Declan Heavey’s skeleton argument by Lola Heavey

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 SKELETON ARGUMENT FOR PERMISSION TO APPEAL TO THE COURT OF APPEAL AGAINST A DECISION BY THE ADMINISTRATIVE COURT REFUSING PERMISSION TO APPLY FOR JUDICIAL REVIEW

As stated in the Grounds of Appeal, the appellant is seeking permission to appeal to the Court of Appeal in order to raise an important point of principle or practice, namely that he is being provided with no remedy under the Jobseekers Act 1995 (“the 1995 Act”) for discriminatory practice by private sector providers of welfare-to-work programmes. The appellant requests that the decision by the Administrative Court refusing permission to apply for judicial review be reconsidered by the Court once again taking into consideration his e-letter to his MP, Equalities Minister Lynne Featherstone, dated 1 August 2011, concerning 132 breaches of contract by Action for Employment (“A4E”). A copy of this e-letter and its attachments are filed in the appellant’s bundle (pages 76-91).

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 A4E on 16 August 2010 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 1995 Act. A copy of this order is filed in the appellant’s bundle (page 57).

Although Mr. Justice Mitting ruled on 22 November 2011 following an oral hearing on the appellant’s renewed 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 on 16 August 2010 did not involve proposed variations to his JSAg.

From 26 July 2010 to 1 August 2011, the appellant and his wife were mandated by Highgate Jobcentre Plus to attend the Flexible New Deal (“FND”) programme delivered by A4E. On 16 August 2010, by means of its “My Deal” contract, A4E proposed at least two variations to the appellant’s JSAg. Firstly, the appellant was asked to sign for a new clause in his “My Deal” Page 1 of 7

contract that stated he would “Agree and sign My Journey Plan”. Secondly, he was asked to sign for an amendment to a clause in his “My Deal” contract dated 26 July 2010, stating that he would “Take part in Work Boost”, as opposed to the original document which stated “Take part in relevant Work Boosts”. A copy of the proposed “My Deal” contract dated 16 August 2010 and a copy of the “My Deal” contract dated 26 July 2010 were submitted with the claim giving rise to these proceedings, and are filed in the appellant’s bundle (page 70 and 71 respectively). 5.

In a subsequent letter dated 16 August 2010 to A4E and Highgate Jobcentre Plus, the appellant objected to being asked to agree and sign his “My Journey Plan” without seeing it first, as well as to being asked to agree to take part in any ‘work boost’. Both were beyond the restrictions notified to A4E by Jobcentre Plus (see paragraph 8 below). He requested that these proposed variations to his JSAg be referred to the Decision Maker (the Secretary of State for Work and Pensions) under the 1995 Act. A copy of this letter and its enclosures were also submitted with the claim giving rise to these proceedings, and are filed in the appellant’s bundle (pages 66-71).

In a letter dated 13 September 2010, Highgate Jobcentre Plus notified the appellant that the matter had been referred back to A4E to be taken forward. This is the original decision which was the subject of the application to the Administrative Court and is filed in the appellant’s bundle (page 65).

Subsequently, with the appellant’s “My Deal” contract having been brought back into line with his JSAg, A4E sought on numerous occasions to vary the terms of his JSAg through his “My Journey Plan”, 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. Repeated requests by the appellant that proposed variations to his JSAg be referred to the Secretary of State for Work and Pensions under section 10(5) of the 1995 Act were simply ignored by Highgate Jobcentre Plus. Please see the e-letter to Minister Featherstone referred to in paragraph 1 above and filed in the appellant’s bundle (pages 76-82).

The appellant's JSAg dated 22 April 2010 clearly stated that the types of jobs the appellant was looking for were Youth Work, Care Work and Community Work. The appellant's subsequent JSAgs, the first of which is dated 19 May 2011, state that that the types of jobs the appellant is looking for are Youth Work, Support Work and Community Work. (Other agreed restrictions on the appellant's availability or types of work: looking for Project Developer, Campaign Organiser and Events Coordinator, etc in the fields of the stated Job Goals.) A copy of the JSAgs dated 22 April 2010 and 19 May 2011 are filed in the appellant’s bundle (pages 72-73 and 74-75 respectively).

The appellant and his wife were referred to A4E as part of a Department for Work and Pensions (“DWP”) initiative to support customers back into sustained employment. Nonetheless, A4E refused to provide the appellant with a relevant 'work boost', a four week work related activity/work period, otherwise known as a Mandatory Work Related Activity (“MWRA”). A4E insisted that the appellant agree to be trained as a warehouse operative if not prepared to accept a 'work boost' in a supermarket. The appellant's wife was not even offered the MWRA, despite her repeated requests for same, a number of which were written into her Page 2 of 7

“My Journey Plan”. Please see the e-letter to Minister Featherstone filed in the appellant’s bundle (page 76-82). 10. Fundamental to the appellant’s claim is the premise that A4E repeatedly proposed variations to his JSAg, through his “My Deal” contract in the first instance, and subsequently through his “My Journey Plan”, and that the offending documents were required to be referred by an employment officer from 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 1995 Act. The appellant was asked by A4E to sign for activities in his “My Journey Plan” every two to three weeks. 11. 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 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. A copy of this newspaper article is filed in the appellant’s bundle (pages 92-94). 12. It follows that if the appellant had signed for a proposed variation to his JSAg in either his “My Deal” contract or in his “Journey Plan”, and failed to carry out an activity, a compliance doubt would have been raised, almost certainly resulting in him being stripped of his JSA. It further follows that A4E would have succeeded in varying the appellant’s JSAg without the involvement of an employment officer from Highgate Jobcentre Plus. As the legal framework and the facts make clear, the appellant’s premise cannot be said to be false. 13. Mr. Justice Mitting stated that judicial review was not the appropriate procedure to deal with the appellant’s claim, but again failed to give adequate reasons as to why not. 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. 14. 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 constitutes a failure to act in accordance with statutory provision, thereby qualifying for judicial review as a remedy of last resort. 15. 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. A copy of this order is filed in the appellant’s bundle (page 28).

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16. The appellant is grateful for Mr. Justice Mitting’s 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. 17. The appellant has made an application to the European Court of Human Rights, dated 19 October 2011, concerning the interception of his communications and directed surveillance. Paragraph 17 states, “The applicant's renewal hearing in Heavey v. Highgate Jobcentre Plus [renamed by the Administrative Court Heavey v. Highgate Jobcentre Plus and the Secretary of State for Work and Pensions] is scheduled for 22 November 2011. The applicant and his wife remain deeply concerned about what lies in wait for them with the next private sector provider of a welfare-to-work programme.” On 20 October 2011, Highgate Jobcentre Plus issued letters notifying the appellant and his wife that they must take part in the Work Programme delivered by Reed in Partnership. These letters state: “You must complete any activities that Reed in Partnership tells you to do.” 18. The FND programme ended on 1 September 2011. However, the Work Programme which replaces it also offers no remedy for discriminatory practice by private contractors. According to guidelines set out under the Work Programme contract, where a participant of the programme is unhappy with the service they are receiving from a provider, he may raise a complaint with either the provider or the Jobcentre. If the participant is not satisfied with the response to their complaint against the provider, they can escalate the issue to the Independent Case Examiner (“ICE”). The ICE will normally only accept a complaint for investigation if the participant has already received a final response from the provider or waited eight weeks for a response. 19. Throughout the period the appellant and his wife attended A4E, Highgate Jobcentre Plus ignored numerous complaints he lodged with the Jobcentre concerning an escalating series of harassing and discriminatory acts by A4E, culminating in an Action Plan when the appellant was leaving A4E on 1 August 2011 which is actionable for fraudulent misrepresentation. According to Mr. Mathew Jackson, A4E Regional Director, Highgate Jobcentre Plus was in fact fully supportive of A4E’s conduct towards the appellant. In a letter to Minister Featherstone dated 1 June 2011, Mr. Jackson, writing following Minister Featherstone’s letter to Ms. Emma Harrison, Chairman of A4E, dated 11 May 2011, confirms that A4E “at all times worked closely with Highgate Jobcentre Plus”. He adds: “They have confirmed our approach and supported our stance with Mr. Heavey.” A copy of this letter on behalf of Ms. Harrison is filed in the appellant’s bundle (pages 84-85). 20. The appellant further submits that ICE could not have provided a remedy for the escalating series of harassing and discriminatory acts by A4E. No sooner would the appellant make a complaint or have a complaint resolved than he would have another, often more serious, matter to contend with. The 132 breaches of contract alleged by the appellant cover 29 September 2010 through to 1 August 2011, including the falsification of documentation, the unauthorised and prejudicial recording of his meetings by a secretary/typist, and the consistent false reporting of his views. Seldom would A4E respond to the appellant’s letters, and waiting eight weeks for a response to the vast majority of letters was rarely an option. Moreover, it can take more than 12 months from the date of acceptance of a complaint for ICE to complete their investigations. Page 4 of 7

(According to ICE performance figures as at 30 September 2011, 45% of complaints take more than 6 months and 15% of complaints take more than 12 months.) A complaint that the appellant lodged with ICE against Highgate Jobcentre Plus on 30 April 2010 took almost 10 months to investigate, by which time the complaint was no longer relevant. On 22 October 2011, the appellant lodged another complaint with ICE, this time against Jobcentre Plus for not adhering to the provisions of its complaints procedure. This complaint has yet to be examined by ICE because the wording of the complaint has been the subject of correspondence for more than a month. 21. The appellant and his wife are deeply concerned that Highgate Jobcentre Plus has referred them to an unsuitable provider that will mandate activities to make them more vulnerable to the interception of their communications and directed surveillance (see paragraph 17 above). The appellant’s King’s Cross Reed in Partnership Employment Adviser, Mr. Asim Khan, has already passed a complaint of his about travel expenses to the local Reed in Partnership Business Manager. Despite that DWP Guidelines for the Work Programme state that participants attending provision are entitled to a refund of the travel costs they incur, both the appellant and his wife were refused their travel costs to and from the King’s Cross branch, which is located in another borough. DWP Provider Guidance states: “It is your responsibility to pay the participant’s travel costs as travel expenses are included within the funding received from DWP as part of the overall contract package.” It remains uncertain as to whether this matter has been resolved or not. 22. The appellant submits that the harassment and discrimination he and his wife continue to experience is politically motivated, that it is the product of directed surveillance, and that both the harassment and discrimination are certain to continue. For example, on 10 November 2011 the appellant was forced to drop out of an ECDL Part 2 IT course that he had commenced on 31 October at the Working Men’s College. As soon as the appellant logged into the online courseware at home on 3 November, he and his wife lost their internet access, and continued to do so almost continuously through to 10 November, and regularly since that date. According to the appellant's tutor, Ms. Gillian Burton, it was highly unlikely that he would have been able to pass his first of three online exams on 21 November not having had home internet access. The last distinct period the appellant and his wife lost their home internet connection, they did so continuously for six weeks commencing on 4 July 2011. 23. The appellant and his wife were forced to go on state benefits in July 2005 due to the level of political opposition they encountered to their establishment of a network of those abused by church, now a non-profit organisation called Network for Church Monitoring (N4CM) at churchandstate.org.uk. In September 2006, the appellant’s joint claim JSA was terminated by the DWP because he did not 'sign on' on 27 September, two days before he was in fact due to sign, on 29 September pro forma. A simple check of the date of the appellant’s previous declarations would have revealed that he signed every second Friday, not on a Wednesday, yet subsequent letters from the appellant to his jobcentre and the Secretary of State for Work and Pensions pointing out the mistake and requesting a review went unanswered, in breach of the Jobseeker's Allowance Regulations 1996. Consequently, the appellant and his wife were forced to live rough on the streets of London for more than 2 1/2 years, where the appellant’s case was dismissed by the High Court (Judicial Review), the Court of Appeal and the European Court of Human Rights. The appellant’s benefits claim was only reinstated three months after he and his wife gained access to a roof over their heads on 13 July 2009 through an acquaintance of theirs in America; this acquaintance made phone calls to Ireland and England after the appellant received Page 5 of 7

an email earlier in the day from the City of London Police confirming that his wife would be physically removed (without a court order) from where they had been sleeping for almost a year, and throughout the night if necessary. 24. The appellant argues in his application to the European Court of Human Rights concerning the interception of his communications and directed surveillance that the Investigatory Powers Tribunal’s conclusion of 1 September 2011 that his complaint and Human Rights Act claim was “obviously unsustainable” lacked credibility. Within two weeks of the appellant’s dispatch of his claim to the Tribunal on 10 August 2011, Facebook disabled his wife's account; their web host, SiteGround, twice blocked their IP address; their live-in landlady, human rights activist Ms. Belinda McKenzie, served them with backdated notice to vacate what has been their home since they came off the street on 13 July 2009; and their local housing authority, Haringey Council, left the appellant with the first of what has now amounted to a fourth £76.92 shortfall in rent to pay. The appellant was particularly aggrieved that the Tribunal dismissed his claim without calling additional evidence, which he had described in his complaint as “wide-ranging”, including third party witnesses. 25. The appellant does not believe that it is irrelevant that since he and his wife came off the street on 13 July 2009, they have been living in the same house that MI5 whistleblower Mr. David Shayler lived in for a couple of years, until around 2007 – nor, for that matter, that Ms. McKenzie has served them with backdated notice to vacate this property by the end of January 2012. According to the BBC, Mr. Shayler “caused the biggest crisis of official secrecy since the spy catcher affair”. Around 2007, Mr. Shayler changed his name to Delores Kane, declared himself to be Jesus, and became a squatter. A New Statesman article published in September 2006 featuring Mr. Shayler and Ms. McKenzie, titled “Meet the No Planners”, gives no indication that Mr. Shayler believed he was the Messiah at that time; whilst a Daily Mail interview with Mr. Shayler explicitly shows he believed himself to be Jesus by June 2007. He has never regained his normal self. 26. The appellant does not concede that his claim is “misconceived” (to quote Counsel for the Secretary of State for Work and Pensions), in that the decision by Highgate Jobcentre Plus on 13 September 2010 not to refer proposed variations to his JSAg to the Secretary of State for Work and Pensions provided him with no remedy under the 1995 Act for discriminatory practice by A4E, raising an important point of principle or practice, namely, no remedy for discriminatory practice. He once again respectfully requests that this decision 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, which he sought to have judicially reviewed in the claim giving rise to these proceedings, has proven itself to be wrong/inadequate in light of the escalating series of harassing and discriminatory acts by A4E notwithstanding the written intervention of the Minister for Equalities. 27. 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. 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 Page 6 of 7

afforded in the event of misdeeds by private sector providers of welfare-to-work programmes, especially in these increasingly tough times of Conservative-led government cutbacks. 28. The Guardian not only reveals that 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 (see paragraph 11 above), but in the same article it is revealed that people are 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.” The appellant submits that in order to safeguard against discrimination and harassment 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. 29. 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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