusal of permission to appeal, on the basis that the application was entirely without merit, gives rise to a further issue. The Claimant relied on judgements by the Upper Tribunal and Commissioner, which are at the same level as the High Court, along with Court of Appeal and Supreme Court decisions. The Upper Tribunal judgements determined exactly the same issues as that in the judicial review, namely the number of weekly steps required to meet conditionality and the failure of JSAgs to properly identify a right to adjudication. Consequently, if the Claimant's argument was genuinely entirely without merit, then so too must be the decisions of the Upper Tribunal. That is the unarguable consequence of the refusal of permission
48. It is also a standard reason that, where there are conflicting judgements at the same level, permission to appeal should be given.
DAILY CONTACT UNDER THE PWPS POLICY:
49. Section 7 of the 1995 Act, and Regulation 18 of the 1996 regulations, clearly identified that the conditionality regime was on a weekly basis. On 15 October 2013 the Claimant became subject to daily contact under the Defendant's PWPS policy, which required her to be available for a telephone call throughout the day. On 16 October 2013 the Claimant received the first call, during which she was told that the call could be made at any time during the day, that she was required to be available at all times and that "non-contact" could prejudice her benefit.[6] The purpose of the daily contact was to enforce the increased conditionality imposed under the PWPS policy.
50. At paragraph 114(iv) of his judgement, Hickinbottom J found that the weekly nature of Regulation 18 could be circumvented by reference to Regulations 23 and 24 of the 1996 Regulations which, he claimed, permitted the Defendant to utilise daily contact as a method of enforcing conditionality.
51. One part of regulations could not subvert another part of the same regulations. In fact, regulation 23 imposes a requirement that any interview must be preceded with a notification stating the manner, time and place of the interview, a requirement with which the PWPS failed to comply. Regulation 24 merely deals with the provision of information and, where attendance is covered, refers back to Regulation 23. Neither regulation could legitimately be read as converting weekly contact into daily contact, and the judge's finding is irrational. The requirement that an individual be available throughout the day, for possible contact at an unspecified time, fails to comply with the relevant conditionality legislation.
52. Due to the fact that conditionality is a weekly regime, daily contact was unlawful and constituted harassment.
AUTOMATIC REFERRAL UNDER THE PWPS POLICY TO EMPLOYMENT SCHEMES:
53. The PWPS press release identified that there would be mandatory participation, for all Work Programme (WP) leavers, in one of the employment schemes made under §17A of the 1995 Act.
54. The Defendant was under a common law duty to ensure individuals were able to make informed representations prior to referral to schemes under §17A (see Reilly at paragraph 65 - dealt with at paragraphs 84-87 below). It is a sine qua non that such representations must be capable of affecting the decision, and the mandatory nature of the PWPS policy specifically denied individuals such an opportunity, and thus the policy was unlawful.
55. The mandatory nature of the referral was confirmed by both the Defendant's own flow chart, which showed that all WP leavers were to be automatically referred, and the relevant provider 'toolkit' which stated that "all referrals from Jobcentre plus to training provision will be done on a mandatory basis and advisors will have no discretion." Both documents were analysed during the hearing.
56. The referrals were to a course within the Skills Conditionality scheme, which required an identified skills need to justify referral (see paragraph 89 below). The course itself was titled 'Getting that Job', and was a basic, general, two week course whose participants included both the recently unemployed and all WP leavers, and consisted of CV writing and basic 'Word', both things already addressed on the WP, and some talks about matters such as the dangers of stress. It comprised an initial assessment followed by the two week course proper. The initial assessment was to identify any individuals who had literacy / numeracy difficulties. Such individuals would already have been identified and assisted on the WP, as one of its purposes was to recognise and address such obstacles to employment.
57. At paragraph 75(iii) of his judgement, Hickinbottom J attempted to circumvent the mandatory nature of the policy, by claiming that there was some kind of filtering process justifying referral. He found that all those WP leavers with literacy / numeracy difficulties would be filtered out. The automatic, blanket, selection of all adults with no literacy / numeracy difficulties did not identify a skills need, and thus could not justify referral.
58. He also found that all youths were filtered out. The WP was a 2 year course with a minimum starting age of 18. Consequently, there would be no completers under the age of 20, and thus no youths. That fact was clear from the evidence put before him.
59. He found that the 'Getting that Job' course was specifically designed to assist the long term unemployed when he knew, from the evidence before him, that that was not the case and that the course was formulated for the recently unemployed.
60. The judge then further justified the course by reference to paragraph 8 of the witness statement of Ms Pauline Crellin, the Defendant's Deputy Director with responsibility for Skills Conditionality. The witness falsely stated that an employers' report[7] identified that the lack of a work history, which she incorrectly described as a 'soft skill', led to 19% of employers finding vacancies hard to fill. The report actually identified it was the lack of relevant experience which was the problem, which is a different thing altogether. This matter was dealt with during the proceedings, and yet the judge cited a specific paragraph knowing it to be untrue.
61. At paragraph 111 of his judgement he stated that all the individuals would obtain some benefit from the course. This was irrelevant to the issue of mandatory referral, and also demonstrated a lack of logic and impartiality.
62. Not only were the findings of Hickinbottom J entirely false, and shown to be so by the evidence before him, they also deliberately sidestepped the basic issue: namely that the mandatory status was unlawful.
MANDATORY REGISTRATION ON THE DEFENDANT'S UNIVERSAL JOBMATCH WEBSITE UNDER THE PWPS POLICY:
63. The PWPS policy required compulsory registration on the Defendant's Universal Jobmatch website. The Claimant had been given permission by the Court of Appeal to argue all PWPS measures, which perforce included the compulsory registration. Despite that permission, Hickinbottom J refused to allow the Claimant to make submissions on the issue. That fact was concealed in his judgement. Moreover, having defied the CA and prevented submissions, Hickinbottom J then went on to make a finding on that very issue.
64. At paragraph 114(iii) of his judgement, he dismissed the issue on the basis that the jobseeker's direction provision, under section 19A of Jobseekers Act 1995, allows the Defendant to enforce registration. This finding amounts to the untenable assertion that, by issuing such a direction, the Defendant is free to compel claimants to do whatever he wants, whether or not it is lawful. This is a proposition entirely lacking in merit.
65. The facts regarding compulsory registration were clear: The Claimant was compelled to register on the site under the threat of loss of benefit for non-compliance. The EU e-privacy Directive 2002/58/EC, as amended by Directive 2009/136/EC, required that the user must give consent for cookies. Such consent is defined at Article 2(h) of Directive 95/46/EC as a "freely given specific and informed" indication of the individual's wishes.
66. Consent is only valid if there is no element of coercion, intimidation or oppression. The Defendant's requirement that individuals must register, or lose their benefit, could not possibly equate with informed consent freely given.
67. The Claimant did not wish to register on the site as she disagreed with the site's privacy policy and use of cookies, but nevertheless was compelled so to do. There were a large number of alternative sites available. Regulation 18 of the 1996 regulations makes no stipulation that any specific site must be used for job searching.
68. At paragraph 114 the judge went on to dismiss the entire PWPS policy issue by simply listing a series of regulations, which he claimed enabled the policy. Merely listing regulations, without any proper examination of whether, or not, policies are operating intra vires that legislation is both tendentious and irrational.
[1] Towards end of page 56 of transcripts.
[2] House of Commons WP Committee’s Review of: Sanctions Beyond the Oakley Review’.
[3] http://www.cpag.org.uk/david-webster
[4] Made under §9(6)(b) of the 1995 Act
[5] House of Commons Work and Pensions Committee Benefit Sanctions Nineteenth Report of Session 2017-2019.
[6] Page 43 of transcripts.
[7] UK Commission for Employment and Skills Employer Skills Survey 2011 (fig. 4.2 at page 49)
[8] §19A of the Jobseekers Act 1995
3: Re paragraph 98 of the judgement.
69. At paragraph 98 of his judgement, Hickinbottom J created two bases for the purpose of providing, allegedly, a complete answer to the claim", namely that (i): the Claimant did not experience "any significant level of suffering or misery" and (ii); that her JSAg was to be reduced from 20 steps to 3. Taking these in order:
70. The claim was for judicial review of the lawfulness of the Defendant's actions. That is a question of law. The Claimant's emotions had absolutely no relevance whatsoever to a fair determination of that question. The claim was not a claim for damages. The requirement that the Claimant should prove distress was a perverse barrier introduced to impede a fair determination.
71. However, it is also a fact that witness statements, and tape recorded interviews, all showed that the Claimant had suffered distress. Having invented a false requirement to show distress, the judge then calculatedly ignored evidence of that distress, thus manipulating things twice over.
72. The second justification is that the Claimant's JSAg was to be changed from 20 steps to 3 steps. This was false, and the judge would have known it to be false, as the matter was covered in the Claimant's skeleton argument, submissions, witness statements, evidence provided by the Defendant, and thoroughly dealt with during the hearing. There was also a complete audit trail in the bundle of evidence regarding the matter:
i. On 16 July 2013 the Claimant was required to sign a 14 step JSAg. (Document)
ii. On 30 July 2013 the Claimant was required to sign a second 14 step JSAg., which she signed annotated "under duress". (Document and tape recording)
iii. On 29 August 2013 the Claimant was required to sign a 13 step JSAg, which she signed "under duress". (Document and tape recording)
iv. On 3 December 2013 the Claimant was required to sign a 20 step JSAg or have her benefit suspended. She signed it "under duress. Not binding". (Document and tape recording)
v. On 19 December 2013 the Claimant was told that she would have to sign a replacement JSAg, without her caveat, or have her benefit suspended. The Claimant refused to sign a 20 step JSAg under those conditions. (Document and tape recording)
vi. The matter was then referred by the advisor for adjudication. (Tape recording)
vii. The Claimant stated, to the decision maker (DM), that the number of steps in a JSAg could not exceed that allowed by the regulations. The Claimant gave no specific figure:
"A JSAg must comply with the relevant statutory regulations. A JSAg cannot enforce a level of conditionality beyond that in the said regulations. Claimants can be neither compelled to sign, nor punished for not signing, JSAgs which are void." (Document)
viii. The advisor compiled a handwritten memorandum stating that she believed 20 steps would be appropriate, but that the Claimant considered 3 steps were all that could be imposed by law. (Memo supplied by Defendant under a SAR request)
ix. The advisor made a further written submission to the DM, stating that she believed the JSAg should be 20 steps, but the Claimant thought it should be 7 steps. (Supplied by Defendant under a SAR request)
x. The DM's letter, dated 31 December 2013, stated that the "doubt" re the Claimant's proposed variation "has now been removed". It gave no figure. (Notice of Decision).
xi. On 10 January 2014 the Job centre appealed against the DM's determination. (Defendant's internal e-mail, supplied by Defendant under SAR request.)
xii. On 14 January 2014 the Claimant ceased claiming benefit. The JSAg in operation at that time was for 20 steps.
xiii. On 30 January 2014 the decision maker's supervisor informed the Jobcentre that the decision was wrong, and the decision maker would be re-educated. (Defendant's internal e-mail, supplied by Defendant under SAR request.)
73. The audit trail clearly showed that, at the time the Claimant ceased claiming benefit, the 20 step JSAg annotated "under duress - not binding" was in force. It is not possible to say what the final outcome would have been.
74. Hickinbottom J found, however, that the Claimant was to have been issued with a 3 step JSAg, matching the original one issued on 15.12.2007. It was only open to the judge to make such a finding if he believed that (a): the appeal by Telford Jobcentre against a 3 step JSAg was certain to fail, and (b); the opinion of the DM's Supervisor was clearly wrong.
75. It also required that the DM was correct in law by her determination that the Claimant's submission, that a JSAg "cannot enforce a level of conditionality beyond that in the said regulations", necessitated a 3 step JSAg. The judge, consequently, contradicts his earlier finding that the level of conditionality is whatever an advisor says it is.
76. The judge concluded paragraph 98 with the assertion that it provided a complete answer to the claim. It did not - the claim was about far more than a 3 step JSAg, and had nothing to do with the invented requirement for 'distress'. What paragraph 98 did was to manufacture a fraudulent pretext to defeat the claim. That proof of bias was sufficient, in itself, to justify an appeal. In such circumstances, the fact that the application was found to be entirely without merit raises serious questions about the Court of Appeal.
4: The lack of a prescribed description in the Skills Conditionality Scheme regulations.
77. The Court of Appeal in Smith v Secretary of State for Work & Pensions [2015] EWCA Civ 229 found, at paragraph 25, that all schemes under §17A of the 1995 Act must define a specific "character", e.g. training, education, working with a mentor or work related activity. This definition both enables those participating to identify the nature of the activity, and excludes activities outside the specific character identified. The Skills Conditionality Scheme in question is defined as "training or other activity", which encompasses any activity and excludes none. Consequently it fails to provide a meaningful description and thus is ultra vires the 1995 Act.
78. In addition, Parliament was told by the Defendant that individuals would only be referred to SC training where a specific "skills need" had been identified. The regulations fail to impose such a requirement, and consequently any individual may be required to do any activity for any reason.
79. At paragraph 75(iv) of his judgement, Hickinbottom J found that the phrase, "training or other activity", constituted a prescribed description under Regulation 3(7) of the SAPOE regulations, as it was followed by words indicating the purpose of the scheme: "designed to assist [the] claimant to obtain skills needed to obtain employment". All schemes under §17A are designed to assist in obtaining employment, as is clear from §17A(1) itself: "........ schemes of any prescribed description that are designed to assist them to obtain employment."
80. The ESES regulations quashed in Reilly contained a similar definition of purpose at 2(1), in that they were: "designed to assist claimants to obtain employment or self-employment, and which may include for any individual work-related activity (including work experience or job search)". Those regulations were quashed for want of a prescribed description. A definition of purpose does not constitute a description of the scheme, nor does it render regulations intra vires.
81. At paragraph 75(v) the judge went on to find that individuals "will know with specificity precisely what is being required of them in the mandatory regulation 5(2) notice". Notices under 5(2) relate solely to notification of the requirement to participate in a scheme. They have nothing whatsoever to do with the required description of a scheme under an entirely separate part of the regulations. Parliament would not have imposed a requirement for a prescribed description if they intended it to be circumvented by a notice of participation.
82. Moreover, in addition to subverting the intentions of Parliament, the finding was signally irrational for another reason, in that it found that notices served under Regulation 5(2) contained the exact "specificity" necessary to allow a "precise" determination of the nature of the activity. The notices in Reilly and Hewstone were void in that they failed to identify hours, place and nature of activity. Similarly the notices served under 5(2), all from a standard template, also failed to provide the information required under the legislation. The Claimant's notice for 16 July merely stated: "Your training starts on Monday 12 August at 9am. You should report to reception". For 15 October it stated: "Your appointment is 30/10/13 at 10am. You should report to Graham Reynolds", and for 12 November: "Your training starts on 18/11/13 at 9am. You should report to Graham Reynolds". Those notices were put before Hickinbottom J, who thus was fully aware that his finding, that notices contained the exact "specificity" necessary to allow a "precise" determination of the nature of the activity, was wholly untenable.
83. At 75(vi) Hickinbottom J went on to find that it was irrelevant if the purported description under 3(7): "training or other activity" was vague, as schemes were designed to assist claimants to obtain skills necessary to gain employment, "and that necessarily presupposes that the particular claimant has a skills need in respect of which the activity is designed to assist him obtain". This is startlingly irrational. Firstly, it yet again seeks to allow the Defendant to circumvent the legal requirement imposed by Parliament for a prescribed description. Secondly, it constitutes the fatuous proposition that the mere act of referring an individual to the SC scheme, in itself, proves a skills need and removes the need for a prescribed description of the scheme.
5: The Defendant failed to provide information of the SC scheme, rendering it impossible for individuals affected to determine their position and make meaningful representations.
84. The issue of the common law 'prior information duty' was dealt with by the Supreme Court in R(WL Congo) v Secretary of State for the Home Department [2011] UKSC12, [2012] 1AC 245, where Lord Dyson said:
“What must … be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”
85. he same point was taken up again by the Supreme Court in Reilly, at paragraph 64 onwards of their judgement. The Reilly judgement was cited by the CA in Reilly and Hewstone v Secretary of State for Work & Pensions [2016] EWCA Civ 413, at 13(3):
"The Court held (at para. 65 of the judgment of Lord Neuberger and Lord Toulson) that the Secretary of State was under a common law duty as a matter of fairness – distinct from the requirements of regulation 4 (2) (c) – to ensure that claimants had access to sufficient information about any scheme in which they might be required to participate before such a requirement was made, so that they were enabled to make representations about its suitability; and (at para. 75) that a failure so to ensure would, if it were material, vitiate the effect of notice under regulation 4. We refer to this as “the prior information duty”. We set out the relevant passages in full at para. 155 below."
86. Those decisions make it clear that the onus is on the Defendant to provide the information necessary for an individual to make informed representations, before the decision is made, and not on the individual to attempt to ferret out the relevant information. The prior information duty thus requires a three step approach: (i) the individual must be informed of the intention to refer and given the information necessary to make informed representations, (ii) the individual then is provided with the opportunity to make informed representations, and (iii) if appropriate after informed representations, and only if appropriate, a notice is served.
87. On 16 July 2013 the Claimant fell within the scope of the PWPS policy. She was told that she was referred to the Skills Conditionality scheme, this being the scheme operated under the PWPS policy in the Staffordshire and Shropshire area, and to which all WP leavers were referred.
88. As the Claimant's contemporaneous witness statement,[1] and affidavit[2] show, the advisor gave no information on 16 July with regard to the scheme, merely confirming that referral was mandatory for all WP leavers. This was in accord with the Defendant's flow chart and provider's 'toolkit' - referral was "on a mandatory basis and advisors will have no discretion." This in itself was incompatible with the prior information duty.
89. The Defendant had stated in 2011, to Parliament and in his response to the Social Security Advisory Committee, that individuals would only be referred to that scheme where there was an identified skills need, and that the views of those being referred would be taken into account[3].
90. The scheme in question was a training scheme. In such circumstances, in order to allow properly informed representations, individuals would need information about the specific course itself, such as its contents and level, to allow a proper determination as to its suitability. Mere information that it was a training scheme would be insufficient to meet the common law duty.
91. The Claimant's JSAg was amended, on 16 July, to read: "I will attend Getting That Job course with TCAT on Monday 12 August at 9am for 2 weeks." The referral notice, served at the same time, stated that she was required to participate in "Getting that Job training" at Telford College (TCAT), gave a start and finish date and instructed the Claimant to report to reception at 9am. The title of the course suggested that it would be a repetition of the activities already completed on the two year WP.
92. The Claimant's witness statement dated 10 September, and affidavit, both show that she was told, on 16 July 2013, that she was required to participate in the course, and consequently that was the date of the decision. That evidence also confirmed that she was given no information whatsoever about the course, and no opportunity to make any representations, informed or otherwise. Consequently, the referral failed to meet the prior information duty.
93. Although subsequent internet research on 16 July gave general information regarding Skills Conditionality, it could not provide information regarding the specific course to which the Claimant had been referred. In her letter to the District Manager on 16 July, in the absence of any such information, she was forced to postulate (at paragraph 4) that: "the 'training' involved has, no doubt, already been covered under the Work Programme."
94. That letter also gave 14 days to identify the particular, alleged, skills need in the Claimant's case justifying referral, and to provide supporting documentary evidence. The District Manager's response, by letter dated 1 August, not only failed to identify any such need, it also signally failed to give any information whatsoever as to the contents of the 'Getting that Job' course.
95. All Jobcentre interviews after 16 July were subject to tape-recordings, and those recordings prove that at no time was the Claimant given the necessary information required by the prior information duty. Such information would, of course, have been entirely redundant as the decision to refer had already taken place.
96. On 9 August the Claimant was informed that she had been served with the wrong notice; i.e. that it was for the second, 2 week part of the course, rather than the initial 1 day assessment, and her participation was temporarily suspended. The fact that it was suspended, and not cancelled, was confirmed by the District Manager in his letter of 12 August: "You will still need to satisfy the conditions of entitlement of Jobseeker's Allowance as detailed on your Jobseeker's Agreement........ I have asked your advisor to pick up your referral to the course at your next appointment."
97. The suspension was confirmed on 5 September, when the advisor stated: "But what actually happened when Kate referred you, we referred you on an incorrect letter, so they've now given you the correct letter to refer you through to. So you are still required to go to TCAT, it was just that the actual letter that was issued you was an incorrect letter".
98. The suspension did not void the decision to refer, which remained in place until the Claimant had completed the second part of the course on November 29.
99. The 'Getting that Job' course was a two part course. The Defendant's PAP response, dated 4 September 2013, confirmed that the course consisted of an initial assessment followed by the course proper (final paragraph of first page). The Defendant's witness Ms Crellin, the Deputy Director with responsibility for Skills Conditionality cited, at paragraph 35 of her witness statement, §8 of the Skills Conditionality Toolkit: "Individuals are mandated first to the initial skills assessment by Jobcentre Plus and then mandated a second time to attend the provision" (Emphasis added).
100. There appears to have been a period where the course was unavailable, until 15 October when the advisor stated that the provider, TCAT, had "now become available, so we need to send you off on the 2 week course", and that the Claimant would be "booked onto a 2 hour initial assessment with them for the assess your needs from there, and then from there they will generally give you a start date for the course", and then went on to confirm that the course was mandatory: "we'll issue you the letter confirming that it's a mandatory course".
101. The 2 hour assessment took place on 30 October 2013. It consisted of computerised English and Maths questionnaires. The post assessment printouts from the college, headed "Initial Assessment Complete", gave grades of 3 and 2 but these were downgraded to 2 and 1 on the Defendant's system (Grade 3 equated with 'A' level and grade 2 with 'O' level).
102. It was not until 14 November 2013, four days before the second part of the course commenced, that the Claimant received the accurate information that would have been necessary to make informed representations. TCAT informed her, via e-mail, that the course consisted of Level 1 word processing, level 1 CV writing and level 1 developing personal confidence.
103. The Claimant had already obtained a higher level qualification in IT whilst on the Work Programme. Her CVs (a variety for different positions) had already been approved by professionals employed on the Work Programme for that specific purpose, and basic training in 'personal confidence' was entirely otiose.
104. The course information from TCAT was entirely redundant, as it was long after the decision to refer had been made, and would not have impacted that decision as referral was already pre-determined under the Defendant's PWPS policy.
105. (The only information ever imparted by the Jobcentre was both inaccurate and after the event. On 6 August the Claimant was told the course comprised "resilience training, employability skills, maths, English, and IT". The maths and English were actually the part-one literacy and numeracy assessment, and 'IT' lacked specificity, as did the rest of the description, particularly as there was no indication of levels.)
106. Following the initial 2 hour assessment, participants were required to complete forms. The forms contained a section for comments and the Claimant wrote, inter alia[4]: that:
"I was not volunteering to attend the ‘Getting That Job’ course, which I felt was entirely unnecessary and unsuitable for me; I had attended the WP and other provisions, which had covered all aspects of applying for vacancies, and I believed that the proposed course would be a needless repetition and, therefore, a waste of public funds. These were views echoed by other participants at the assessment."
107. The member of the college staff conducting the assessment, Ms Melanie Duncan, read those comments and agreed that the course was unsuitable for the Claimant, and said that she would recommend to the Claimant's advisor that a referral should not take place.
108. On 12 November the Claimant was served with a referral notice for part 2 of the course. The advisor asked if the college had explained about the two week course to follow, and the Claimant replied: "Melanie did ...... she said she was going to recommend to you that I wasn't ... put forward on to it [the course]".
109. Although, on 12 November, the Claimant still had no specific knowledge as to the contents of the course, the fact that the provider deemed it unsuitable for her was highly relevant and compelling. However, this representation was ignored. Referral was mandatory and neither the advisor, nor the provider, had the jurisdiction to refuse a placement.
110. On 15 November 2013 the Claimant asked the college:
"Did Ms Melanie Duncan comply with her undertaking, made on 30 October 2013, to contact my advisor at Telford JC Plus, for the purpose of informing her that the 'Getting That Job' course was unsuitable for me?"
On 18 November the college replied:
"In reply to the questions/requests you raised in your email which you wanted me to answer, I can confirm that Mel did indeed contact your advisor but was told that despite reservations about the suitability of the course you would still be required to attend."
111. The Defendant would have known, not least from Reilly, of his common law prior information duty. He would also have to have been fully aware that the PWPS policy, with mandatory referral to schemes under 17A of the 1995 Act, defied the Supreme Court and violated that duty. Accordingly, the Defendant's actions constituted malfeasance.
112. The chronology of events is as follows:
i. Following the interview, the Claimant returned home and established, from the internet, that Skills Conditionality training required an identified skills need to justify referral.
ii. The Claimant immediately wrote to the District Manager requiring him to identify the skills need in her case.
iii. The District Manager's response, in a letter dated 1 August 2013, failed to identify any skills need.
iv. On 30 July 2013 the Claimant attended an interview with her new advisor. That interview was tape recorded, as were all subsequent interviews. The advisor asked the Claimant what she had done whilst on the WP, and with which provider, as she had no information.
v. On 30 July 2013 the Claimant sent a Pre-Action Protocol (PAP) letter to the Defendant challenging her referral and requiring further information.
vi. On 6 August 2013 the Claimant asked her advisor to identify the alleged skills need in her case. The advisor was unable to provide an answer, but confirmed that participation on the scheme was mandatory for all WP leavers.
vii. On 9 August 2013 the Claimant received a telephone call from the Stafford office, stating that she had been served with the wrong notice and was no longer required to attend the 12 August 'Getting that Job' course.
viii. On 12 August 2013 the District Manager confirmed in writing that the referral was suspended.
ix. On 13 August the Defendant's PAP response was made, saying that he assumed the Claimant would no longer wish to proceed to a judicial review.
x. On 15 August 2013 the Claimant served another PAP providing, at the Defendant's request, her grounds of challenge.
xi. On 29 August 2013 the Claimant was told by an advisor that the scheme had been suspended.
xii. On 4 September 2013 the Claimant received the Defendant's PAP response.
xiii. On 5 September 2013 the Claimant's advisor served a referral notice, which the advisor then immediately cancelled when told the scheme was suspended.
xiv. On 13 September 2013 the Claimant filed judicial review proceedings.
xv. On 15 October 2013 the Claimant was served with a notice for the initial assessment on the 'Getting that Job' course, participation date 30 October 2013.
xvi. On 30 October 2013 the Claimant attended the assessment, and did two tests on a computer, in English and Maths. Following the assessment the Claimant gave her view, in writing, that she believed the course would merely repeat elements of the WP, and would not address her only handicaps to employment, namely her age and lack of recent work history. The provider agreed that the course was unsuitable, and said they would telephone the Jobcentre to inform them accordingly.
xvii. On 12 November 2013 the Claimant was served with a notice referring her to the 'Getting that Job' course, commencing on 18 November 2013. The Claimant informed the advisor that the provider had said the course was unsuitable for her, but this informed representation was ignored.
xviii. On 14 November 2013 the Claimant received an e-mail from the provider college, giving details of the course which was: Level 1 'Word', CV writing and Developing Personal Confidence. That information confirmed the view of both the college, and Claimant, that the course was unsuitable.
xix. On 18 November the Claimant received an e-mail from the college, confirming that they had contacted the Jobcentre to say the course was unsuitable for the Claimant, and had been told that this was irrelevant.
xx. From 18 November to 29 November 2013 inclusive, the Claimant participated in the 'Getting that Job' course.
113. At paragraph 83 of his judgement, Hickinbottom J found that the "nature and content of the course had been explained to the Claimant both in Jobcentre interviews and in the 1 August 2013 letter from the DWP". All Jobcentre interviews were recorded, proving that at no time was the Claimant provided with meaningful information regarding the 'nature and content' of the course, and the information eventually provided by TCAT was long after the decision to refer. The District Manager's letter of 1 August, despite being required to provide an identified skills need, with documentary evidence in support, merely constituted flannel about the ideology of the scheme.
114. Having wilfully ignored the evidence before him, the judge then created a further overtly false finding, namely that the Claimant made "informed representations about the appropriateness" of the 'Getting that Job' course, and that "those representations were made prior to the 12 November 2013 referral notice" (at paragraph 106(i) of his judgement).
115. In order to make informed representations one first needs to have the relevant information, and it was a matter of record, in the form of documents, transcripts and witness statements, that the Claimant was not informed of the course contents until 14 November 2013, when the provider supplied the information by e-mail.
116. The perverse finding that the Claimant made informed representations was then used to facilitate a further false finding, namely that those representations: "resulted in an appraisal to ensure that another type of course – to remedy defects in numeracy/literacy – was not more appropriate for her."
117. There were no representations, informed or otherwise. Nor was there any form of 'appraisal' outside Skills Conditionality. As the evidence before the judge proved irrefutably, the 'appraisal' was, in fact, the initial assessment under part one of the course. The Defendant's PAP response, flow chart, provider tool kit and witness statement all confirmed that the course consisted of an initial assessment followed by the course proper. That fact was further underlined by the advisor on 15 October, stating that the notice she was serving was for the: "two hour initial assessment........ and then from there they will generally give you a start date for the course which will generally then start a couple of weeks later on a Monday."[5]
118. Confronted with that weight of evidence, no judge could have found, honestly, that the Claimant had been especially referred to an assessment, to see if she was illiterate, as a result of some non-existent representations.
119. At paragraph 79 of his judgement, Hickinbottom J found that the "effective" date was 12 November 2013, long after the actual decision of 16 July, and after the Claimant had actually completed the first part of the course on 30 October 2013. The finding is wholly irrational, in that an effective decision date could not be after the course to which it related had commenced. The judge would have known with certainty, from the evidence before him, that his finding could not be true.
120. Hickinbottom J then proceeded to find that the Claimant was told, on 12 November 2013, that she was an "appropriate subject for the course" (paragraph 60 of his judgement). This is an astonishingly perverse finding, in that it blatantly inverts the truth. The relevant transcript proves, not only that no such comment was ever made, but that the Claimant imparts, to the advisor, the college's view that she should not be put on the course proper:[6] That representation was, of course, totally ignored.
121. (Even if the advisor had not been personally contacted by TCAT, she could and should have verified the Claimant's statement at that point, by telephoning the college.)
122. The e-mails between TCAT and the Claimant, confirming that the course was unsuitable and Telford Jobcentre had been so informed, constituted key evidence, the existence of which was entirely suppressed in the judgement. That evidence was gone through thoroughly, and thus the judge would have been fully aware of its existence, and that its suppression made a material difference.
123. Instead, at paragraph 59, Hickinbottom J refers to the Claimant's 3rd witness statement, made before the college's e-mail came into existence.[7] He signally ignores the later one, which confirmed the existence of the suppressed e-mails:[8]
"As described in my third witness statement at paragraph 3, the college had stated on 30 October that the course was unsuitable for me, and that it would communicate this to my advisor and recommend that I should not be referred to it. The college confirmed by e-mail on 18 November that this communication had been made. In spite of this my advisor referred me on 12 November. In addition, the fact that the course was unsuitable for me was not recorded on the Defendant’s computer system."
124. The judge's behaviour on this point indicates deliberate intent. The suppression of key evidence in the form of e-mails, and witness statement confirming them, allowed him to make the false finding that the Claimant was an "appropriate subject for the course" .
125. The judge's findings on the issue were beyond perverse, relying on a systematic manipulation of the facts and suppression of evidence. Firstly, he ignored the actual date of the decision requiring the Claimant to participate in Skills Conditionality training, and instead treated the November 12 referral, to the second part of the course, as the date of the decision. This then allowed him to create a window of opportunity to make further false findings. He found that the Claimant knew the contents of the course; that she made informed representations about the course prior to 12 November 2013; that she was then placed on an assessment as a result of those representations, and as a result of that assessment was told that she was an appropriate subject for the course. The judge had to know, absolutely, from the evidence before him that his findings could not be true.
126. At paragraph 106 of his judgement, Hickinbottom J proceeded to give three reasons purporting to show why the common law, prior information duty, did not extend to the Claimant. These are that: (i) the Claimant was long term unemployed; (ii) she could have taken it upon herself to obtain the information and, (iii) there was some other, alternative, reason for her referral. (The latter point relates to the matter of the WP exit profile and will be dealt with below.)
127. With regard to the first reason: the common law duty to provide information prior to a decision, and the concomitant right to make informed representations before a decision, is not extinguished by the passage of time for the long term unemployed. That is trite-law. In Reilly, Mr Wilson was described by the Court of Appeal as "very long term unemployed".[9] On the date the Supreme Court handed down their decision, 30 October 2013, he had been unemployed for 5 years. There was, of course, no suggestion from either court that the length of his unemployment somehow disqualified him from the right to make informed representations. The judge's finding on this point was discriminatory and demonstrated extraordinary bias.
128. With regard to the second reason, namely that the Claimant could have found out, for herself, of what the course consisted. That was a proposition entirely without merit, as it sought to place the onus on the individual, to attempt to obtain the very information which the common law duty requires the public authority to provide. As such, it constituted an attempt, on the part of the judge, to extinguish that common law duty, and also defied decisions by the appellate courts e.g. the Court of Appeal in Hewstone, when citing Reilly:
13. "......... The Secretary of State was under a common law duty as a matter of fairness .......... to ensure that claimants had access to sufficient information about any scheme in which they might be required to participate before such a requirement was made, so that they were enabled to make representations about its suitability." (Emphasis added.)
129. The failure to meet the prior information duty meant that the Claimant was compelled to participate, under the threat of loss of her means of support, in a course which was unsuitable and which, consequently, could not have assisted her to obtain employment, as required under §17A of the 1995 Act.
130. The findings of Hickinbottom J on this point were in direct conflict with both the Supreme Court and common law, and as such were wholly unsustainable in law. In those circumstances, the refusal of permission by the Court of Appeal, and the finding of the application to be entirely without merit, were impossible to justify, and proved that the application was not judged on its merits.
THE WORK PROGRAMME EXIT PROFILE:
131. The Defendant's press release of 3 June 2013 imposed a requirement, under his PWPS policy, for an exit profile of all those who completed the WP scheme:
"Claimants will be given an end-of-term report from their Work Programme provider assessing what progress they have made and their ongoing needs, to inform their new adviser before facing the toughest Jobcentre regime to help them find work."
132. This requirement was also identified in the Work Programme Provider Guidance at Chapter 10.51:
"Jobcentre Plus Advisers will use the Exit Reports you produce to build a profile of the participant following their 2 year long experience outside Jobcentre Plus on the Work Programme."
And at Chapter 10.62 of the Guidance:
"Participants should be provided with a copy of their Exit Report where you are in face to face contact with the participant or you must let participants know that they are entitled to a copy of the Exit Report on request."
133. The Claimant's review took place on 28 May 2013. This was some four weeks before she completed the course on 1 July 2013, as the WP advisor would be absent at that time.[10] This was a face-to-face interview, following which both the WP advisor and Claimant signed the document, to confirm that they agreed with its conclusions.
134. During her time on the WP the Claimant had fortnightly interviews, which looked at her job searching activities during the preceding two weeks. The Claimant searched the internet at home, then entered all the job applications she made onto a Word chart she had created, which she then printed off for each fortnightly interview. Those records remain in existence.
135. The end of term report, compiled by a WP advisor acknowledged by Hickinbottom J to be "experienced" stated:
“Motivated and able to apply for jobs – has updated cv and good letters to go with it, applies for around 15 approx jobs each week. Wants admin - only the length of time since last employment is going against her. Has taken part in supergreen sessions. Lives with her husband private rental no children. Has done everything she has been asked of in terms of applications and jobsearch had some interviews but no offers yet. Customer has registered with universal job match but has not given dwp to have permission to look at her account. Customer had several interviews in the last few months. Customer feels that her interviews go well but people with more relevant experience get the roles.”
136. In addition to the body of text, there were several boxes, and the Jobsearch Activities box of the report stated: "need". That unspecified need had to conform to the body of script giving the provider's views, and that script itself identified that the Claimant was experiencing a disadvantage due to her lack of a recent work history. The report's conclusion was clear: the Claimant had no difficulty in finding and applying for jobs in administration, but she did have a difficulty arising from her lack of a recent work history. That lacuna would apply to all WP leavers, and was not something which could be addressed by the training course in question.
137. Proceedings for judicial review were issued on 24 September 2013 and the Defendant filed his defence on 22 October 2013. On 4 November 2013 the Claimant served a second witness statement, wherein she disclosed that she had tape-recorded all interviews with her Jobcentre advisor after completion of the WP, with the exception of the first interview on 16 July 2013[11].
138. The Defendant then responded by filing an amended defence, on 20 December 2013, in which he claimed that the reason why the Claimant had been placed on the Skills Conditionality course was because she was unable to look for work unaided. In his later detailed grounds of resistance,[12] he then claimed that the Claimant was told this on 16 July 2013.
139. The Defendant subsequently sought to support his allegation with a document annexed to the witness statement of Ms Pauline Crellin, which he claimed was the WP exit report. The statement and documents annexed thereto were served on 1 May 2015.
140. The document in question, which the Claimant had never seen before, did not match the original in the possession of the Claimant. The original document was an agreed profile, issued in compliance with the Provider Guidance. The body of text in the original had been altered in the second document, by the removal of the key information that the Claimant was motivated, able to, and did apply for around 15 jobs per week in administration. The text now read:
"Customer has completed work programme, completed CV, Cover letter, interview techniques and motivation modules. Custmer (sic) has registered with universal job match and uses as part of her job search. Customer has had several interviews, customer fels (sic) that the lack of recent work history is holding her back from gaining employment."
Under the "next steps" section, the statement "Customer does not liked (sic) to be pushed" had been written.
141. Unlike the original, the fraudulent document had a series of statements, with a box alongside each for yes/no to be entered. Alongside the statement: "Capable of independently job searching using methods relevant in [her] chosen field", the Defendant had entered the word 'No'. That statement was clearly false, as it directly contradicted the text in the authentic document. In order to make the false statement, it had been necessary to excise: “Motivated and able to apply for jobs – has updated CV and good letters to go with it, applies for around 15 approx jobs each week".
142. The document was also on a different template and, although it purported to come from the WP advisor who had signed the authentic document, it was unsigned and the name was misspelt.
143. There had never been any suggestion that the Claimant was incapable of independent job searching prior to 20 December 2013.
144. The Claimant's contemporaneous 1st witness statement, at paragraphs 9-11, shows that she was told, on 16 July 2013, that she was being referred to skills conditionality training, that the programme was mandatory for all WP leavers, and that the advisor had no discretion. At paragraph 9, the Claimant stated that: "there was no discussion as to whether it would be appropriate for my personal situation." The witness statement also confirms that no record was made of the Claimant's views, due to the mandatory nature of the referral. The witness statement was made and served long before the Defendant's false allegation first arose.
145. Immediately after the interview of 16 July, the Claimant wrote to the District Manager requiring him to identify the alleged skills need in her case, and to provide documentary proof. In his reply, the District Manager signally failed to identify any skills need. (Had there been any allegation that the Claimant was incapable of looking for work, her letter would not have been asking for information, but warning of an action for defamation.)
146. The tape recording transcript for 30 July shows the new advisor asking the Claimant with whom she had been placed on the WP, what she had been doing, and whether she was registered on the Universal Jobmatch site. Again, there is no mention of any alleged inability to look for work unaided.
147. On August 6 the Claimant specifically asked her advisor to identify the alleged skills need justifying referral. The advisor was unable to identify any skills need, but did confirm that the referral was mandatory for the Claimant and all other WP leavers. [13]
148. The Defendant served 2 PAP responses, the second one, dated 4 September 2013, being a detailed refutation of the Claimant's grounds. Again, neither of these responses claimed that the Claimant was incapable of looking for work unaided.
149. The Claimant ceased claiming benefit in January 2014. In June 2014 she filed a Subject Access Request. That request resulted in a print-out of all information held on the Claimant by the DWP. That print-out did not contain the document filed with the court purporting to be the WP exit report, nor any reference to any alleged skills need.
150. The bogus exit profile constituted fraudulent evidence, manufactured after the commencement of legal proceedings, for the purpose of perverting the course of justice by seeking to retrospectively justify the Claimant's referral to Skills Conditionality, by inventing a skills need which was untrue and never existed. The purpose was to conceal the fact that the Claimant had been referred unlawfully under the PWPS policy, and that purpose was achieved successfully.
151. The fact that the Defendant found it necessary to engage in such activity demonstrated an awareness, on his part, that his PWPS policy was unlawful.
152. This was a matter of the utmost gravity, and the Claimant requested that it be referred to the police for investigation. Far from acceding to the Claimant's request, Hickinbottom J instead accepted the result of the Defendant's criminality.
153. His judgement suppresses the fact that the Claimant had: (a) identified the document in question as fraudulent, and (b) requested a criminal investigation.
154. Instead, he sought to legitimise the fraudulent evidence by finding that it, and not the authentic document, was the 'exit report' (paragraphs 45-46 and 112 of his judgement). The authentic document is clearly the Personal Profile, created in compliance with both the Defendant's PWPS policy and Provider Guidance, presented to the Claimant in compliance with the Guidance and signed by both parties as per the Guidance. The fact that the Defendant called the exit profile an 'end-of-term report' in his press release and 'exit report' in his guidance is immaterial. They are different names for the same thing.
155. At paragraphs 46-47 Hickinbottom J goes further, ascribing both the authentic and fraudulent documents to the Claimant's WP advisor, Ms Cathryn Collins. Such a finding required that the WP advisor first produced the original document, then, four weeks later, secretly concocted a second version, in which she excised the fact that the Claimant was 'motivated', able to, and applying for, around 15 jobs per week, replacing that fact with the falsehood that the Claimant was unable to look for work unaided, despite the advisor knowing that the Claimant retained on her computer all her job searching records. Then, finally, the advisor was apparently unable to either sign or correctly spell her own name.
156. Paragraph 2 of the Claimant's affidavit confirms that the 'exit profile' interview took place early, on 28 May, due to the fact that the advisor was to be absent at the end date of 1 July. Consequently, not only did the advisor concoct a second, secret, profile wherein she was unable to spell her own name, she did so whilst she was not present.
157. Paragraphs 3-5 of the Claimant's contemporaneous 1st witness statement confirm that the 'Personal Profile' was presented to her as an "in-depth assessment undertaken with the Work Programme advisor" under the Defendant's PWPS policy requirement for an end-of-term report.
158. At paragraph 49 of his judgement Hickinbottom J found that on both 16 July 2013 and 30 July 2013 "the adviser discussed the Exit Report". Taking these in order: there was no discussion, of any sort, on 16 July regarding the Claimant's personal situation, as at paragraph 9 of the Claimant's first witness statement (see also paragraph 8 of her affidavit).
159. There is also the collateral evidence in the Claimant's demand that the District Manager identify, within 14 days, the alleged skills need justifying her referral along with documentary evidence. The District Manager's failure to provide the required information confirmed that there was no justification or evidence for the referral. This further underlines the non-existence at that time of the fraudulent document.
160. The Defendant sought to rely on the witness statement of Ms Pauline Crellin, Deputy Director of Skills Conditionality[14]. Ms Crellin was not present at the interview of 16 July; had nothing to do with Telford Jobcentre; had no personal knowledge of what took place at the meeting, and was not subjected to examination. Her statement was made almost 2 years after the event, and was made for the purpose of misrepresentation, by seeking to retrospectively validate the Defendant's unlawful policy. The Defendant chose not to file a statement from the advisor who actually conducted the interview. Ms Crellin's statement was directly contradicted by the witness statement of the Claimant, who was present at the meeting.
161. At paragraph 49 Hickinbottom found that the fraudulent document had been discussed again on 30 July. That interview was recorded. The transcript proves that there was no information whatsoever relating to the WP on the Claimant's file. The advisor asks: "Who have you been with, was it County Training, while you've been on the work programme?", and then after being told it was Shaw Trust: "What was Shaw Trust doing with you?". She then asks if the Claimant is registered on Universal Jobmatch.[15]
162. The judge converted a request for information, by the advisor, into a finding that the fraudulent exit report and false allegation were discussed. This underlined the extent of bias in the judge's mind - even when presented with uncontested tape-recordings, he simply created an entirely false version of events, favouring the Defendant.
163. The relevant transcript for August 6 shows that the advisor confirmed that referral was mandatory for all WP leavers, and there was no identified skills need in the Claimant's case. [16]
164. During the hearing, the Defendant admitted that the suggestion that the Claimant was incapable of independently job searching was untenable. This admission is suppressed in the judgement.[17]
165. At paragraphs 106(ii) and 112 Hickinbottom J then went further, finding that both the authentic and fraudulent documents said the same thing, in that the Claimant had: "been identified, in both her last review and Exit Report, as someone who had a skill need in respect of the capability of independently job searching".
166. If such an inability had actually been identified, and the two documents did indeed say the same thing, then it must follow that the phrase in the authentic document: “Motivated and able to apply for jobs, applies for around 15 approx jobs each week", would have to mean an inability to seek work unaided. Logically, semantically and linguistically that is a fatuous conclusion. It was impossible to reconcile two such irreconcilable statements, and to even attempt to do so demonstrated an irredeemably corrupt mindset.
167. Moreover, the authentic Personal Profile, accepted by Hickinbottom J as genuine, clearly laid out the advisor's view of the Claimant's job searching activities, after nearly 2 years on the WP. The fact that the contents of the bogus document are irreconcilable with the genuine one is proof, in itself, that (a): the advisor did not create it and (b); its a fake.
168. By validating evidence which was clearly fraudulent, and then finding that it constituted "sufficient legal justification for requiring [the Claimant] to participate in the Getting that Job course" (paragraph 112), the judge effectively became a party to the Defendant's criminal actions.
[1] First witness statement of 10 September 2013 at paragraphs 9-11.
[2] At paragraph 6.
[3] At paragraph 23 of the Defendant's statement in response to the Report by the Social Security Advisory Committee of March 2011. ISBN 9780101805827
[4] Claimant's 3rd witness statement dated 17 November 2013 at paragraphs 2-3.
[5] Page 38 of transcript bundle, near top.
[6] Page 50 of transcript bundle.
[7] Paragraph 3 of the Claimant's 3rd witness statement, dated 17 November 2013.
[8] Paragraph 4 of 4th Witness statement, dated 1 December 2013.
[9] Reilly & Wilson v Secretary of State for Work & Pensions [2013] EWCA 66, paragraphs 21-22
[10] See Claimant's affidavit at paragraph 2.
[11] At paragraph 15 of 2nd WS
[12] At paragraphs 4-5 and 63
[13] Page 6 of transcript.
[14] At paragraph 44 of her witness statement.
[15] Pages 1-2 of transcript.
[16] Page 6 of transcript.
[17] Claimant's affidavit at paragraph 9.
6: Refusal of permission to appeal by Hickinbottom J:
169. An application was made to Hickinbottom J for permission to appeal, setting out relevant grounds. Inter alia, they furnished the relevant extract from Reilly, confirming that the referral notice served on Mr Wilson did not meet the statutory requirement, despite him having been given full information, verbally, regarding the hours and nature of the activity - judgement of Foskett J in Reilly & Wilson v SSWP [2012] EWHC 2292 (Admin.):
112: “At this meeting he was told that he had to have a “Welcome Induction” with the programme provider, Ingeus. He attended that meeting a week later and was told that his placement would begin on 28 November 2011 and that he was being sent to an organisation that collects disused furniture, renovates it and distributes it to needy people in the local community. These details were never set out in writing, he said. He was told that he would be required to work for 30 hours per week for 26 weeks or until he found employment of 16 hours per week or more."
In response, the judge simply repeated his earlier finding, in defiance of the Supreme Court, that being told the hours, by an advisor, was sufficient to meet the statutory requirement and for that reason the Ground "particularly lacks merit".
170. The refusal of permission then simply referred back to his judgement, citing the discredited paragraphs 75 and 97, and then repeated his falsehood that the Claimant "conceded" that more than two does not mean three, when the Claimant had actually stated that, for the purposes of enforcement under Regulation 18, more than two does mean three.
7: Refusal of permission to appeal by Court of Appeal:
171. The judgement in question was the product of systematic bias of a most calculated nature. It included: suppression of evidence; invention of non-existent 'facts'; manipulation of dates to allow false findings; suppression of evidence for the purpose of concealment of false findings, and findings that it was irrelevant whether, or not, a public authority acted unlawfully. The judge also flagrantly defied decisions by the Supreme Court by which he was bound.
172. The judge's behaviour was disgraceful and constituted a concatenation of dishonesty. Whatever the motivation behind it, it ensured that the Defendant was protected from proper scrutiny of his behaviour..
173. However, even without the question of an unfair hearing there were sufficient grounds to justify an appeal. The most cursory reading of the application for permission to appeal would have disclosed reasonable grounds, in that:
i. The judgement of Hickinbottom J gave rise to conflicting judgements at the same level, which is sufficient grounds for an appeal.
ii. The judge repeatedly failed to be bound by the judgements of higher courts, which is sufficient grounds for an appeal.
iii. The judge made findings which were not supported by any evidence, which is sufficient grounds for an appeal.
iv. The judge made findings which were directly contradicted by the evidence before him, which is sufficient grounds for an appeal.
Those four grounds, combined with the denial of a fair hearing, made the refusal of permission even more outrageous.
174. The refusal of permission by the Court of Appeal was headed "Refused, as being totally without merit and the applicant may not request the decision to be reconsidered at an oral hearing". It gave five reasons.
175. The first reason was that "Regulation 3(7) of the SAPOE Regulations is not arguably ultra vires. Sufficient detail is provided for it to comply with the requirement for legal certainty". The Court of Appeal in Smith found that the regulations must identify the specific character of any scheme under the regulations, e.g. training, work related activity etc..[1] The Skills Conditionality scheme was defined as "training or other activity", which encompasses any activity and excludes none. Whether, or not, such an all-purpose description met the requirement for legal certainty was not an issue which could be dealt with on the papers and certainly not something which could be disposed of as being "totally without merit".
176. At reason 2 the refusal finds that the SC04 notice served under 5(2)(c) of the SAPOE regulations met the statutory requirement. It did not. It did not have the necessary information regarding the hours and nature of activity required under the regulations. The issue was precisely the same as in Reilly, and had already been determined by the Supreme Court. The Court of Appeal did not have the jurisdiction to overturn a Supreme Court decision. Whilst the phrasing of reason 2: "I see no basis for concluding that the SC04 notice was non-compliant with Regulation 5" may constitute circumlocution to the point of evasiveness, its construct is clear - it is a finding that the notice contained the very information which is clearly absent.
177. The third reason is that the ground relating to the unlawful increase in conditionality "cannot succeed for the reasons set out at paragraphs 87-100 of Hickinbottom J's judgement." This issue is covered fully at paragraphs 17-76 supra. Essentially, Hickinbottom J found that it was irrelevant whether, or not, the Defendant acted unlawfully, relied on biassed / specious reasoning to support that contention and, at paragraph 98, invented a dishonest "complete answer to the claim". The judge also disagreed with the Upper Tribunal / Commissioner decisions, finding that the law allowed the Defendant to set whatever level of conditionality he chose. He then contradicted himself, by finding that the Claimant's statement when appealing against the sanction imposed: "A JSAg must comply with the relevant statutory regulations. A JSAg cannot enforce a level of conditionality beyond that in the said regulations", would have resulted in a 3 step JSAg.[2] The refusal of permission is, effectively, that because the judge says its so, it is so and cannot be challenged. That is not a legitimate basis for denying permission where the judge in question has demonstrated bias.
178. In her ground, the Claimant relied on decisions by the Upper Tribunal / Commissioner, which are at the same level as the High Court. An appeal must be allowed where there are conflicting judgements at the same level. The dismissal of the ground, on the basis that it was "totally lacking in merit" displays an extraordinarily arrogant and dismissive attitude towards the Upper Tribunal / Commissioner by the Court of Appeal.
179. The fourth reason relates to the PWPS scheme, and found that Hickinbottom J was entitled to make the findings he did. A précis of biased / perverse findings and suppression of evidence in relation to the PWPS follows. Hickinbottom J:
i. Found Regulation 18 provided sub-delegated powers allowing advisors to set their own definitions of conditionality.
ii. Found Regulation 18 did not need to conform to requirement for legal certainty, as in Blackpool Corporation v Locker.
iii. Found the weekly jobsearching regime under Regulation 18 could be converted into a daily regime by utilisation of Regulations 23 and 24, which merely relate to appointments.
iv. Proposed the legally untenable proposition that one part of statutory regulations can be used to subvert another part.
v. Found that Regulation 18 allows for any number of steps in a JSAg, then found that an assertion that a JSAg could not provide for a level of conditionality beyond that in Regulation 18 would have resulted in a 3 step JSAg.
vi. Falsely found that the Claimant had conceded that, with regard to Regulation 18, more than two steps did not mean three steps.
vii. Suppressed the Claimant's statement that, for the purposes of enforcement and sanctioning, the figure under Regulation 18 is 3 steps.
viii. Introduced the completely irrelevant excuse that a substantial number of the weekly steps was not onerous.
ix. Falsely found that such job searching activity would take only "a matter of minutes".
x. Found it immaterial in law if the Defendant had acted unlawfully with regard to conditionality.
xi. Falsely found that the Claimant would not be sanctioned for non-compliance with increased conditionality.
xii. Ignored the Claimant's evidence that half a million claimants had been sanctioned for non-compliance with the increased conditionality regime.
xiii. Ignored the fact that the Claimant had been reported for sanction for non-compliance with the increased conditionality.
xiv. Found that the ability to challenge a JSAg robbed the threat of sanction of any force.
xv. Found that the Regulation 31 statement, threatening loss of benefit for any doubt or disagreement, clearly identified a right to appeal without penalty.
xvi. Proposed the legally untenable proposition that it is irrelevant in law if a public authority acts unlawfully, as each victim could mount his / her own legal challenge
xvii. Made findings, re compulsory registration on the Defendant's Universal Jobmatch website, having prevented the Claimant from making submissions on the point.
xviii. Defied an Order from the Court of Appeal giving permission for the Claimant to argue all PWPS measures, including compulsory registration on the Defendant's Universal Jobmatch website.
xix. Found that the Defendant had a legal right to circumvent the EU privacy directive re cookies by utilising a Jobseeker's direction.
xx. Found that one of two 'complete answers' to the claim was finding that the Claimant had not experienced any significant level of suffering or misery.
xxi. Introduced an entirely irrelevant consideration favouring the Defendant.
xxii. Suppressed evidence showing that there was distress.
xxiii. Invented a second 'complete answer', namely that a three step JSAg was to be issued by a decision maker, which was both untrue and ignored the fact that the decision maker's supervisor had said the decision was wrong.
xxiv. Invented two 'complete answers' to the claim which answered none of the claim.
xxv. Suppressed the fact that participation in Skills Conditionality was mandatory as proven by the PWPS press release.
xxvi. Suppressed Defendant's flow chart showing referral to Skills Conditionality was mandatory.
xxvii. Suppressed Provider guidance showing referral to Skills Conditionality was mandatory - provider had no choice.
xxviii. Suppressed transcript of 6 August 2013 wherein advisor states that the SC course is mandatory.
xxix. Found that a selection process existed, with youths being filtered out, when there were no youths on the WP.
xxx. Cited paragraph 8 of the witness statement of P Crellin, despite knowing it misrepresented facts - the witness having replaced the phrase 'lack of relevant experience' in the Employer Skills Survey 2011 Report with 'lack of work history' in an attempt to justify the Claimant's referral to SC.
xxxi. Made the irrational and entirely subjective finding that all participants would have obtained some benefit from the SC course, when the issue was one of lawfulness.
xxxii. Dismissed the issue of the unlawfulness of the PWPS policy by reference to a list of regulations, without analysis of why the policy was, allegedly, intra vires the legislation.
xxxiii. Found that the fully established prior information duty, as expounded in Reilly et al, was extinguished for the Claimant because she was long term unemployed.
xxxiv. Subverted Supreme Court and Court of Appeal decisions to make such a finding.
xxxv. Ignored the fact that Mr Wilson, in Reilly, was very long term unemployed - irrelevant to his right to prior information.
xxxvi. Found that it was for the Claimant to obtain information about the SC course, rather than for the Defendant to ensure it was provided.
xxxvii. Subverted Supreme Court and Court of Appeal decisions to make such a finding.
xxxviii. Found, falsely, that the nature and content of course had been explained in interviews and District Manager's letter.
xxxix. Ignored a witness statement saying the contrary.
xl. Invented a false interpretation of the District Manager's letter, which was inconsistent with its contents.
xli. Found, falsely, that the "effective" date of referral to the SC course was 12 November 2013.
xlii. Ignored contents of the JSAg of 16 July which stated "I will attend course" etc, which confirmed referral had taken place on that date.
xliii. Ignored Claimant's witness statement confirming that she had been referred on 16 July.
xliv. Ignored contents of letter from District Manager confirming wrong letter had been served and stating that he had "asked your advisor to pick up your referral".
xlv. Ignored transcript of 5 September, wherein advisor confirms: "So you are still required to go to TCAT, it was just that the actual letter that was issued you was an incorrect letter".
xlvi. Ignored fact that District Manager's letter was in response to requirement that he identify specific, alleged, skills need in the Claimant's case.
xlvii. Ignored the fact that the District Manager was unable to identify any such alleged skills need.
xlviii. Ignored the fact that neither PAP responses identified any alleged skills need.
xlix. Ignored the fact that the Subject Access Request printout proved that no allegation of a skills need had ever existed on the Claimant's file.
l. Found, falsely, that the Claimant had made informed representations prior to the 12 November notice.
li. Suppressed the existence of an e-mail from the college giving correct course information.
lii. Suppressed the fact that the e-mail was dated 14 November, 2 days after the final referral Notice.
liii. Found, falsely, that the two part 'Getting that Job' course consisted only of the second part.
liv. Utilised that dishonest finding to enable a second dishonest finding, namely that the first part of the course was a special assessment to which the Claimant was referred due to questions over her literacy.
lv. Suppressed evidence in the form of the notice of 15 October, which clearly identified it was for part one of the two part course.
lvi. Dishonestly found that the Claimant had been specifically identified as an appropriate subject for course.
lvii. Suppressed the existence of e-mails from the college, confirming that they considered the course unsuitable for the Claimant and had advised Telford Jobcentre of that fact.
lviii. Suppressed evidence in the form of the Claimant's third witness statement, stating that her unsuitability had been confirmed by the college in an e-mail.
lix. Suppressed the transcript of 12 November, wherein the Claimant informed the advisor of the college's view, before the advisor served the referral notice.
lx. Suppressed the fact that the e-mails had been thoroughly covered in the Claimant's oral submissions.
lxi. Dishonestly converted the authentic WP Exit Report into a separate Personal Profile.
lxii. Found the fraudulent document to be the genuine Exit Report.
lxiii. Found that the fraudulent document was by the same author as the genuine document, despite being unsigned and with the name misspelt.
lxiv. Found that the statement, in the authentic Exit Report: motivated and able to apply for jobs, was the same as: not capable of independently job searching, in the fraudulent document.
lxv. Found that the false allegation that the Claimant was incapable of looking for work had been discussed on 16 July 2013.
lxvi. Ignored the Claimant's witness statements showing no such allegation had been made.
lxvii. Ignored collateral evidence confirming no such allegation had been made.
lxviii. Accepted the witness statement of Ms P Crellin, that such an allegation had been made, when Ms Crellin had not been present and was not put in the witness box.
lxvix. Found, falsely, that the allegation had been repeated on 30 July by the Claimant's advisor, contrary to the evidence before him in the form of transcripts.
lxx. Dishonestly converted the advisor's request for information on that date, with regard to what activities the Claimant had undertaken and with whom, into an allegation that she was incapable of looking for work unaided.
lxxi. Suppressed admission by the Defendant, that the allegation the Claimant was incapable of independently job searching, was untenable.
lxxii. Ignored the fact that the Claimant's Subject Access Report proved that the fraudulent document had never been on her files.
180. One perverse finding may be an accident, two a coincidence. Three establishes a pattern of bias. Seventy two proves bias to the extent of corruption. The refusal of permission finds that Hickinbottom J was "entitled to make" the perverse findings which corrupted the judicial process, and thus there was "no arguable error of law". There are no circumstances where a judge is free to make biassed findings and to corrupt the judicial process. The fact that the Court of Appeal choose to dismiss a challenge to such unlawful behaviour as being "totally without merit" calls into question the integrity and function of the Court of Appeal
181. Reason 5 dismisses the "assertions of unfairness" as having no substance. The catalogue of bias regarding the PWPS policy was simply one part of a transparently corrupt judicial process. The fact that it is considered, by the Court of Appeal, that this does not constitute unfairness is a shocking indictment of its insight, impartiality and integrity.
182. One final point regarding reason 5: The claim was for judicial review, seeking declarations regarding the lawfulness, or otherwise, of the Defendant's actions. It is precisely for that reason that Hickinbottom J was required to make "wider ranging findings" than merely those applying solely to the Claimant. That is the purpose of a judicial review. The refusal of permission on the basis that Hickinbottom J was not required to consider policy matters was wrong in law.
183. The issue was that the Defendant had embarked on a policy, without public announcement or scrutiny, of finding ways of driving up sanctions artificially, to create 'off-flow'. The PWPS measures were just one part of that general policy. This policy was identified by the Child Poverty Action Group report "Explaining the rise and fall of JSA and ESA sanctions 2010-2016",[3] under the section headed Implications (page 12-13):
The great sanctions drive from May 2010 onwards has constituted a major economic and social policy experiment. While most DWP initiatives are routinely evaluated, there is no sign of an evaluation of the sanctions drive. The House of Commons Work and Pensions Committee (2015) has already commented on the lack of empirical basis for sanctions policy, and called for a comprehensive review. The damage done by sanctions has been extensively documented, particularly by the voluntary sector. It is clearly essential that DWP should now say what they thought they were going to achieve by making the referral and decision-making processes harsher towards claimants, and what they think the consequences of the half decade of escalated sanctions have been. This is all the more important given the proposed extension of sanctions under Universal Credit to an estimated additional 1.3m claimants who are in low paid or part time work.
It is clear that the Work Programme was set up in such a way as to maximise sanctions, by generating a sanction referral in the case of any breach of requirements, however innocent, and then placing the onus on the claimant to show why they should not be sanctioned. This is a reversal of the basic principle of the criminal justice system that it is for the state to prove its case, not for the defendant to prove their innocence. It also structures in an assumption that claimants are not doing their best to get a job, which even advocates of sanctions accept is rarely the case.
Finally, the fact that DWP ministers could drive up sanctions and drive them down again on the scale shown here, without any public announcement or coherent statement about what they were doing, highlights the lack of accountability in the sanctions system. The system has many problems, which have been discussed exhaustively elsewhere, but one key issue is clearly the need to remove both the referral and the decision process from ministerial control.
184. The dishonest behaviour of Hickinbottom J was so egregious in its systematic nature as to amount to corruption. That corruption was continued into his refusal of permission, and then taken up by the Court of Appeal.
Jane Smith
[1] Smith v Secretary of State for Work & Pensions [2015] EWCA Civ 229, at paragraph 25.
[2] Paragraph 98 of judgement of Hickinbottom J
[3] http://www.cpag.org.uk/david-webster
Follow-up actions:
Following refusal of permission, a Formal Complaint was served on the Lord Chancellor, who refused to take any action. .
A Formal Complaint was then filed with the Judicial Conduct and Investigations Office. That office also refused to investigate.
A Formal Complaint was then filed with the Prime Minister, Theresa May. That complaint was referred to the Minister of Justice, where is was ignored, eliciting no response and no investigation.
Affidavit of Claimant - pages 1 & 2:
Transcript of tape-recordings.