Declan Heavey’s Grounds of Appeal

In the High Court of Justice Court of Appeal (Civil Division) on appeal from Queen’s Bench Division Administrative Court

CO Ref: CO/11759/2010

In the matter of a claim for Judicial Review The Queen on the application of DECLAN HEAVEY versus

1. HIGHGATE JOB CENTRE PLUS 2. SECRETARY OF STATE FOR WORK AND PENSIONS

DECLAN HEAVEY’S GROUNDS OF APPEAL FOR PERMISSION TO APPEAL TO THE COURT OF APPEAL AGAINST A DECISION BY THE ADMINISTRATIVE COURT REFUSING PERMISSION TO APPLY FOR JUDICIAL REVIEW

1.

This application for permission to appeal to the Court of Appeal against a decision by the Administrative Court refusing permission to apply for judicial review lies on questions of law. It is acknowledged that a finding of fact by a lower court or tribunal cannot be appealed to the Court of Appeal. However, the Court regards issues such as whether there was any evidence to support a finding of fact, or any evidence on which a reasonable judge could have made a particular factual finding, and a failure to give adequate reasons for a finding of fact, as issues of law.

2.

Mr. John Howell QC (sitting as a Deputy High Court Judge) established in his order dated 1 April 2011 that the issue in this claim is whether the proposed variations to the appellant’s “My Deal” agreement/contract with Action for Employment (“A4E”) involved proposed variations to his Jobseeker’s Agreement (“JSAg”) agreed with Jobcentre Plus. If they did, they were required to be referred by the appellant’s jobcentre, Highgate Jobcentre Plus, to the Secretary of State for Work and Pensions (having been asked by the appellant to do so) under section 10(5) of the Jobseekers Act 1995 (“the 1995 Act”).

3.

Although Mr. Justice Mitting ruled on 22 November 2011 following an oral hearing on the appellant’s application for permission to apply for judicial review that the claim was not “Totally without Merit”, he failed to give adequate reasons as to why proposed variations to the appellant’s “My Deal” contract with A4E did not involve proposed variations to his JSAg.

4.

The appellant submits that A4E repeatedly proposed variations to his JSAg, through his “My Deal” contract in the first instance, and subsequently through his “My Journey Plan”, a further document referred to in the “My Deal”, including, but not limited to, raising sanction doubts on the appellant's joint claim for Jobseeker's Allowance (“JSA”) because he did not attend unagreed interviews for job vacancies in food and retail outlets and in telesales, notwithstanding that these types of jobs were outside the restrictions notified to A4E by Jobcentre Plus.

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5.

Mr. Justice Mitting also failed to give adequate reasons as to why judicial review was not the appropriate procedure to deal with the claim. Broadly, in order to succeed, a claim for judicial review needs to show that either: (a) the person or body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so; or (b) a decision or action that has been taken is ‘beyond the powers’ of the person or body responsible for it.

6.

As the appellant pointed out in the claim giving rise to these proceedings, Highgate Jobcentre Plus’s decision of 13 September 2010 not to refer proposed variations to his JSAg to the Secretary of State for Work and Pensions under section 10(5) of the 1995 Act (having been asked by the appellant to do so) constitutes a failure to act in accordance with statutory provision, thereby qualifying for judicial review as a remedy of last resort.

7.

Further, Highgate Jobcentre Plus neither replied to the appellant’s appeal of this “decision” nor forwarded the appeal to the Tribunals Service for a ruling whether it may go ahead or not.

Highgate Jobcentre Plus further failed to reply to the appellant’s letter before claim pursuant to the judicial review pre-action protocol (a holding reply was received by the appellant after his claim had been issued on 11 November 2010). In an order dated 25 November 2010, Mr. Justice Sycamore ordered Highgate Jobcentre Plus to write to the appellant and the Court by 4.00pm on 1 December 2010.

8.

The appellant is grateful for the ruling that his claim is not “Totally without Merit”, in that a decision by Highgate Jobcentre Plus not to refer proposed variations to his JSAg to the Secretary of State for Work and Pensions provides him with no remedy under the 1995 Act for discriminatory practice by private sector providers of welfare-to-work programmes, raising an important point of principle or practice, namely, no remedy for discriminatory practice – formally

by A4E and currently by Reed in Partnership.

9.

The appellant once again respectfully requests that the decision by Highgate Jobcentre Plus of 13 September 2010 not to refer proposed variations to his JSAg to the Secretary of State for Work and Pensions under section 10(5) of the 1995 Act be judicially reviewed. He submits that this decision has proven itself to be wrong/inadequate in light of an escalating series of harassing and discriminatory acts by A4E notwithstanding the written intervention of the Minister for Equalities.

10. In addition to raising an important point of principle or practice (no remedy for discriminatory practice), the appellant also cites public interest as a compelling reason for the Court to hear his appeal. He considers that the manner in which private sector providers are allowed to exercise powers not granted to them under the 1995 Act to be a matter of public importance. It impacts on the public generally who will be anxious to ensure that they as a whole are properly protected by appropriate steps being taken by DWP/Jobcentre Plus.

11. This is not simply a matter that generates interest or concern in the minds of the public but legitimately affects them in terms of their overall trust and confidence in the legal system and the protection which is afforded in the event of misdeeds by private sector providers of welfare-towork programmes, especially in these increasingly tough times of Conservative-led government cutbacks.

12. According to an article titled “Young jobseekers told to work without pay or lose unemployment benefits”, published in the Guardian on 16 November 2011, the DWP has clarified that there is a Page 2 of 3

clause which allows jobcentre case workers around the country to force unemployed people into placements. Britain’s jobless young people are being sent to work for supermarkets and budget stores for up to two months for no pay and no guarantee of a job. The Guardian reveals that once people “express an interest”, including verbal consent, in doing work experience they face losing their JSA if they back out, resulting in people being forced to work against their will in breach of their human rights under article 4(2) of the Human Rights Act 1998, which states: “No one shall be required to perform forced or compulsory labour.”

13. It would be in the public interest for the Court of Appeal to give an authoritative statement of the law, as provided by Mr. Howell QC in this case, that if providers propose a variation to a JSAg, then that proposed variation is required to be referred by an employment officer (as defined in section 9(13) of the 1995 Act) to the Secretary of State for Work and Pensions (having been asked by the claimant to do so) under section 10(5) of the 1995 Act. 14. The Court is respectfully urged to grant permission to appeal to the Court of Appeal. It is further requested that if this permission is refused on the papers that the opportunity for the appellant to renew his application orally, in court, not be denied to him in light of Mr. Justice Mitting’s ruling that the claim is not “Totally without Merit”.

DECLAN HEAVEY 83 PRIORY GARDENS LONDON N6 5QU 28 NOVEMBER 2011

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