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IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT



Mr Tom Hickman (instructed by Public Interest Lawyers) for the Claimants Mr James Eadie QC & Ms Amy Rogers (instructed by the Treasury Solicitor) for the Defendant Hearing dates: 17th & 18th June 2014 ____________________

Mrs Justice Lang

History

a) the 2011 Regulations were ultra vires, because they did not include a prescribed description of the schemes as required by section 17A Jobseekers Act 1995; and b) the notification requirements in reg. 4(2)(c) and (e) of the 2011 Regulations had not been met (in Ms Reilly's case because she received no written notification and in Mr Wilson' case because the standard-form letter was defective). In consequence, there was no valid requirement to participate in the schemes and no valid sanction could have been imposed.

Submissions

The statutory scheme

Jobseekers Act 1995

"Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment." (emphasis added)

Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 ("the 2011 Regulations")

"the Employment, Skills and Enterprise Scheme" means a scheme within section 17A (schemes for assisting persons to obtain employment: "work for your benefit" schemes etc.) of the Act known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to assist claimants to obtain employment or self-employment, and which may include for any [sic] individual work-related activity (including work experience or job search)."

"Requirement to participate and notification

(1) Subject to regulation 5, a claimant ("C") selected under regulation 3 is required to participate in the Scheme where the Secretary of State gives C a notice in writing complying with paragraph (2).

(2) The notice must specify

(a) that C is required to participate in the Scheme;

(b) the day on which C's participation will start;

(c) details of what C is required to do by way of participation in the Scheme;

(d) that the requirement to participate in the Scheme will continue until C is given notice by the Secretary of State that C's participation is no longer required, or C's award of jobseeker's allowance terminates, whichever is the earlier;

(e) information about the consequences of failing to participate in the Scheme."

a) The sector-based work academy ("sbwa") scheme, which is intended to provide a short period of unpaid work for those most likely to be able to obtain employment. b) The Community Action Programme ("CAP") which provides an extended 26-week placement for the long-term unemployed. c) The Work Programme which is a 2 year work programme for the longer-term unemployed, delivered by contracted providers.

Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 ("the 2013 Regulations")

"3. Schemes for Assisting Persons to Obtain Employment

(1) The schemes described in the following paragraphs are prescribed for the purposes of section 17A(1) (schemes for assisting persons to obtain employment: "work for your benefit" schemes etc) of the Act.

(2) Day One Support for Young People is a scheme comprising up to 30 hours per week in a work placement for the benefit of the community and up to 10 hours per week of supported work search over a period of 13 weeks, for any claimant aged between 18 and 24 years who has less than 6 months work history since leaving full-time education.

(3) The Derbyshire Mandatory Youth Activity Programme is a scheme delivered in the Derbyshire Jobcentre Plus District comprising up to 30 hours per week of work-related activity for the benefit of the community and up to 6 hours per week of supported work search over a period of 8 weeks, for any claimant aged between 18 and 34 years.

(4) Full-time Training Flexibility is a scheme comprising training of 16 to 30 hours per week, for any claimant who has been receiving jobseeker's allowance for a continuous period of not less than 26 weeks ending on the first required entry date to the scheme.

(5) New Enterprise Allowance is a scheme designed to assist a claimant into self-employed earner's employment comprising guidance and support provided by a business mentor, access to a loan to help with start-up costs (subject to status) and a weekly allowance for a period of 26 weeks once the claimant starts trading.

(6) The sector-based work academy is a scheme which provides, for a period of up to 6 weeks, training to enable a claimant to gain the skills needed in the work place and a work experience placement for a period to be agreed with the claimant, and either a job interview with an employer or support to help participants through an employer's application process.

(7) Skills Conditionality is a scheme comprising training or other activity designed to assist a claimant to obtain skills needed to obtain employment.

(8) The Work Programme is a scheme designed to assist a claimant at risk of becoming long-term unemployed in which, for a period of up to 2 years, the claimant is given such support as the provider of the Work Programme considers appropriate and reasonable in the claimant's circumstances, subject to minimum levels of support published by the provider, to assist the claimant to obtain and sustain employment which may include work search support, provision of skills training and work placements for the benefit of the community."

Jobseekers (Back to Work Schemes) Act 2013

"1. Regulations and notices requiring participation in a scheme

(1) The 2011 Regulations are to be treated for all purposes as regulations that were made under section 17A of the Jobseekers Act 1995 and other provisions specified in the preamble to the 2011 Regulations and that came into force on the day specified in the 2011 Regulations.

(2) The Employment, Skills and Enterprise Scheme mentioned in the 2011 Regulations is to be treated as having been, until the coming into force of the 2013 Regulations, a scheme within section 17A(1) of the Jobseekers Act 1995.

(3) The following are to be treated as having been, until the coming into force of the 2013 Regulations, programmes of activities that are part of the Employment, Skills and Enterprise Scheme

(a) the programmes described in regulation 3(2) to (8) of the 2013 Regulations, and

(b) the programme known as the Community Action Programme,

and references to the scheme are to be read accordingly."

"(4) A notice given for the purposes of regulation 4(1) of the 2011 Regulations (requirement to participate and notification) is to be treated as a notice that complied with regulation 4(2)(c) (details of what a person is required to do by way of participation in scheme) if it referred to

(a) the Employment, Skills and Enterprise Scheme, or

(b) a programme of activities treated under subsection (3) as part of the scheme.

(5) A notice given for the purposes of regulation 4(1) of the 2011 Regulations is to be treated as a notice that complied with regulation 4(2)(e) (information about the consequences of failing to participate) if it described an effect on payments of jobseeker's allowance as a consequence or possible consequence of not participating in the scheme or a programme of activities.

(6) Regulation 4(3) of the 2011 Regulations (notice of changes in what a person is required to do by way of participation in scheme) is to be treated as if at all times

(a) it required the person in question to be notified only if the changes in the requirements mentioned in regulation 4(2)(c) were such that the details relating to those requirements specified in

(i) a notice given to the person under regulation 4(1), or

(ii) a notice given to the person under regulation 4(3) on an earlier occasion,

were no longer accurate, and

(b) it required the person to be notified only of such changes as made the details inaccurate."

"(10) The penalty provisions are to be treated (notwithstanding the amendments made by the 2012 Regulations) as having effect after the relevant time as they did before the relevant time, in relation to a failure to comply with the 2011 Regulations or, as the case may be, the Mandatory Work Activity Scheme Regulations that occurred or began to occur before the relevant time.

(11) In subsection (10) and this subsection

"the penalty provisions" means

(a) in the case of a failure to comply with the 2011 Regulations, the provisions relating to the imposition of a penalty for such a failure that had effect before the relevant time;

(b) in the case of a failure to comply with the Mandatory Work Activity Scheme Regulations, the provisions relating to the imposition of a penalty for such a failure that had effect before the relevant time;

"the relevant time" means the time at which the 2012 Regulations came into force" (i.e. 22 October 2012).

"(12) A penalty imposed on a person before or after the coming into force of this Act for

(a) failing to participate in a scheme within section 17A(1) of the Jobseekers Act 1995, or

(b) failing to comply with regulations under section 17A of that Act,

is to be treated as lawfully imposed if the only ground or grounds for treating it as unlawfully imposed is or are removed by subsections (1) to (10)."

Retrospective legislation

"Dislike of ex post facto law is enshrined in the United States Constitution and in the constitutions of many American states, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back).[1] Retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law'.[2] The basis of the principle against retrospectivity is 'no more than simple fairness, which ought to be the basis of every legal rule'.[3]

Retrospectivity is artificial, deeming a thing to be what it was not. Artificiality and make-believe are generally repugnant to law as the servant of human welfare. So it follows that the courts apply the general presumption that an enactment is not intended to have retrospective effect. As always, the power of Parliament to produce such an effect where it wishes to do so is nevertheless undoubted."

" two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done."

Article 6 ECHR

(1) Legal principles

In Zielinkski & Ors v France (2001) 31 EHRR 19, the ECtHR held that the French legislature had acted in breach of Art. 6(1) by passing retrospective legislation in respect of allowances payable to staff in social security offices during the course of ongoing litigation in which the State was a party. The ECtHR stated, at [57]:

"The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislatureother on compelling grounds of the general interest with the administration of justice designed to influence the judicial determination of a dispute."

In Stran Greek Refineries v Greece (1995) 19 EHRR 293, the ECtHR found a violation of Art. 6 when the Greek legislature enacted a law which purported to provide an authoritative interpretation of a previous statute, concerning an oil and gas concession, that was the subject of ongoing legal proceedings between the State and a private entity. The Athens Court of First Instance and Athens Court of Appeal had rejected submissions by the Greek government, seeking to invalidate a substantial arbitration award against it. The legislature intervened with its amending enactment shortly before an appeal to the Court of Cassation. The ultimate effect of the intervention was that the Government's appeal was successful.

"..Greece undertook to respect the principle of the rule of law. This principle, which is enshrined in Article 3 of the Statute of the Council of Europe, finds expression, inter alia, in Article 6 of the Convention. . As regards disputes concerning civil rights and obligations, the Court has laid down in its case law the requirement of equality of arms in the sense of a fair balance between the parties."

"49. The Court is not persuaded by this reasoning. The requirement of fairness applies to proceedings in their entirety; it is not confined to hearings inter partes. There can be no doubt that in the instant case the appearances of justice were preserved, and indeed the applicants did not complain that they had been deprived of the facilities necessary for the preparation of their case. The principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute. The wording of paragraphs 1 and 2 of section 12 taken together effectively excluded any meaningful examination of the case by the First Division of the Court of Cassation. Once the constitutionality of those paragraphs had been upheld by the Court of Cassation in plenary session, the First Division's decision became inevitable.

50. In conclusion, the State infringed the applicants' rights under Article 6(1) by intervening in a manner which was decisive to ensure that the imminent outcome of proceedings in which it was a party was favourable to it. There has therefore been a violation of that Article."

In Scordino v Italy (No. 1) (2007) 45 EHRR 7, the ECtHR found a violation of Article 6 where the Government enacted a law in 1992 which altered the awards of compensation for expropriated land from the market value approach which applied to pending proceedings. The ECtHR reached this conclusion notwithstanding that the law in force at the time of the expropriation order giving rise to the applicants' compensation proceedings had been less favourable to the applicants than the new law of 1992.

130 Accordingly, even though the proceedings were not annulled under s.5 bis of Law No.359/1992, the provision in question, which was applicable to the judicial proceedings that the applicants had instituted and which were pending, had the effect of definitively modifying the outcome by defining retrospectively the terms of the debate to their detriment. Although the Government submitted that the legislative provision was not aimed specifically at the present dispute, or any other dispute in particular, the Court considers that, as it was immediately applicable, it had the effect of frustrating proceedings then in progress of the type brought by the applicants. The manifest object, and the effect, of the impugned provision was in any event to modify the applicable rules relating to compensation, including in the case of judicial proceedings then in progress to which the state was a party.

. .

132 In the Court's view, the Government have not demonstrated that the considerations to which they referred, namely, budgetary considerations and the legislature's intention to implement a political programme, amounted to an "obvious and compelling general interest" required to justify the retrospective effect that it has acknowledged in certain cases."

The Defendant relied, in particular, upon the case of National & Provincial Building Society & Ors v United Kingdom (1998) 25 EHRR 127 in which the ECtHR found that legislation to close an unforeseen tax loophole was compatible with Art. 6(1) notwithstanding that it determined legal proceedings in favour of the UK Government.

"..the Court is especially mindful of the dangers inherent in the use of retrospective legislation which has the effect of influencing the judicial determination of a dispute to which the State is a party, including where the effect is to make pending litigation unwinnable. Respect for the rule of law and the notion of a fair trial require that any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection.

However, Article 6(1) cannot be interpreted to prevent any interference by the authorities with pending legal proceedings to which they are a party . in the cases at issue the interference caused by .. the 1992 Act was of a much less drastic nature than the interference .. in the Stran Greek Refineries .. v Greece case. In that case the applicants and the respondent state had been engaged in litigation for a period of nine years and the applicants had an enforceable judgment debt against the State in their favour. The judicial review proceedings launched by the applicant societies had not even reached the stage of an inter partes hearing. Furthermore, in adopting the 1992 Act with retrospective effect the authorities in the instant case had even more compelling public interest motives to make the applicant societies' judicial review proceedings and the contingent restitution proceedings unwinnable than was the case with the enactment of section 53 of the 1991 Act. The challenge to the Treasury Orders created uncertainty over the substantial amounts of revenue collected from 1986 onwards.

It must be observed that the applicant societies in their efforts to frustrate the intention of Parliament were at all times aware of the probability that Parliament would equally attempt to frustrate those efforts having regard to the decisive stance taken when enacting section 47 of the Finance Act 1986 and section 53 of the 1991 Act. They had engaged the will of the authorities in the tax sector, an area where recourse to retrospective legislation is not confined to the United Kingdom, and must have appreciated that the public interest considerations in placing the 1986 Regulations on a secure legal footing would not be abandoned easily."

First, Ogis-Institut Stanislas & Ors v France Apps 42219/98, 54563/00, BAILII: [2004] ECHR 232 in which the ECtHR held that there was no violation of Art. 6 where the French legislature enacted legislation which retrospectively reduced the rate of reimbursement for pension and other benefits for private sector school staff. When the legislation was enacted, the applicants' claims were at varying stages of the legal process but none was concluded.

Second, EEG-Slachthuis Verbist v Belgium App. 60559/10, BAILII: [2005] ECHR 954, a slaughterhouse company challenged legislation which retrospectively validated a royal decree passed in 1987 imposing compulsory contributions to an animal health and production fund. In 1991 the European Commission found the scheme contrary to EU law and in 1994 the ECJ and Belgian courts required repayment of contributions to certain claimants. In 1998 there was a partial codification of the 1987 decree, providing for reimbursement only in respect of imported animals, not domestic ones. The Government claimed that the true purpose of the legislation was to correct two defects in the original legislation, namely, discrimination in respect of imported animals and the failure to notify the European Commission in advance, not to intervene in the court proceedings (at 16).

The Defendant relied also upon Tarbuk v Croatia App. 31360/10, BAILII: [2012] ECHR 2049, in which the applicant claimed compensation under the Code of Criminal Procedure for detention without trial after his prosecution for espionage was abandoned, pursuant to the General Amnesty Act granting immunity in connection with the Homeland War between 1990-1996.

(2) The issues in this claim

First, I consider that Art. 6(1) is engaged. Case law has established that rights to social security benefits, whether contributory or state-funded, can constitute "civil rights" within the meaning of Art. 6.[4] Both Claimants were eligible to receive JSA and were in receipt of the benefit. Both were pursuing legal claims to determine their "civil rights and obligations". The First Claimant was pursuing a judicial review claim (Reilly No. 1) against an arm of the State, in which she challenged the lawfulness of the decision to require her to participate in an unpaid work scheme or face a sanction, namely, loss of JSA for a prescribed period. The Second Claimant was pursuing statutory appeals against decisions made by the Secretary of State for Work and Pensions to require him to participate in an unpaid work scheme and to impose sanctions, namely loss of JSA for prescribed periods when he refused.

" we need the Bill to provide certainty that the Government are not in a position where we will have to repay previous benefit sanctions, and can impose sanctions where decisions have been stayed, in respect of claimants who have failed to take part in employment programmes without good reason. We have made it clear that we will take steps to ensure that claimants cannot expect a sanction refund as a result of this judgment, and there is a compelling public interest for taking those steps.

The Bill does not overturn previous appeals that have succeeded on the basis of good cause and it does not prevent claimants from appealing a sanction on the basis of good reason. Instead, it ensures that claimants who have failed to participate with no good reason do not obtain an undeserved windfall payment. We estimate that such a windfall could cost the public purse up to £130 million. That is money that would be better spent on people who take their responsibilities seriously, and it is in the public interest that we ensure this.

There is also an important public interest, as the Court of Appeal recognised, in getting people back to work by ensuring that jobseeker's allowance is paid only to those who are actively seeking employment and who engage with attempts made by the state to achieve that end, and that those who do not do so face the appropriate consequences. The Bill will protect this public interest by ensuring that those who have not engaged with attempts made by the state to return them to work face the appropriate consequences, rather than receiving an undeserved windfall.

The Government respect the general principle that Parliament should not legislate to reverse the effects of the judgments of the court for past cases unless the situation is exceptional. However, it is entirely proper to enact such legislation if there is a compelling reason to do so. There is a compelling reason here on three grounds: first, the cost involved; secondly, the claimants affected do not deserve a windfall payment; and, thirdly, this is an unusual case in social security legislation where a court or tribunal has a retrospective effect.

I have said that we fundamentally disagree with the court's verdict with respect to the lawfulness of the ESE Regulations and the notices given under them. We believe that those regulations were correctly drafted. They were drafted to be flexible enough to encompass a wide range of programmes designed to support jobseekers into work. There was no clear and identified need to go further than the ESE regulations in order to lawfully mandate claimants to our schemes.

..

Nevertheless, following the High Court judgment we revised all referral notices to comply with the judgment and sent letters clarifying the position to the then claimants impacted by the decision. That allowed us to continue to operate the schemes as intended.

It is right that we are able to operate our schemes as intended, giving jobseekers the opportunity to improve their chances of moving into work, with appropriate consequences for those who fail to take up that opportunity. It is right that government resources are targeted on those claimants who are actively seeking employment and taking all reasonable steps to improve their chances of securing employment and that resources are not wasted on those who have not met their responsibilities."

"In almost all cases regarding social security decisions, the decisions of a court or tribunal are only prospective in nature. That is because the most common way in which to challenge a social security decision, including the underlying regulations, is to bring an appeal to the First-tier Tribunal. If that happens, the normal route is followed and the decision of the tribunal will not have a retrospective effect because of Section 27 of the Social Security Act 1998. It is only because there is an anomaly in the text of Section 27 that it does not apply to judicial review cases."

"this Bill contravenes two fundamental constitutional principles. First, it is being fast-tracked through Parliament when there is no justification whatever for doing so. Secondly, the Bill breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action. Of course, Parliament may do whatever it likes  Parliament is sovereign  but the Bill is, I regret to say, an abuse of power that brings no credit whatever on this Government."

a) the claimant/s who brought the test case;

b) other claimants whose appeals to the FTT or higher tribunals or courts were pending at the date of the test case decision;

c) claimants whose cases had been 'stockpiled' at the date of the test case decision i.e. where the DWP had deferred its decision under s.25(2) & 3(a), Social Security Act 1998, which is a power typically exercised pending the outcome of a test case.

a) approximately 2,475 appeals to the FTT have been stayed pending the Supreme Court judgment; b) approximately 37 appeals to the Upper Tribunal, and applications for permission to appeal, have been stayed pending the Supreme Court judgment; c) in approximately 25 cases the FTT has determined an appeal against the Secretary of State on the basis of Reilly No. 1. In 19 of those cases, permission is being sought to appeal out of time. In 6 of those cases the Secretary of State did not lodge an application for permission to appeal in time and the benefit has been repaid.

"43. In the event that it were to be considered that the proposed legislation interfered with property rights under Article 1 of Protocol 1 of the ECHR, the Government considers that any such interference is justified as there are compelling public interest reasons for doing so, given the significant cost to the public purse of repaying previously sanctioned benefits, and as the aim of the proposed legislation is intended to restore the law to that which Parliament intended.

44. A claimant might also argue that legislation which removes their right to a refund of sanctioned benefits or allows the Secretary of State to impose a sanction, notwithstanding the Court of Appeal's decision, is a breach of their right of access to court under ECHR Article 6.

45. If no legal claim has been brought on the grounds that the ESE Regulations are ultra vires and/or that the notice issued under them is non-complaint prior to the enactment of the proposed legislation, the Government considers that Article 6 is not engaged at all since the claim to entitlement to benefit , and any dispute regarding a benefit decision thereon which would require access to the courts remains hypothetical.

46. Similarly, for cases where the Secretary of State has not yet made a sanction decision, the Government considers that Article 6 will not be engaged as there will be no potential dispute about the right  the effect of the legislation will be that there can be no right to object to the sanction on the notice or vires grounds.

47. Even if the proposed legislation would interfere with a right of access to court, the Government considers that the interference is justified for similar reasons as for Article 1 of Protocol 1.

48 These issues were considered in Stran Greek Refineries and Stratis Andreadis v Greece (09.12.1994) and National & Provincial Building Society v UK (23.10.1997). As with that latter case, the legislation would have the effect of closing a loophole in order to give effect to the original intention of Parliament, which is not disputed."

a) the Government had already passed validating retrospective legislation (Finance Act 1991) before the applicant building societies commenced their claims and so they could have been under no illusions that further legislation would be forthcoming if it was required to enforce the payment of tax due; b) the ECtHR found that the applicant building societies were seeking to frustrate the intention of Parliament and exploiting a loophole (at [112]); c) the Finance Act 1991 expressly exempted the Woolwich Building Society, which had brought the original claim, from any retrospective effect. The ECtHR affirmed the appropriateness of this, at [118]; d) the ECtHR found that the decision to legislate was not targeted at the applicants' legal proceedings (at [110]), which had not even reached an inter partes stage ([112]).

"..any scheme must be such as has been authorised by Parliament. There is a constitutional issue involved. The loss of jobseeker's allowance may result in considerable personal hardship, and it is not surprising that Parliament should have been careful in making provision for the circumstances in which the sanction may be imposed "

"Regulation 4 recognises the need to give appropriate information to claimants. That requirement reflects administrative law principles applicable when it is proposed by regulation to impose sanctions. Claimants must be made aware of their obligations and of the circumstances in which, and the manner in which, sanctions will be applied."

" it seems clear to us that regulation 2 does not satisfy the requirements of section 17A(1). The courts have no more important function that 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 Corpn. 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 "For practical purposes, the rule of law.. breaks down because the aggrieved subject's remedy is gravely impaired"."

"64. the administration of a scheme by which a person may be required to engage in unpaid work on pain of discontinuance of benefits is a matter of considerable importance to a claimant for jobseeker's allowance. (It is also of significance to the public at large, which has a legitimate interest in the way that public funds are disbursed and in proper steps being taken to encourage and assist such claimants to obtain full employment). For the individual, the discontinuance or threat of discontinuance of jobseeker's allowance may self-evidently cause significant misery and suffering "

"65. Fairness therefore requires that a claimant should have access to such information about the scheme as he or she may need in order to make informed and meaningful representations to the decision-maker before a decision is made."

"In relation to Miss Reilly and to Mr Wilson it is important that it is appreciated that each has been actively looking for work: they have not taken their objections to the overall scheme as a means of avoiding employment and seeking simply to rely on benefits. Miss Reilly had (and, one hopes, still has) a primary career ambition. Her original complaint arose from what she was wrongly told was a compulsory placement on a scheme that (a) impeded her voluntary efforts to maintain and advance her primary career ambition and (b) having embarked upon it, from her perspective, did not offer any worthwhile experience on an alternative career path. It is not difficult to sympathise with her position from that point of view. Mr Wilson had more fundamental objections to a compulsory unpaid scheme (which indeed it was in his case) which, from his perspective, was not tailored to his own needs and would impede his continuing efforts to find employment, but again there is no suggestion in his case that he would not take suitable employment if he could find it."

Finally, I reject the Defendant's submission that the Court should not find a violation of Art 6(1) in cases such as these if there is not also a violation of A1 P1, relying on a passage in R (St Matthews (West) Ltd & Others v Her Majesty's Treasury & Others [2014] EWHC 1848 (Admin) at [91]-[92], which cited Lord Brown in AXA General Insurance Ltd v Lord Advocate [2012] 1 AC 868. In AXA, the Lord Ordinary had found that there was no violation of Art. 6(1) on the facts of the case, and that ruling was not appealed to the Supreme Court. In considering the alternative claim under A1 P1, Lord Brown said, obiter, that "the appellants have never thereafter sought to return to [the Art. 6(1) claim]  understandably, I think, because a challenge of this nature must in reality stand or fall upon the effect of the legislation generally. It would be absurd to strike down legislation like this merely because pending actions are included within its scope." (at [80]). At [83], Lord Brown expressed his view that the Art. 6(1) test of "compelling grounds of public interest" would not have been satisfied, but the lower test under A1 P1 ("in the public interest") was satisfied. In my judgment, if the appellants had been able to establish a violation of Art. 6(1), the Court could not, and indeed would not, have refused to uphold their claim on the basis that an alternate claim under A1 P1 had not been established. This would be contrary to both ECtHR and domestic law and practice. The rights protected by Art. 6(1) and A1 P1 differ in nature, and there are legitimate reasons for allowing a greater or lesser interference with those rights by the State.

Article 1 of Protocol 1 ECHR

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

"My decision is that a sanction is imposed for the period 25/05/12 to 21/06/2012 This is because [the Second Claimant] failed, without good cause, to participate in the Work Programme and the Employment, Skills and Enterprise Scheme "

"38. The principles which apply generally to cases under art. 1 of Protocol No. 1 are equally relevant when it comes to social and welfare benefits. In particular, art. 1 of Protocol No. 1 does not create a right to acquire property. This provision places no restriction on the contracting state's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, the contracting state has in force legislation providing for the payment as of right of a welfare benefit  whether conditional or not on the prior payment of contributions  that legislation must be regarded as generating a proprietary interest falling within the ambit of art. 1 of Protocol No. 1 for persons satisfying its requirements.

39. In the modern democratic state many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security and provide for benefits to be paid  subject to the conditions of eligibility  as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding art. 1 of Protocol No, 1 to be applicable.

40. The mere fact that a property right is subject to revocation in certain circumstances does not prevent it from being a "possession" within the meaning of art.1 of Protocol No. 1, at least until it is revoked. On the other hand where a legal entitlement to the economic benefit at issue is subject to a condition, a conditional claim which lapses as a result of the non-fulfilment of the condition cannot be considered to amount to "possessions" for the purposes of art. 1 of Protocol No. 1."

" the Court's case law does not contemplate the existence of a "genuine dispute" or an "arguable claim" as a criterion for determining whether there is a "legitimate expectation" protected by [A1 P1]. On the contrary, the Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an "asset" only where it has a sufficient basis in national law, for example where there is settled case law of the domestic courts confirming it."

a) Stran Greek Refineries (supra). The ECtHR found that the applicants had a sufficient propriety interest to amount to a "possession" under A1 P1, as they had obtained a final and binding arbitration award and the lawfulness of the award had been upheld in the court of first instance and on appeal. b) Pressos Compania Naviera SA v Belgium (1996) 21 EHRR 301. The ECtHR held that a claim for damages in tort against negligent ships' pilots was a possession under A1 P1. In December 1983, the Court of Cassation reversed previous authority and held that the pilots could be personally liable in tort. The legislature enacted legislation in 1988 establishing an immunity for pilots. c) Draon v France (2006) 42 EHRR 40. Legislation was enacted which changed the existing law and prevented parents of children recovering damage in negligence claims against a health authority for "special burdens" arising from a child's disability. The applicants had an ongoing legal claim under this head, for which they had received interim payments. France conceded before the ECtHR that the applicants had a "possession" within A1 P1 because they had an existing claim, based on settled case law, and a legitimate expectation of obtaining damages.

Conclusions